(12-05-2019 10:01 PM)tanqtonic Wrote:  

(12-05-2019 09:04 PM)RiceLad15 Wrote:  

(12-05-2019 08:38 PM)tanqtonic Wrote:  

(12-05-2019 08:31 PM)RiceLad15 Wrote:  

(12-05-2019 08:10 PM)Owl 69/70/75 Wrote:  Executive privilege is a legitimate concept that exists for several reasons. One, the branches are established a co-equal, so one does not necessarily have to acquiesce to another. Two, a president necessarily has to have conversations with members of his administration that must be considered confidential. Executive privilege is necessary to protect the confidentiality. By the way, conversations with foreign leaders take place under a presumption of confidentiality, because those leaders must sometimes speak frankly.

Executive privilege is not unlimited. But congress does not define the limits, the courts do. The proper procedure for congress, when executive privilege is asserted regarding something they want to get, is to go to the Supreme Court for a decision. Until congress gets a court order, it is legal to ignore the subpoenas. For some reason, they have chosen not to do that, but simply to piss and moan. I can think of a reason, can you?

Appreciate the response. To be clear, I do know that executive privilege exists and is a legitimate concept - despite what Tanq has been saying I think...

So basically the precedent set in Nixon’s case is not enough to influence this issue, and further judicial action is required to decide if this instance is legal?

The assertion of privilege is de facto legal. What is required is a judicial ruling that an exception exists to pierce that de facto legal exercise of privilege.

And, to be clear, it is not absolute. But even if Trump and henchmen were discussing robbing a bank, the presumption is that the assertion is valid. And even after an adverse finding that an exception exists, the former exercise of the privilege is still de facto legal, but the caveat is that the conversation is deemed to fall into an exception to the privilege. That does not make the initial assertion 'illegal', though. (sorry about the aggressive trigger word....)

Kind of a very nuanced point. But one that got a very good grade on final exam many moons ago.

I see what you’re saying here, and it makes sense that you have to treat all instances as being within the bounds of privilege until a legal system says otherwise.

In comparing this instance to Holder withholding documents, it does seem different that witnesses are being completely withheld. Shouldn’t they appear and then not testify regarding instances of executive privilege?

As to the difference of documents v. people: communications are communications. There is zero distinction within a privilege if a communication was via document or via verbal means.

As to the appearance question, the privilege absolutely attaches to communications. If an administration fights a congressional subpoena on documents, that defense is inherently weakened by acquiescing to the production of individuals for ostensibly the same purpose.

Further, if an administration has the right to fight on the production of documents, they should have the same exact right to fight on the production of *anything* --- including that of personnel. I dont see how you could parse the right to shield production of documents from ostensibly the same right that should extend to anything that has such a communication potential.

If you carve an exception for 'production of people', then there is a serious gaping open wound in any right to shield the production of communications in the broad sense.

There is a double layer inherent in people, in that one can be produced and still assert privilege. But the rights accorded under the privilege are broad in scope.

And stupid me, I actually have no issue with broad rights of privilege. To be blunt, they are the cornerstone of my profession.

I'd like to state that I haven't argued that words are different if they are written or spoken, so we agree that they are the same with respect to executive privilege. But a person isn't a communication, and the entirety of their verbal or written communications are not always with the president or in relation to the executive branch, right?

So I don't know if I buy the idea that the production of people creates that gaping wound - those people can then exert executive privilege when questioned about topics that are covered by the privilege.

Thinking about it more, I don't see that as a compelling argument as to why an Executive Branch employee should ignore a subpoena. At a minimum, I think they should at least appear and then exert executive privilege when questioned in relevant areas, even if that area is deemed to be all the questions asked.

On a similar note, how far from the POTUS does executive privilege extend? It doesn't apply to all actions of all components of the Executive Branch, right? Just those directly related directly to presidential powers/those immediately around and interacting with POTUS?