(12-05-2019 08:10 PM)Owl 69/70/75 Wrote:  

(12-05-2019 07:53 PM)RiceLad15 Wrote:  Frankly, you extended that assumption to how I view the current situation. I was asking to understand if you felt there was a limit to executive privilege or if you thought it was absolute. Based on your response I was going to then see where the current situation fell and why you felt the subpoena deniers were able to legitimately use executive privilege in this scenario.
I think you far too frequently assign someone a position they haven’t taken.
I asked OO about the subpoena ignorers because it isn’t, on the surface, a clear cut right or wrong. I was legitimately interested in his thoughts on them, yet he responded to a question to me.
I don’t know enough about executive privilege to make a firm stance on whether they are legally ignoring these subpoena as or not - I just know that they are ignoring the subpoenas.

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?

A nitpick here. The procedure is to get a ruling at the District Court. And if appealed, have that sustained at the DC Court of Appeals. And if that is appealed, have it sustained at the Supreme Court.

The only time this has gone forward that far, it was under expedited review at every stage, iirc.

But with Holder and the Fast and Furious, that took something like 3 and half years to get through the Circuit Appeals court.

(12-05-2019 08:43 PM)tanqtonic Wrote:  

(12-05-2019 08:10 PM)Owl 69/70/75 Wrote:  

(12-05-2019 07:53 PM)RiceLad15 Wrote:  Frankly, you extended that assumption to how I view the current situation. I was asking to understand if you felt there was a limit to executive privilege or if you thought it was absolute. Based on your response I was going to then see where the current situation fell and why you felt the subpoena deniers were able to legitimately use executive privilege in this scenario.
I think you far too frequently assign someone a position they haven’t taken.
I asked OO about the subpoena ignorers because it isn’t, on the surface, a clear cut right or wrong. I was legitimately interested in his thoughts on them, yet he responded to a question to me.
I don’t know enough about executive privilege to make a firm stance on whether they are legally ignoring these subpoena as or not - I just know that they are ignoring the subpoenas.

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?

A nitpick here. The procedure is to get a ruling at the District Court. And if appealed, have that sustained at the DC Court of Appeals. And if that is appealed, have it sustained at the Supreme Court.

How could I forget John Sirica? Although IIRC that case was appealed directly from the district court to the supreme court.

(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:  

(12-05-2019 07:53 PM)RiceLad15 Wrote:  Frankly, you extended that assumption to how I view the current situation. I was asking to understand if you felt there was a limit to executive privilege or if you thought it was absolute. Based on your response I was going to then see where the current situation fell and why you felt the subpoena deniers were able to legitimately use executive privilege in this scenario.
I think you far too frequently assign someone a position they haven’t taken.
I asked OO about the subpoena ignorers because it isn’t, on the surface, a clear cut right or wrong. I was legitimately interested in his thoughts on them, yet he responded to a question to me.
I don’t know enough about executive privilege to make a firm stance on whether they are legally ignoring these subpoena as or not - I just know that they are ignoring the subpoenas.

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?

(12-05-2019 08:57 PM)Owl 69/70/75 Wrote:  

(12-05-2019 08:43 PM)tanqtonic Wrote:  

(12-05-2019 08:10 PM)Owl 69/70/75 Wrote:  

(12-05-2019 07:53 PM)RiceLad15 Wrote:  Frankly, you extended that assumption to how I view the current situation. I was asking to understand if you felt there was a limit to executive privilege or if you thought it was absolute. Based on your response I was going to then see where the current situation fell and why you felt the subpoena deniers were able to legitimately use executive privilege in this scenario.
I think you far too frequently assign someone a position they haven’t taken.
I asked OO about the subpoena ignorers because it isn’t, on the surface, a clear cut right or wrong. I was legitimately interested in his thoughts on them, yet he responded to a question to me.
I don’t know enough about executive privilege to make a firm stance on whether they are legally ignoring these subpoena as or not - I just know that they are ignoring the subpoenas.

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?

A nitpick here. The procedure is to get a ruling at the District Court. And if appealed, have that sustained at the DC Court of Appeals. And if that is appealed, have it sustained at the Supreme Court.

How could I forget John Sirica? Although IIRC that case was appealed directly from the district court to the supreme court.

I actually have to backtrack after a quick ponder..... the Nixon case was decided in the context of a criminal prosecution subpoena from a grand jury, nonetheless. That weighed dramatically in how the courts looked at and decided the case. So to use the Nixon case as a standard is not on point on a very basic level.

The action of a grand jury and the action of Congress seeking impeachment are two radically different quests. One is absolutely in the realm of the criminal justice system, lock, stock, and two smoking shotguns. The other is fundamentally a political action/construct, and the subpoena power associated with that should engender an entirely different structure and analysis. Even more so given co-equal branches doctrine.

(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:  

(12-05-2019 07:53 PM)RiceLad15 Wrote:  Frankly, you extended that assumption to how I view the current situation. I was asking to understand if you felt there was a limit to executive privilege or if you thought it was absolute. Based on your response I was going to then see where the current situation fell and why you felt the subpoena deniers were able to legitimately use executive privilege in this scenario.
I think you far too frequently assign someone a position they haven’t taken.
I asked OO about the subpoena ignorers because it isn’t, on the surface, a clear cut right or wrong. I was legitimately interested in his thoughts on them, yet he responded to a question to me.
I don’t know enough about executive privilege to make a firm stance on whether they are legally ignoring these subpoena as or not - I just know that they are ignoring the subpoenas.

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.

(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?

(12-05-2019 06:26 PM)mrbig Wrote:  

(12-05-2019 06:11 PM)OptimisticOwl Wrote:  Sorry, I didn't realize I was putting you on the spot.

I agree it is a toxic environment. I think we have the Democrats in congress to thank for that.

Schiff, Nadler, Tlaib, Omar, AOC, and so forth.

No blame for Mitch "The single most important thing we want to achieve is for President Obama to be a one-term president" McConnell? Zero blame? My prediction is that you believe McConnell was justified because of some earlier action by some Democrat. But I say everyone is responsible for their own actions (including Democrats). Someone else being an a$$hat doesn't excuse anyone else being an a$$hat.

Talib, Omar, and AOC are reps who were sworn in 11 months ago. I'm not sure how they are responsible for creating a toxic environment that has been building for decades. Also, they are virtually powerless backbench reps, so they have much less control over the tone and toxicity than party leadership on both sides. But blaming them is like blaming Robbie Picazo (Rice's current QB coach) for the past 4-5 decades of general ineptitude by Rice Football.

Has there ever been a first term President that the opposition did NOT want to make a one term president? That is such a silly thing to hang your hat on. Do you think any Democrats circa 2001-04 did NOT want W to be a one term president? Got any quotes or clips or clips of Democrats saying we need to re-elect any first term Republican president? Somehow you all act as though Mitch is something not only unique, but reprehensible. is this yet another case of the Democratic double standard?

Tlaib, Omar, and especially AOC have been the newsmakers. They have a lot of exposure. Tlaib held what is essentially a impeachment pep rally on her first day in office - wasn't she the one who said she was there to impeach the mother****er? You are concerned about language. Here it is from Tlaib:

https://www.vox.com/policy-and-politics/...**********

Be fair.

My problem with McConnell wasn't his stated political goal, but that he essentially shut down the Senate to any policy that he thought might be viewed as positive for Obama. He did it from the minority and even worse once he was in the majority. Again, I'm not saying that Dems were faultless. But there was plenty of bipartisan legislation (and judicial appointments) that died with him for political reasons, regardless of whether it would be good or bad for the country. So my problem is with his tactics. The means didn't even come close to justifying the ends. The statement wasn't toxic, but the methodology used to try and achieve the statement was toxic.

When there is an impeachment inquiry, I don't think executive branch employees should be allowed to defy the subpoena. Full stop. If a party tries to get too cutesy with impeachment, then it will backfire and they will get crushed in the next election. But the executive should not be able to hide under that circumstance. Lower levels of oversight become more complicated, but I generally favor forcing the executive to respond to legislative subpoenas. I didn't follow the Holder situation and I'm not going to bother looking it up, and even if I did, as a DOJ employee, I wouldn't feel comfortable commenting on a specific situation (as opposed to a general principle). Also as a general principle, I think Congress has abdicated significant parts of its spine over the last 20+ years. That's why we have rulemaking and executive orders gone amuck instead of legislation. That's why we have Presidents relying on 2-decade old authorizations for the use of force. Congress needs to regrow a spine institutionally.

(12-05-2019 11:04 PM)RiceLad15 Wrote:  

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

A person is a physical means through which a communication can be ascertained. A document is a physical means through which a communication can be ascertained. In fact, in human terms, the protection from Congressional subpoena can be argued to be stronger than that for documents.

From one of the OLC opinions on the matter:

Quote:To be sure, the President’s advisers could invoke executive privilege to decline to answer specific questions if they were required to testify. See, e.g., Rehnqust Memorandum at 8 & n.4. But the ability to assert executive privilege during live testimony in response to hostile questioning would not remove the threat to the confidentiality of presidential communications. An immediate presidential adviser could be asked, under the express or implied threat of contempt of Congress, a wide range of unanticipated and hostile questions about highly sensitive deliberations and communications. In the heat of the moment, without the opportunity for careful reflection, the adviser might have difficulty confining his remarks to those that do not reveal such sensitive information. Or the adviser could be reluctant to repeatedly invoke executive privilege, even though validly applicable, for fear of the congressional and media condemnation she or the President might endure.

These concerns are heightened because, in a hearing before a congressional committee, there is no judge or other neutral magistrate to whom a witness can turn for protection against questions seeking confidential and privileged information. The committee not only poses the questions to the witness, but also rules on any objections to its own questions according to procedures it establishes. The pressure of compelled live testimony about White House activities in a public congressional hearing would thus create an inherent and substantial risk of inadvertent or coerced disclosure of confidential information relating to presidential decisionmaking—thereby ultimately threatening the President’s ability to receive candid and carefully considered advice from his immediate advisers. To guard against these harms to the President’s ability to discharge his constitutional functions and to the separation of powers, immediate presidential advisers must have absolute immunity from congressional compulsion to testify about matters that occurred during the course of the adviser’s discharge of official duties.

By the way the author is a guy named Karl Thompson, Acting Assistant Attorney General, OLC under Obama. you have further issues with it, take it up with him how he is so wrong. I am sure he will quickly act with the urgency necessary to make sure you are satisfied with that argument. I know I will sleep easier knowing you are on it.

(12-06-2019 01:33 AM)mrbig Wrote:  he essentially shut down the Senate to any policy that he thought might be viewed as positive for Obama.

Glad to hear the House Democrats led by Pelosi are busy passing legislation to make Trump look good. Certainly nice of them.

[/sarcasm]

Quote: Also as a general principle, I think Congress has abdicated significant parts of its spine over the last 20+ years. That's why we have rulemaking and executive orders gone amuck instead of legislation. That's why we have Presidents relying on 2-decade old authorizations for the use of force. Congress needs to regrow a spine institutionally.

Yes, I agree.

speaking of Obama...

I wonder why the purchase was done through a trust? Tax avoidance maybe? To obscure the source of the money?

"Without much net worth to speak of when he entered office in January of 2009, Obama is said to be worth a cool $70 million."

(12-06-2019 01:33 AM)mrbig Wrote:  When there is an impeachment inquiry, I don't think executive branch employees should be allowed to defy the subpoena. Full stop.

I might agree with you if impeachment inquiries had the same level of protections of rule of law and basic fairness that a court-based proceeding might have.

But they dont.

Nor is there any pretense beyond lip service to having any at any time.

And, there is a very serious issue about co-equal branches that has to defended in that context as well.

For those reasons, I would find *Congressional* subpeonas problematic. At least in the grand jury scheme, there is a very small veneer of actual 'judiciousness' present in the subpoena context. In the Congressional realm of the practice there is none at all.

For those reasons I think I would respectfully disagree with you on that point of Full Stop.

Quote:Also as a general principle, I think Congress has abdicated significant parts of its spine over the last 20+ years. That's why we have rulemaking and executive orders gone amuck instead of legislation. That's why we have Presidents relying on 2-decade old authorizations for the use of force. Congress needs to regrow a spine institutionally.

No argument here. At least with Trump, the Democrats and progressives are back into the mold of a limited Executive power. I dont know how long that feeling will last once one of them 'ascends the throne.'

I seriously wish that there had been any iota of opposition to the Obama Administration expansion of executive power, and the proverbial rule by 'pen and a phone'. But, as I noted before, my guess is that 'wish for limiting the executive power' will last past the first day of a Democratic Administration the way Frosty the Snowman would last outside in El Alamein Egypt.

(12-06-2019 01:33 AM)mrbig Wrote:  When there is an impeachment inquiry, I don't think executive branch employees should be allowed to defy the subpoena. Full stop.

Why not? Based upon what interpretation of what law?

(12-06-2019 01:58 AM)tanqtonic Wrote:  

(12-06-2019 01:33 AM)mrbig Wrote:  Also as a general principle, I think Congress has abdicated significant parts of its spine over the last 20+ years. That's why we have rulemaking and executive orders gone amuck instead of legislation. That's why we have Presidents relying on 2-decade old authorizations for the use of force. Congress needs to regrow a spine institutionally.

No argument here. At least with Trump, the Democrats and progressives are back into the mold of a limited Executive power. I dont know how long that feeling will last once one of them 'ascends the throne.'
I seriously wish that there had been any iota of opposition to the Obama Administration expansion of executive power, and the proverbial rule by 'pen and a phone'. But, as I noted before, my guess is that 'wish for limiting the executive power' will last past the first day of a Democratic Administration the way Frosty the Snowman would last outside in El Alamein Egypt.

But it's too easy for congress to "fix" problems by passing statutes full of broad-based platitudes with no substance, and direct some administrative agency to fill in the blanks. That way they can go home and brag to their constituents about fixing a problem, and when one of those constituents brings up one of the many problems with the fix, they can respond, "Oh, we didn't do that, EPA (or OSHA or whomever) did that. Put some money in my campaign fund and I'll see if I can get you an exception."

What is needed is a revision to the Administrative Procedure Act. I would propose the following:
1) Any new rule-making cannot take effect until it is reviewed and approved by both houses of congress if either a) it has a projected dollar impact of more than $1 billion, or 2) 20% of either house requests it;
2) Every executive agency and all of its regulations are subject to sunset review every 10 years; and
3) This is the biggie for me, instead of adjudication before captive ALJs who report ultimately to the executive director of the agency, disputes with an agency would be tried in Article III administrative law courts established in each federal judicial district, with appeal through the district and circuit courts.

(12-06-2019 01:43 AM)tanqtonic Wrote:  

(12-05-2019 11:04 PM)RiceLad15 Wrote:  

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

A person is a physical means through which a communication can be ascertained. A document is a physical means through which a communication can be ascertained. In fact, in human terms, the protection from Congressional subpoena can be argued to be stronger than that for documents.

From one of the OLC opinions on the matter:

Quote:To be sure, the President’s advisers could invoke executive privilege to decline to answer specific questions if they were required to testify. See, e.g., Rehnqust Memorandum at 8 & n.4. But the ability to assert executive privilege during live testimony in response to hostile questioning would not remove the threat to the confidentiality of presidential communications. An immediate presidential adviser could be asked, under the express or implied threat of contempt of Congress, a wide range of unanticipated and hostile questions about highly sensitive deliberations and communications. In the heat of the moment, without the opportunity for careful reflection, the adviser might have difficulty confining his remarks to those that do not reveal such sensitive information. Or the adviser could be reluctant to repeatedly invoke executive privilege, even though validly applicable, for fear of the congressional and media condemnation she or the President might endure.

These concerns are heightened because, in a hearing before a congressional committee, there is no judge or other neutral magistrate to whom a witness can turn for protection against questions seeking confidential and privileged information. The committee not only poses the questions to the witness, but also rules on any objections to its own questions according to procedures it establishes. The pressure of compelled live testimony about White House activities in a public congressional hearing would thus create an inherent and substantial risk of inadvertent or coerced disclosure of confidential information relating to presidential decisionmaking—thereby ultimately threatening the President’s ability to receive candid and carefully considered advice from his immediate advisers. To guard against these harms to the President’s ability to discharge his constitutional functions and to the separation of powers, immediate presidential advisers must have absolute immunity from congressional compulsion to testify about matters that occurred during the course of the adviser’s discharge of official duties.

By the way the author is a guy named Karl Thompson, Acting Assistant Attorney General, OLC under Obama. you have further issues with it, take it up with him how he is so wrong. I am sure he will quickly act with the urgency necessary to make sure you are satisfied with that argument. I know I will sleep easier knowing you are on it.

Man, we're having a decent conversation and you just can't help yourself... But I'll ignore it and play nice.

I think that reasoning makes sense - basically compelling someone to "plead the fifth" could result in them buckling under pressure and depriving POTUS of their executive privilege.

Reading that opinion, the line above your quote reads:

Quote:The prospect of compelled interrogation by a potentially hostile congressional committee about confidential communications with the President or among the President’s immediate staff could chill presidential advisers from providing unpopular advice or from fully examining an issue with the President or others.

So one question is who falls into the orbit of "immediate staff" and, as referenced elsewhere, "immediate presidential advisers?"

I went through trying to suss that out, and it's not very clear, as it doesn’t name titles.

Quote:those trusted members of the President’s inner
circle “who customarily meet with the President on a regular or frequent basis,”
Rehnquist Memorandum at 7, and upon whom the President relies directly for
candid and sound advice—are in many ways an extension of the President himself

I would definitely not extend the privilege to Giuliani, as he is acting as the "personal attorney" to Trump, and not acting in an official manner. I've read enough now that it's clear that executive privilege only applies to executive specific roles, so I don't see how a personal attorney falls into that category. But you do have the other issue of attorney client privilege, which I'm less familiar with.

It also wouldn't apply to Gordon Sondland, who did comply with the subpoena.

I would Mulvaney in the protected category, as he is the Chief of Staff, a clear position within the WH that has an advisory role.

But what about the Cabinet members? Pompeo, Espor, Perry, and Vought are clearly advisers, but would they be considered "inner circle" members? They are not members of an office within the White House, but they do sit on the Cabinet as advisers, and they sit in the executive branch, but their roles or tied in carrying out work for both all branches of government.

It took me a while to find language specifically tackling it, and when I did, this is what I found (obviously not the be all end all, but an informed opinion):

Quote:Extension of the presidential communications privilege to the Attorney General’s delegatee, the Deputy Attorney General, and his staff, on down to the Pardon Attorney and his staff, with the attendant implication for expansion to other Cabinet officers and their staffs, would, as the court pointed out in [Espy], pose a significant risk of expanding to a large swatch of the executive branch a privilege that is bottomed on a recognition of the unique role of the President.

https://fas.org/sgp/crs/secrecy/R42670.pdf

Have you found better information informing how far the executive privilege reaches with respect to compelling someone to testify?

(12-06-2019 01:46 AM)OptimisticOwl Wrote:  

(12-06-2019 01:33 AM)mrbig Wrote:  he essentially shut down the Senate to any policy that he thought might be viewed as positive for Obama.

Glad to hear the Democrats are busy passing legislation to make Trump look good. Certainly nice of them.

I actually think quite a few of the House-passed bills that haven't made it to the floor of the senate would be political winners for Trump (not necessarily with his base, but with a lot of moderates and independents), including the DACA bill, some of the election protections in HR1, increased Russia sanctions, and more. Pass those in exchange for a wall and Dems probably go along and everyone gets some victories, probably Trump most of all.

(12-06-2019 01:58 AM)tanqtonic Wrote:  

(12-06-2019 01:33 AM)mrbig Wrote:  When there is an impeachment inquiry, I don't think executive branch employees should be allowed to defy the subpoena. Full stop.

I might agree with you if impeachment inquiries had the same level of protections of rule of law and basic fairness that a court-based proceeding might have.

But they dont.

Nor is there any pretense beyond lip service to having any at any time.

And, there is a very serious issue about co-equal branches that has to defended in that context as well.

For those reasons, I would find *Congressional* subpeonas problematic. At least in the grand jury scheme, there is a very small veneer of actual 'judiciousness' present in the subpoena context. In the Congressional realm of the practice there is none at all.

For those reasons I think I would respectfully disagree with you on that point of Full Stop.

I think Congress should pass a law laying out the rules for impeachment that is binding in the future, rather than relying on rules that can change with each new Congress. So my point was more about what I think should be included in that law and my personal opinion, not a legal evaluation of how the executive branch should respond to Congressional subpoenas today.

Incidentally, I think the House and Senate need to codify some of their internal rules. The fact that the rules can be changed so dramatically by each new Congress based on who is in power is ridiculous. Codifying a lot of the basic rules would help both sides avoid rampant hypocrisy.

(12-06-2019 08:25 AM)Owl 69/70/75 Wrote:  

(12-06-2019 01:33 AM)mrbig Wrote:  When there is an impeachment inquiry, I don't think executive branch employees should be allowed to defy the subpoena. Full stop.

Why not? Based upon what interpretation of what law?

I literally said earlier that I'm not educated in the law of this area and not comfortable giving my own legal opinions since I work for the DOJ. So it is just my personal opinion of how I believe things should work and not based on any interpretation of any law.

(12-06-2019 08:38 AM)Owl 69/70/75 Wrote:  What is needed is a revision to the Administrative Procedure Act. I would propose the following:
1) Any new rule-making cannot take effect until it is reviewed and approved by both houses of congress if either a) it has a projected dollar impact of more than $1 billion, or 2) 20% of either house requests it;
2) Every executive agency and all of its regulations are subject to sunset review every 10 years; and
3) This is the biggie for me, instead of adjudication before captive ALJs who report ultimately to the executive director of the agency, disputes with an agency would be tried in Article III administrative law courts established in each federal judicial district, with appeal through the district and circuit courts.

I don't like #2, just because I don't trust Congress to do their jobs and because I think your proposals for #1 and #3 ameliorate some of the concerns that #2 seeks to address. I haven't given a lot of thought to where you draw the line in #1, but I like the concept.

(12-06-2019 01:58 AM)tanqtonic Wrote:  I seriously wish that there had been any iota of opposition to the Obama Administration expansion of executive power, and the proverbial rule by 'pen and a phone'. But, as I noted before, my guess is that 'wish for limiting the executive power' will last past the first day of a Democratic Administration the way Frosty the Snowman would last outside in El Alamein Egypt.

I was often uncomfortable with the increased reliance on executive actions. It makes it tough when there are real problems and Congress can't or won't do anything. What I appreciated was that it was clear the Obama administration considered Constitutional limits, even if one disagrees with where they drew the line. There were some actions that progressives wanted them to take that they did not because they did not believe it was Constitutional. One of the reasons I wasn't a huge fan of Senator Harris's presidential campaign is because she was very up front that she wanted to do a lot with executive actions.

(12-06-2019 08:51 AM)RiceLad15 Wrote:  

(12-06-2019 01:43 AM)tanqtonic Wrote:  A person is a physical means through which a communication can be ascertained. A document is a physical means through which a communication can be ascertained. In fact, in human terms, the protection from Congressional subpoena can be argued to be stronger than that for documents.

From one of the OLC opinions on the matter:

Quote:To be sure, the President’s advisers could invoke executive privilege to decline to answer specific questions if they were required to testify. See, e.g., Rehnqust Memorandum at 8 & n.4. But the ability to assert executive privilege during live testimony in response to hostile questioning would not remove the threat to the confidentiality of presidential communications. An immediate presidential adviser could be asked, under the express or implied threat of contempt of Congress, a wide range of unanticipated and hostile questions about highly sensitive deliberations and communications. In the heat of the moment, without the opportunity for careful reflection, the adviser might have difficulty confining his remarks to those that do not reveal such sensitive information. Or the adviser could be reluctant to repeatedly invoke executive privilege, even though validly applicable, for fear of the congressional and media condemnation she or the President might endure.

These concerns are heightened because, in a hearing before a congressional committee, there is no judge or other neutral magistrate to whom a witness can turn for protection against questions seeking confidential and privileged information. The committee not only poses the questions to the witness, but also rules on any objections to its own questions according to procedures it establishes. The pressure of compelled live testimony about White House activities in a public congressional hearing would thus create an inherent and substantial risk of inadvertent or coerced disclosure of confidential information relating to presidential decisionmaking—thereby ultimately threatening the President’s ability to receive candid and carefully considered advice from his immediate advisers. To guard against these harms to the President’s ability to discharge his constitutional functions and to the separation of powers, immediate presidential advisers must have absolute immunity from congressional compulsion to testify about matters that occurred during the course of the adviser’s discharge of official duties.

By the way the author is a guy named Karl Thompson, Acting Assistant Attorney General, OLC under Obama. you have further issues with it, take it up with him how he is so wrong. I am sure he will quickly act with the urgency necessary to make sure you are satisfied with that argument. I know I will sleep easier knowing you are on it.

Man, we're having a decent conversation and you just can't help yourself... But I'll ignore it and play nice.

The issue lad, is that I am *not* trying to convince you of anything. I am just stating what the outlook is on the issue, and trying to relay to you that if one were representing the side on the issue, what the implications of *not* aggressively defending the bounds would be.

Frankly, I really dont care if you are 'convinced' or not.

Your comment came across as 'nice try, but I know better.' But the three singular facts that were not pointed out in the opinion snippet are:

a) to not aggressively defend the subpoena on persons leads to a counter argument that there is a waiver of some sort present as to the privilege re: the *immunity* that attaches as a result of the privilege in later cases;
b) there is no controlling case law -- the sum total of law on the subject kind of boils down to two trial court cases;
c) for subpoena purposes, especially in the context of the Executive and this unique privilege that exists around this solitary individual, producing documents stating communications and producing individuals for the purposes of stating communications could inherently weaken one's own case on the privilege itself, notwithstanding the attached immunity.

Believe me, not trying to convince you in the slightest. That is just the pragmatic situation that *not* defending the immunity would produce.

Frankly, whether you are 'sold' on these points isnt germane in the slightest. No skin off my back in the slightest.

But when the simple pragmatic effects are stated, and you respond with a 'not sold on that', Im just in a way telling I really dont care.

Quote:I think that reasoning makes sense - basically compelling someone to "plead the fifth" could result in them buckling under pressure and depriving POTUS of their executive privilege.

Reading that opinion, the line above your quote reads:

Quote:The prospect of compelled interrogation by a potentially hostile congressional committee about confidential communications with the President or among the President’s immediate staff could chill presidential advisers from providing unpopular advice or from fully examining an issue with the President or others.

So one question is who falls into the orbit of "immediate staff" and, as referenced elsewhere, "immediate presidential advisers?"

I went through trying to suss that out, and it's not very clear, as it doesn’t name titles.

Correct. The OLC is part of the Executive Branch. They would be idiots to limit themselves in a document such as this.

Quote:

Quote:those trusted members of the President’s inner
circle “who customarily meet with the President on a regular or frequent basis,”
Rehnquist Memorandum at 7, and upon whom the President relies directly for
candid and sound advice—are in many ways an extension of the President himself

I would definitely not extend the privilege to Giuliani, as he is acting as the "personal attorney" to Trump, and not acting in an official manner. I've read enough now that it's clear that executive privilege only applies to executive specific roles, so I don't see how a personal attorney falls into that category.

I wouldnt read the opinion as being limited to 'roles'. The broader interpretation reads 'advisers'. The actual text reads 'inner circle'. You are seemingly self-limiting that to 'advisers in official roles'.

Quote:It also wouldn't apply to Gordon Sondland, who did comply with the subpoena.

It actually does apply to Sondland. Sondland personally defied the exercise of the the immunity and the privilege claim.

Quote:I would Mulvaney in the protected category, as he is the Chief of Staff, a clear position within the WH that has an advisory role.

But what about the Cabinet members? Pompeo, Espor, Perry, and Vought are clearly advisers, but would they be considered "inner circle" members? They are not members of an office within the White House, but they do sit on the Cabinet as advisers, and they sit in the executive branch, but their roles or tied in carrying out work for both all branches of government.

It took me a while to find language specifically tackling it, and when I did, this is what I found (obviously not the be all end all, but an informed opinion):

Quote:Extension of the presidential communications privilege to the Attorney General’s delegatee, the Deputy Attorney General, and his staff, on down to the Pardon Attorney and his staff, with the attendant implication for expansion to other Cabinet officers and their staffs, would, as the court pointed out in [Espy], pose a significant risk of expanding to a large swatch of the executive branch a privilege that is bottomed on a recognition of the unique role of the President.

https://fas.org/sgp/crs/secrecy/R42670.pdf

Have you found better information informing how far the executive privilege reaches with respect to compelling someone to testify?

It is uncharted waters case-wise. I would hazard a guess that in todays complex world, any position that engenders rendering advice to the Executive would be claimed under both the immunity and the privilege. And the White House counsel should view it that way. It is their job to zealously represent their client -- the office of the Presidency and whomever occupies it at that point in time in the official capacity.

The privilege and the attendant immunity are based upon the preservation of people rendering frank advice. The 'rendering advice' appears to me to be the attribute in question. Seems to me to be the really only germane issue.

(12-06-2019 10:17 AM)mrbig Wrote:  

(12-06-2019 08:25 AM)Owl 69/70/75 Wrote:  

(12-06-2019 01:33 AM)mrbig Wrote:  When there is an impeachment inquiry, I don't think executive branch employees should be allowed to defy the subpoena. Full stop.

Why not? Based upon what interpretation of what law?

I literally said earlier that I'm not educated in the law of this area and not comfortable giving my own legal opinions since I work for the DOJ. So it is just my personal opinion of how I believe things should work and not based on any interpretation of any law.

So, this is basically simply an "Orange Man Bad" argument with no legal support? Did you support Holder's refusal to respond to subpoenas about Fast and Furious?

Quote:

(12-06-2019 08:38 AM)Owl 69/70/75 Wrote:  What is needed is a revision to the Administrative Procedure Act. I would propose the following:
1) Any new rule-making cannot take effect until it is reviewed and approved by both houses of congress if either a) it has a projected dollar impact of more than $1 billion, or 2) 20% of either house requests it;
2) Every executive agency and all of its regulations are subject to sunset review every 10 years; and
3) This is the biggie for me, instead of adjudication before captive ALJs who report ultimately to the executive director of the agency, disputes with an agency would be tried in Article III administrative law courts established in each federal judicial district, with appeal through the district and circuit courts.

I don't like #2, just because I don't trust Congress to do their jobs and because I think your proposals for #1 and #3 ameliorate some of the concerns that #2 seeks to address. I haven't given a lot of thought to where you draw the line in #1, but I like the concept.

I trust congress more than I trust unelected and unaccountable bureaucrats. Not much, but more.

Speaking of divisiveness and incivility,

death threats to Turley

more

The single minded passion on the Left to get Trump makes it dangerous to voice a contrary opinion.

(12-06-2019 10:25 AM)tanqtonic Wrote:  

(12-06-2019 08:51 AM)RiceLad15 Wrote:  

(12-06-2019 01:43 AM)tanqtonic Wrote:  A person is a physical means through which a communication can be ascertained. A document is a physical means through which a communication can be ascertained. In fact, in human terms, the protection from Congressional subpoena can be argued to be stronger than that for documents.

From one of the OLC opinions on the matter:

Quote:To be sure, the President’s advisers could invoke executive privilege to decline to answer specific questions if they were required to testify. See, e.g., Rehnqust Memorandum at 8 & n.4. But the ability to assert executive privilege during live testimony in response to hostile questioning would not remove the threat to the confidentiality of presidential communications. An immediate presidential adviser could be asked, under the express or implied threat of contempt of Congress, a wide range of unanticipated and hostile questions about highly sensitive deliberations and communications. In the heat of the moment, without the opportunity for careful reflection, the adviser might have difficulty confining his remarks to those that do not reveal such sensitive information. Or the adviser could be reluctant to repeatedly invoke executive privilege, even though validly applicable, for fear of the congressional and media condemnation she or the President might endure.

These concerns are heightened because, in a hearing before a congressional committee, there is no judge or other neutral magistrate to whom a witness can turn for protection against questions seeking confidential and privileged information. The committee not only poses the questions to the witness, but also rules on any objections to its own questions according to procedures it establishes. The pressure of compelled live testimony about White House activities in a public congressional hearing would thus create an inherent and substantial risk of inadvertent or coerced disclosure of confidential information relating to presidential decisionmaking—thereby ultimately threatening the President’s ability to receive candid and carefully considered advice from his immediate advisers. To guard against these harms to the President’s ability to discharge his constitutional functions and to the separation of powers, immediate presidential advisers must have absolute immunity from congressional compulsion to testify about matters that occurred during the course of the adviser’s discharge of official duties.

By the way the author is a guy named Karl Thompson, Acting Assistant Attorney General, OLC under Obama. you have further issues with it, take it up with him how he is so wrong. I am sure he will quickly act with the urgency necessary to make sure you are satisfied with that argument. I know I will sleep easier knowing you are on it.

Man, we're having a decent conversation and you just can't help yourself... But I'll ignore it and play nice.

The issue lad, is that I am *not* trying to convince you of anything. I am just stating what the outlook is on the issue, and trying to relay to you that if one were representing the side on the issue, what the implications of *not* aggressively defending the bounds would be.

Frankly, I really dont care if you are 'convinced' or not.

Your comment came across as 'nice try, but I know better.' But the three singular facts that were not pointed out in the opinion snippet are:

a) to not aggressively defend the subpoena on persons leads to a counter argument that there is a waiver of some sort present as to the privilege re: the *immunity* that attaches as a result of the privilege in later cases;
b) there is no controlling case law -- the sum total of law on the subject kind of boils down to two trial court cases;
c) for subpoena purposes, especially in the context of the Executive and this unique privilege that exists around this solitary individual, producing documents stating communications and producing individuals for the purposes of stating communications could inherently weaken one's own case on the privilege itself, notwithstanding the attached immunity.

Believe me, not trying to convince you in the slightest. That is just the pragmatic situation that *not* defending the immunity would produce.

Frankly, whether you are 'sold' on these points isnt germane in the slightest. No skin off my back in the slightest.

But when the simple pragmatic effects are stated, and you respond with a 'not sold on that', Im just in a way telling I really dont care.

Quote:I think that reasoning makes sense - basically compelling someone to "plead the fifth" could result in them buckling under pressure and depriving POTUS of their executive privilege.

Reading that opinion, the line above your quote reads:

Quote:The prospect of compelled interrogation by a potentially hostile congressional committee about confidential communications with the President or among the President’s immediate staff could chill presidential advisers from providing unpopular advice or from fully examining an issue with the President or others.

So one question is who falls into the orbit of "immediate staff" and, as referenced elsewhere, "immediate presidential advisers?"

I went through trying to suss that out, and it's not very clear, as it doesn’t name titles.

Correct. The OLC is part of the Executive Branch. They would be idiots to limit themselves in a document such as this.

Quote:

Quote:those trusted members of the President’s inner
circle “who customarily meet with the President on a regular or frequent basis,”
Rehnquist Memorandum at 7, and upon whom the President relies directly for
candid and sound advice—are in many ways an extension of the President himself

I would definitely not extend the privilege to Giuliani, as he is acting as the "personal attorney" to Trump, and not acting in an official manner. I've read enough now that it's clear that executive privilege only applies to executive specific roles, so I don't see how a personal attorney falls into that category.

I wouldnt read the opinion as being limited to 'roles'. The broader interpretation reads 'advisers'. The actual text reads 'inner circle'. You are seemingly self-limiting that to 'advisers in official roles'.

But you do have the other issue of attorney client privilege, which I'm less familiar with.

Quote:It also wouldn't apply to Gordon Sondland, who did comply with the subpoena.

It actually does apply to Sondland. Sondland personally defied the exercise of the the immunity and the privilege claim.

Quote:I would Mulvaney in the protected category, as he is the Chief of Staff, a clear position within the WH that has an advisory role.

But what about the Cabinet members? Pompeo, Espor, Perry, and Vought are clearly advisers, but would they be considered "inner circle" members? They are not members of an office within the White House, but they do sit on the Cabinet as advisers, and they sit in the executive branch, but their roles or tied in carrying out work for both all branches of government.

It took me a while to find language specifically tackling it, and when I did, this is what I found (obviously not the be all end all, but an informed opinion):

Quote:Extension of the presidential communications privilege to the Attorney General’s delegatee, the Deputy Attorney General, and his staff, on down to the Pardon Attorney and his staff, with the attendant implication for expansion to other Cabinet officers and their staffs, would, as the court pointed out in [Espy], pose a significant risk of expanding to a large swatch of the executive branch a privilege that is bottomed on a recognition of the unique role of the President.

https://fas.org/sgp/crs/secrecy/R42670.pdf

Have you found better information informing how far the executive privilege reaches with respect to compelling someone to testify?

It is uncharted waters case-wise. I would hazard a guess that in todays complex world, any position that engenders rendering advice to the Executive would be claimed under both the immunity and the privilege. And the White House counsel should view it that way. It is their job to zealously represent their client -- the office of the Presidency and whomever occupies it at that point in time in the official capacity.

The privilege and the attendant immunity are based upon the preservation of people rendering frank advice. The 'rendering advice' appears to me to be the attribute in question. Seems to me to be the really only germane issue.

The numerous articles and opinions I've read over the last few days lay out that, with respect to compelling witnesses to testify (not compelling them to testify about specific advice), their proximity to the POTUS does apply. If it didn't, one could argue that a Senator's aid who one time sat down with POTUS to advise them, could not be compelled to testify because of executive privilege.

They most certainly do not need to testify about that singular meeting, but what legal argument would there be for them to defy the subpoena? They can't rationally be described as part of the inner circle or an immediate adviser. So there must be a limit as to how far executive privilege extends with respect to ignoring a Congressional subpoena. You're right that the counsel could argue that they are covered because of the singular meeting, but do you believe that it would be upheld?

Also, everything I've read said that executive privilege only applies to advice regarding execution of the office of POTUS, not personal matters. Have you seen otherwise? So shouldn't there be a limit to advisers in official roles, as a way to make it clear what advice is personal vs in the execution of office?

And I know you don't care if I'm convinced - I'm just discussing this topic because it's of interest and you seem to know a lot and have a strong opinion about it.