Congress' Subpoena Power and Executive Privilege

[Raven]

How are these two concepts related if, in fact, they are related? If Rove gets a subpoena from Congress does the WH claim Executive Privilege to keep him from testifing or do they base their refusal on something else. As I recall, the Supreme Court decision in the Nixon case had to do with the release of tapes rather than compelling the testimony of a person.

Can anyone explain this?

[onenote]

1. this crs report from 1999 may be helpful

http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

[Kagemusha]

2. Congressional subpoena power is a right; exec privilege is a privilege

And privileges can be revoked if the need is great. The thing is, the legal doctrine of executive privilege is on a weak foundation if it is used in support of the defense of lying to the legislative branch. If the purpose of not testifying under oath is purely so that lies may be engaged in without consequences, the law will inevitably come down in favor of the legislative branch's oversight responsibility and legal power to investigate. After all, if that is not the case, there is no check and balance on the executive branch; it is literally a law unto itself. That's not the separation of powers concept.

[MonkeyFunk]

4. The Separation of Powers

cannot be revoked, regardless of need.

In US v Nixon, the supreme court ruled that the Executive could be compelled to provide evidence in a clear criminal investigation. But in that case, it wasn't Congress issuing the subpoenas, it was the Special Prosecutor.

Think about this - would we have been happy if the Republican Congress of the 90s could have subpoena'ed Clinton and his aides, for any reason, at any time?

Could the Congress subpoena Supreme Court justices to ask them about their decisions and how they arrived at them?

I'm not advocating one way or the other - I'm just pointing out that there IS a legitimate constitutional question here, and I have no idea how the court would rule. But I don't think it will get that far. The greatest likelihood is that there will be some compromise that leaves both sides pretty unhappy.

[originalpckelly]

6. While I completely agree on the legal matters, I totally disagree...

with your situation with Clinton.

People should be as open as possible. Using the fear of Republicans to justify secrecy is a bunch of fucking nonsense.

[MonkeyFunk]

7. I'm not sure I understand

are you saying that all executive branch members SHOULD be subject to the Congress' whims?

I guarantee you that Clinton himself would've been on capital hill every day, under oath, for two years if that were the case.

[originalpckelly]

8. What's so bad about a question?

If the Congress had done that, then they'd have paid a political price as a result, which in fact the Republicans did in '98. If they had done that after those elections, they would have lost the Congress.

The answer to irresponsibility is responsibility, not the transference of responsibility to a small group of people in the executive branch who are self-interested. The Congress is held accountable every two years.

If a Congress overreaches with subpoenas, it won't be re-elected. If a President overreaches with executive privilege, no one knows what the President is hiding.

When people know information, then they can make a decision themselves, and so the responsibility of deciding what should have been secret is taken from the President's small group to the entire nation.

[MonkeyFunk]

17. The problem

arises that an obstructionist congress could abuse such power.

Also, the President DOES have a right - and a need - to conduct his or her affairs without constant congressional oversight. Similarly, Congress has a right - and a need - to conduct their affairs without constant Executive oversight. No branch is subservient to the other.

[Raven]

9. See Onenote's post above

there is a great cite to the Congressional Research Service's Report for Congress on Executive Privilege. I just began reading it and it has all the past history and cases.

I guess my basic question is: when Congress issues a subpoena for a person rather than documents, can Executive Privilege be invoked? Especially if the information sought does not pertain to that person's conversations with or advice to the President.

[Kagemusha]

10. Look, I didn't force Clinton to claim exec privilege (and LOSE on it).

Seems to me every time Clinton tried to make a claim that Congress wasn't entitled to the information at all, that is, that the information wouldn't be provided through testimony, or NOT through testimony, the US Supreme Court ruled that Congress had a right to compel the testimony. 99%+ of the cases where executive privilege could lead to a clash, the Executive Branch has the information provided through alternate means. This maintains what amounts to a legal fiction.

The above doesn't apply to the President himself. His aides, however, are simply other US citizens. Congress can compel citizens to testify for the presumably legitimate needs of the People.

But I will be blunt. If you or anyone else starts asking me, are you fine with a Republican Congress subpoenaing White House personnel working for a Democratic President to testify, my answer will be, HELL YES. The truth shall set you free. The danger of congressionally compelled testimony is to liars, cheats, and frauds.

[MonkeyFunk]

16. Do you have a list of

Supreme Court decisions ruling against Clinton in Executive Privilege cases?

[Kagemusha]

19. God no. I'm going by memory. I apologize, I'm not saying I'm a lawyer.

I'm not giving you legal advice or representing myself as someone you should take legal advice from. I'm commenting on the basic issue, that executive privilege is not absolute, or it wouldn't be called a privilege, it'd be called royal perogative, as would properly be the case.

[Bandit]

12. the law will inevitably come down in favor of the legislative branch's oversight

What Law? The Scalia Extreme Court will never side with Congress over Bush*.. Never....

[Kagemusha]

13. The law that ruled against Clinton 9-0.

The law that's bigger and badder than Bush will ever be.

[Bandit]

14. Well I for one will not hold my breath

I watched the "Law" at work during the 2000 election....

[MonkeyFunk]

15. That decision was different...

Jones vs. Clinton was about whether a sitting President could be sued in civil court for an offense committed before taking office. The Clinton response was that such a suit should have to wait 'til the President left office, owing to the unique nature and responsibilities of the office.

Clinton didn't make an executive privilege claim.

[Kagemusha]

18. Not in that particular case

there certainly were fights in other instances, which he all lost...

[MonkeyFunk]

3. It's a very interesting

separation of powers issue. How much control can the Congress have over the operations of the Executive? Or... how free is the Executive to conduct his business free of the oversight of the congress?

It's a very murky issue, largely because there are very very few legal precedents. Almost always, the Congress and the executive reach a compromise - neither side WANTS a firm precedent on the issue, because each side is afraid of losing whatever power they currently have.

Similarly, this is the reason why Congress usually exempts itself from the laws it passes. It's not because they feel they're above the law, but because it's the executive branch that enforces the law, and the concept of Separation of Powers, they feel, should prohibit the executive from using its police powers against the Congress.

BTW, if the partie were reversed, I believe both sides would respond exactly the same way. A Democratic president would claim Executive Privilege, and a Republican Congress would bemoan it.

[originalpckelly]

5. Answer: Neither one is in the US Constitution.

That's why both the Congress and the President want to avoid a battle in the courts.

The SCOTUS might even call this a political battle, and say it is non-justiciable for that reason.

[Kagemusha]

11. You're saying Congress has no constitutional oversight power?

That Congress has no right to subpoena or to establish laws for lesser officials as to their appointment, the laws and regulations they must abide by, and their impeachment and removal?

News to me. But I'm not Obama - I'm not a constitutional law expert.