, 8 tweets, 2 min read Read on Twitter
An annoyingly technical thing you need to know to understand what’s going on these days is the difference between “executive privilege” and “testimonial immunity.” I will try to explain very briefly and hopefully won’t mangle it too badly.
“Executive privilege” is a protection from certain compulsory testimony or document production that reveals the internal functioning of the govt (similar to attorney-client privilege). It’s available throughout the executive branch but only applies when the president invokes it.
“Testimonial immunity” is a doctrine created by DOJ lawyers that holds the President and, most importantly, the President’s entire White House staff (current and former) are immune from being compelled to appear before congress in relation to their jobs.
Executive privilege has received some recognition from the courts, but the Supreme Court held that it’s not absolute—it has to give way before certain compelling interests (which is how we got the Watergate tapes). Testimonial immunity, afaik, has never been tested in court.
Don McGahn relied on this untested doctrine of testimonial immunity (and a presidential directive not to appear) to miss his subpoenaed appearance. Trump has never yet invoked executive privilege wrt McGahn’s testimony (even though it is mentioned in the directive letter).
Hope Hicks, if she ducks her subpoena, would also likely rely on testimonial immunity. Here’s the OLC’s memo on the doctrine.
As @joshgerstein rightly points out, one district court considered and rejected the doctrine of testimonial immunity in connection w/ the US Attorneys scandal in the GWB admin. That decision was appealed, but the parties settled before an appellate ruling. courtlistener.com/opinion/181099…
“The Executive's current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” Judge Bates wrote in that decision—pointing up how much of an OLC invention McGahn’s (and Hicks’?) position is.
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