More on Executive Privilege

Not everyone sees the developing executive privilege showdown the way I do. (Shocking, I know). Eugene Volokh argues that separation of powers dictates that Congress cannot, in fact, mandate a prosecution, as it removes the executive branch’s traditional prosecutorial discretion. He also argues that a Justice Department (executive branch) official cannot be forced to prosecute when he believes the defendant to have committed no crime. It’s a pretty solid legal argument, but he doesn’t deny that Congress has other options.

John Yoo, on the other hand, unsurprisingly makes a shriller version of the same argument in the WSJ. Unlike Volokh, he can’t resist the urge to throw in partisan potshots at Bill Clinton’s privilege claims, the current Congress, and Democrats in general.

He also goes a step further than Volokh, arguing not only that the US Attorney doesn’t have to prosecute the contempt citation, but rather that Congress lacks any legal authority whatsoever to prosecute here, because of his belief that the privilege claim is legally sound. Of course, he misses a critical distinction in so doing. Traditionally, when Congress subpoenas someone, they express willingness to testify and attempt to do so, whether the Administration wants them to or not, and then it is up to the Administration to seek an injunction in court for its privilege claims. Here, the Administration is telling people not to testify, and they are refusing to testify. This leaves far less space for a legal challenge to the privilege claim and makes everything a whole lot fuzzier.

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