Just 50 days out of his inauguration, and the Trump administration continues to grapple with scandal and explanations of its ties to Russia. It was reported that former acting attorney general Sally Yates was recently blocked by the White House from testifying in the House investigation of the relationship between Russia and the Trump campaign. Yates was the attorney general who indicated she would decline enforcing the travel ban on seven predominantly Muslim countries.
Apparently, the Justice Department notified Yates that any potential testimony of hers would be disallowed in a congressional hearing because it would be covered by the presidential communications privilege. The argument presented by the Justice Department is that her communications would be “client confidences,” which Yates could not disclose without written consent from the client. Of course, Yates has challenged this interpretation of the privilege, arguing that she should not have to refuse to provide non-confidential information, particularly in light of the fact that many senior administration officials have described similar events publically, thus waiving the privilege. Coincidentally, the lead investigator, House Intelligence Committee Chairman Rep. David Nunes cancelled the hearing the same day the privilege was asserted, to the chagrin and criticism of Democrats alleging that Nunes is too cozy with the administration to carry out an objective investigation.
The question remains – what is the presidential communications privilege, and is this objection by the Justice Department viable? This privilege is often referred to as the executive privilege, and it is claimed by the President and other members within the executive branch. It can be used to resist subpoenas, testimony, and other interventions by the judicial and legislative branches attempting to seek information. The Supreme Court has acknowledged that there is a qualified privilege in the executive branch in United States v. Nixon. The Court held that once this privilege is invoked, then a presumption of the privilege existence is established. The Prosecutor – or in this case, the House Committee – must make a showing that the material in question is essential to the justice of the case. Usually, the Court will grant leeway when the material could impair certain national security concerns.
One of the most notorious uses of the executive privilege was during the McCarthy era, when Eisenhower forbade employees from testifying about conversations and meetings between staffers, without exception. The privilege was asserted to object to the McCarthy subpoenas about telephone calls between employees of the Department of Defense. President Nixon, of course, also invoked the privilege when the Watergate prosecutor requested Nixon to produce the recordings of conversations he had while in the White House. It has since been used under the Clinton, Bush II and Obama administrations. However, generally speaking, the Court is not sympathetic to the use of the executive privilege, particularly when the need for the public to know outweighs the need of the executive to have a generalized privilege to protect basic confidentiality. The prediction is, then, that if Yates is unable to testify, the case may proceed through the judiciary for a ruling on the applicability of the privilege. If it makes its way to the Supreme Court, and Gorsuch remains unconfirmed, there is a likelihood that the court will be split on this issue, and thus, remain at a standstill.