4

Assistant Attorney General Karl Thompson was quoted saying in this article that they would

Adhere to the executive branch's longstanding view that the president's immediate advisers have absolute immunity.from congressional compulsion to testify.

Meaning that David Simas would not appear before Congress as a result of a Congressional subpoena.

What exactly is the legal basis for this claim? All I've been able to find is vague assertions of executive privilege.

  • I would not that even in the article that it explains that the adviser does not have immunity from the subpoena just that they can not be compelled to discuss privileged information. – SoylentGray Jul 16 '14 at 19:59
  • Based on combining @Chad's comment and Phil's answer: The adviser gets subpoenaed, he shows up and refuses to discuss anything, gets sued for contempt of congress, and then the courts get involved. – Bobson Jul 16 '14 at 20:40
  • @Bobson - Actually refusing to testify after showing up should be fine. refusing to show up is the problem. Its kind of like filing tax returns. you can get away with not paying your taxes(for a time anyway) as long as you file an accurate return. But if you dont file a return then they bring fire on brimstone(figuratively) on your ass. – SoylentGray Jul 17 '14 at 2:45
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This is a good resource on the subject of Executive Privilege

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

Highlights from the recent court decisions around subject:

With regard to the executive’s claim, the court noted that there was no absolute claim of executive privilege in response to congressional requests even in the area of national security...Congress’ investigatory power is not, itself, absolute...According to the court, judicial intervention in executive privilege disputes between the political branches is improper unless the branches have made a good faith effort at compromise without result. The court held that there is a constitutional duty for the executive and Congress to attempt to accommodate each other’s needs ( United States v. AT&T )

The court dismissed the case, without reaching the executive privilege claim, on the ground that judicial intervention in a dispute “concerning the respective powers of the Legislative and Executive Branches ... should be delayed until all possibilities for settlement have been exhausted...Judicial resolution of this constitutional claim ... will never become necessary unless Administrator Gorsuch [Burford] becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress. ( United States v. House of Representatives)

**The Miers case where Bates agreed that she was compelled to submit to the Congressional subpoena but could exercise executive privilege for specific questions was very limited in its scope.

For it to be applicable here, the justification for the subpoena (legitimacy of the investigation) , as contested by the Administration ( Eggleston said the Oversight Committee's interest in the poltiical office "lacks any predicate of wrongdoing or misconduct.), would need to be established by a court. Bates trounced the idea of absolute immunity for advisers but did acknowledge qualified immunity as a legitimate potential claim.

senior presidential advisors are entitled to qualified immunity against damages actions. The qualified immunity inquiry,however, does not fit comfortably in the present context...Similarly, it might apply where Congress is not utilizing its investigation authority for a legitimate purpose but rather aims simply to harass or embarrass a subpoenaed witness. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0409-49

Basically, its too early to tell how this situation is going to play out.

Here's the letter from Eggleston to Issa. http://online.wsj.com/public/resources/documents/EgglestonLetter0716.pdf

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