AILSA CHANG, HOST:
In Washington, it is a daily guessing game on whether or not key witnesses will testify in the House's impeachment inquiry. That's because of the push and pull between the Trump administration telling aides not to speak and Congress issuing them subpoenas, saying they have to appear. Just this afternoon, the White House indicated it will not permit acting Chief of Staff Mick Mulvaney to testify. But if it comes to it, could the president invoke what's called executive privilege to stop high-level witnesses from testifying?
Well, to help us answer that question, I'm joined now by Jonathan Shaub. He served in the U.S. Department of Justice as recently as 2017.
JONATHAN SHAUB: Thank you.
CHANG: OK. Let's just have you start out by briefly defining for us - what is executive privilege?
SHAUB: Executive privilege is a - it's a constitutional doctrine that says the president can withhold sensitive information from Congress or from the courts when it's necessary to protect the public interest.
CHANG: OK. So what might President Trump's argument be if he were to use executive privilege to not cooperate in this impeachment inquiry?
SHAUB: Generally, the executive branch view is that there are certain kinds of information, such as the conversations of the president or national security information or, here, there's some diplomatic negotiations. And the view is that these are confidential and shouldn't be disclosed unless absolutely necessary. And so I think the argument would be this information is very sensitive, and Congress doesn't really need it because, you know, we've released other information. And so the president is going to withhold it and assert executive privilege.
CHANG: And so far, President Trump has not yet explicitly asserted executive privilege during these impeachment proceedings. Correct?
SHAUB: Correct, right.
CHANG: OK. But just to be clear, as a matter of law, like, no communication involving the White House enjoys absolute immunity. Right? There's no blanket immunity out there.
SHAUB: Right, not for communications. The executive privilege is a qualified privilege. So the Supreme Court, in the Nixon case, with the Watergate tapes, said there is a presumption that the tapes are privileged and the conversations of the president are privileged, but if there is a need for it, then that can overcome that presumption. And in that case, it found that the grand jury needed the tapes in order to sort of assess what had happened.
CHANG: If President Trump were not to use executive privilege, are there any other legal claims of immunity out there that President Trump could theoretically rely on to, say, stop people in his administration from testifying?
SHAUB: Yes, and he has. He's asserted what we think of as testimonial immunity for close presidential aides.
CHANG: What is that?
SHAUB: The idea is Congress and the president are sort of co-equal branches. And Congress, in the executive branch's view, at least, doesn't have the authority to subpoena the president and force him to come testify. And his close aides are sort of alter egos of the president. Since about 1970 or so, the executive branch has really developed this idea that close presidential advisers can't be compelled to testify before Congress. They're immune from those subpoenas that are issued.
And it's broader than privilege because it's not qualified.
CHANG: Meaning there's no limits to it.
SHAUB: Right. They just don't have to show up, and they don't have to provide the information, the testimony that's been demanded or subpoenaed from Congress.
CHANG: So what is the best check on Congress if lawmakers were to overreach in their oversight role?
SHAUB: Checks on Congress traditionally have been this compromise and this accommodation process, where the executive branch says, look. These are really sensitive things; we'll try to take that into account and get just the information we need and respect those interests. I think that compromise and the sort normative approach has broken down. And at this point, there's not a real way to resolve it until you have a court decision that says, this is what the Constitution means and this is where the authority is - because the executive branch has a number of doctrines, like executive privilege and immunity to refuse to comply if Congress is not going to respect those confidentiality interests.
Now, whether those apply in impeachment is sort of an unsettled question. And going forward, I think we're likely to see some challenges on that basis.
CHANG: Jonathan Shaub is also currently the Tennessee assistant solicitor general.
Thank you very much for joining us.
SHAUB: Thanks for having me.
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.