Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
The White House has been thuggishly waving around what it calls “executive privilege” like the sword of Damocles over the heads of testifying witnesses before Congress, such as the recently resigned Fiona Hill.
“Executive privilege” is a real thing, but it’s a far tinier thing than this White House imagines, and it’s not a sword at all, it’s a shield. It provides a president a legal justification to not comply with certain subpoena requests.
But it’s not unqualified. A court can decide that your privilege claim can be overcome if there’s a significant public interest at stake.
And again, it’s not a sword. A witness who discloses information that would be otherwise legitimately qualify as executive privileged suffers no risk of penalty. I’m going to say that again because I believe the White House has hypnotized the media into thinking there’s an attendant penalty of risk for these witnesses:
THERE IS NO PENALTY FOR A WITNESS WHO DISCLOSED EXECUTIVE PRIVILEGED INFORMATION. NONE.
Accordingly, in the letter below sent by the White House to Fiona Hill’s counsel, wherein it repeatedly suggests that Hill is under an obligation to not reveal information subject to executive privilege, it’s just bluffing and bullshit and bluster.
To the extent Fiona Hill or anyone else testifying this week and the next agrees to honor an executive privilege claim by the President, they might do so because they deem it good for their careers in the long run, but the President’s claim of executive privilege is not binding on them.
There was evidently some back and forth between Hill’s lawyers and the White House, which the letter references, and those discussions are interesting because they’re a preview for many other arguments like in in the coming weeks and months, as the White House tries to claim everything is privileged.
Very notably, the letter contends that there is still “no valid impeachment inquiry” and thus certain other assumptions the parties might abide by haven’t yet kicked in. I’ve explained why that’s nonsense too — the White House doesn’t get to define the House’s impeachment procedures.
