Washington — (CNN) Michael Flynn, the ex-national security adviser, stepped down on Monday at the request of President Donald Trump, who had reportedly lost faith in him for misleading Vice President Pence about his communications with Russia’s ambassador. The White House apparently is satisfied with this resolution. What if Congress isn’t satisfied and has some questions for Flynn too?
Most people are familiar with the legislature’s role as a lawmaker. But Congress also has broad investigatory authority, an implied power flowing from the Constitution itself.
The Supreme Court long ago validated congressional investigations, holding in the 1920s that congressional committees may issue subpoenas, compel witnesses to testify — and hold them in contempt for failure to comply. In modern times, Congress can compel sworn testimony and records from just about anyone: gangsters, professional baseball players; you name them, Congress can investigate them. Appearance is not optional, either. The Supreme Court has made it crystal clear that a person is legally required to comply with a congressional subpoena.
Meanwhile, over in the executive branch, there exists a formidable privilege that protects the confidentiality of a president’s communications in the performance of his responsibilities The Watergate cases from the 1970s established this presidential confidentiality privilege as an essential part of the separation of powers doctrine.
The idea behind the privilege is that the full and frank exchange between the president and his advisers would be discouraged if those communications were left unprotected; in other words, the public supposedly benefits from records and communications that the president keeps secret … from the public.
So then — could a congressional committee investigate and subpoena Michael Flynn?
As with many things in the law it’s hard to say. If Flynn were subpoenaed, the Trump administration would likely oppose and assert that executive privilege acts as an absolute immunity preventing Flynn from being compelled to give testimony before Congress. Congress may not accept that assertion of privilege. Then, the case could end up in federal court.
And in these cases between the executive and legislative branches, the courts make their position known: Leave us out of it.
The judiciary has historically insisted that the political branches settle disputes like this rather than drag the courts into the fray. The courts impose a constitutional duty for the executive and Congress to attempt to work out these disputes before filing suit — and they will kick the other branches right out of court if they haven’t tried to resolve their issues first.
Suppose then, just as a hypothetical, Flynn gets subpoenaed, and one of the branches is particularly stubborn and unwilling to compromise on the scope of executive privilege. Then, the courts could be imposed upon to decide a rarely-litigated issue, fraught with constitutional peril: Who wins when congressional power comes head-to-head with executive privilege? And how far does this executive privilege extend down the chain of command?
On the one hand, communications made by presidential advisers in the course of preparing advice for the president come under the presidential communications privilege, even when these communications are not made directly to the president. President Trump, like his predecessors, depends on his advisers, and those advisers need freedom to obtain information from knowledgeable sources. The communications they author must be privileged, as well as the communications solicited and received by them.
Also, absolute immunity may be justified for presidential aides entrusted with discretionary authority in sensitive areas like national security or foreign policy. But this function must be so sensitive as to require such a total shield from liability. But does the privilege extend beyond close aides, out to the agencies?
Courts recognize that it would frustrate the goals of an open government to extend this executive privilege to every person working in the executive branch — if there’s an argument that every executive employee “helps” the chief executive, then the entire branch becomes “privileged.” Consequently, courts have specifically limited the privilege to White House staff with “operational proximity” to presidential decision-making.
So can agency heads categorically claim this privilege? Not as a rule, according to the DC Court of Appeals. Not every person who plays a role in the development of presidential advice can qualify for the privilege. That court specifically held that the privilege should not automatically extend to staff outside the White House in executive branch agencies.
Congress would probably be interested in Flynn’s — or any member of the Trump team’s — communications with Russian ambassadors or intelligence agencies, even if they occurred before Trump was sworn in. The Trump administration might then be in the uncomfortable position of arguing that Flynn’s communications served the president, so they are privileged. But … that could be tantamount to admitting presidential involvement in apparently improper discussions.
The administration might argue that Flynn’s communications involved sensitive foreign policy or national defense functions, but that might be tough too, given that Flynn was not even technically “in” the administration yet.
Here’s the thing: because so few courts have decided cases on the executive privilege, the scope has largely been defined by each administration. Some presidents have sought to expand the privilege. But recent presidents have recognized some self-imposed limits on this privilege, stating they would not interfere with congressional investigations of potential executive branch fraud or corruption.
It’s hard to imagine the current president wanting to saddle himself with such self-imposed restraints. It’s also hard to imagine the executive branch resolving a privilege issue with Congress without having to resort to the courts. Despite their established preference to stay out of these cases, federal judges might soon see these parties in court.
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