|Quoting AirCop (Reply 3):|
I'm not a lawyer, but can the executive branch (i.e. President) order her not to testify, since this does not appear to involve any classified information. Perhaps Halls120 or someone else with knowledge of can enlighten us.
I'm not an expert on executive privilege by any means.
Legally speaking, we are on very murky ground when it comes to a Congressional attempt to overcome a claim by the President to invoke executive privilege.
The most instructive case we have is of course US v. Nixon. The problem with trying to draw parallels between Nixon and this case is that with Nixon, we had a Special Prosecutor appointed by the Attorney General to investigate allegation of criminal conduct in the White House.
The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260
I'm not sure whether a Congressional subpoena will be afforded the same weight as a Special Prosecutor appointed to investigate a potential federal crime. Especially since we don't have a similar factual situation in the instant case.
If it were a criminal investigation, I believe the Bush claim would fail.
Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211 . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of [418 U.S. 683, 685] Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution.
However, since what is currently being fought over are discussions about the possible involvement of the White House in the firing of the 8 US Attorneys, not a federal crime, I suspect that if this comes to a head in the Courts, based on what we know now, Congress would lose this fight.
Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian.
Just my 2 cents. All quotes from the Supreme Court decision in U.S v. Nixon.
"Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself." Mark Twain, a Biography