DOJ places new legal barrier between Democrats and Trump impeachment witnesses

[demmiblue]

Source: The Hill

The Justice Department opened a new front in the legal battle between congressional impeachment investigators and the White House on Tuesday by announcing that Congress must allow government attorneys to accompany executive branch witnesses who testify about President Donald Trump's relations with Ukraine.

In a newly-released memo, the Justice Department’s Office of Legal Counsel said “the assistance of agency counsel” is needed because testimony has the potential to disclose information “protected by executive privilege.”

The House Intelligence Committee, which has taken the lead on the impeachment inquiry, has heard from a number of witnesses whose personal lawyers have been allowed to attend depositions. But the Justice Department argued in its memo that the exclusion of government lawyers deprives Trump of his constitutional power to screen privileged information from lawmakers.

The department’s new legal posture is the latest development in the fight between Congress and the White House over access to information that House Democrats say is necessary to assess the strength of an impeachment case against President Trump.

Read more: https://thehill.com/homenews/administration/469012-doj-places-new-legal-barrier-between-dems-and-trump-impeachment

[wryter2000]

1. ?

If the government attorney says "executive privilege," can the person answer, anyway?

[Mike 03]

4. Great question!

What if the lawyers for the White House and witness disagree? Who prevails?

[wryter2000]

6. I would think

The person would rely on their own attorney, but I really don't know.

[Mike 03]

2. Trump's "constitutional power to screen privileged information from lawmakers"

Is there any such power? I bet not, especially under circumstances of an Impeachment Inquiry.

[mopinko]

10. in impeachment, absolutely not. the rules are what nancy sez they are.

[lagomorph777]

26. SCOTUS already ruled on that during Nixon. No privilege to cover up crimes.

Sorry President Turd. Fuck off.

[underpants]

3. Does this override the rules set down by the House last week?

I understood that the rules have a provision saying that any obstruction would cause the defense (Trump) to loose some representation rights.

[bluestarone]

7. THIS!

[sakabatou]

5. The DOJ seems to be interfering with an investigation

and/or obstructing justice.

[Juneboarder]

8. Totally agree!

This is definitely an obstruction of justice and I'm not sure how this can be allowed and/or enforced.

[cstanleytech]

17. In the long run it can't be and hopefully in the long run those responsible like Barr

will be held accountable in a court of law.

[lagomorph777]

27. Barr is setting himself up for impeachment.

[bucolic_frolic]

9. Trump & Barr & DOJ are inventing powers as time moves along

Show me these clauses in the U.S. Constitution

[Brainfodder]

11. LOL @ trying to get the whistleblower details via this BS?

Avoiding tax returns all the while too?

[tableturner]

12. This will definitely be ignored. The DOJ/executive branch has no power Re: an impeachment process.

[onenote]

19. Not necessarily

The Supreme Court has not found that the assertion of executive privilege must always give way in the context of an impeachment proceeding.

The leading case on executive privilege, United States v. Nixon, had a narrow holding. While the Court rejected the argument that the president is entitled to an "absolute" privilege, the Court found that presidential communications are "presumptively privileged" because the privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution.

In deciding whether or not the presumption of privilege can and should be overridden in a particular case, the Court limited itself to the assertion of executive privilege in the context of a criminal case. Moreover, the Court distinguished between "generalized" assertions of privilege and assertions of executive privilege based on a claimed need to protect military, diplomatic, or sensitive national security secrets:

"We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."

In US v. Nixon, the Court ultimately concluded that the privilege must give way because, in the context of a criminal case, Nixon had only made a generalized assertion of a need for confidentiality and had not tied that assertion to matters involving military, diplomatic or national security.

The point of all of this is that the leading decisions on executive privilege leave room for Trump to claim that in the particular context in which it is being asserted, the presumption in favor of the privilege should hold. I think that argument should be rejected in this instance, but the outcome is not necessarily pre-ordained.

[tableturner]

22. They don't have to let a DOJ attorney accompany witnesses & force witnesses to listen to them...

....at least until required to do so by the courts.

I was not referring to executive privilege per se. The DOJ may want their attorney to accompany witnesses, but the committee would not be required to actually let that person be a part of the proceedings, or even to sit next to a witness, nor would witnesses be required to listen to a DOJ official, until the courts were to order them to do so. Remember, some officials are ALREADY ignoring DOJ and executive branch mandates.

So if an executive branch witness were to arrive to testify, and a DOJ attorney would want to sit with the witness and give obstructionist advice, the committee could ignore that person, and not let that person be seated next to the witness. If the committee were to vote no on that request, the DOJ attorney certainly could not and would not physically force his or her way into sitting next to the witness.

The DOJ could file suit and try for an injunction, but the committee would at least get a witness or two to testify before any court actions could take place. My point was that the committee would in fact ignore this mandate until ordered to do so by a judge. Eventually, the committee may be ordered to abide by the DOJ mandate (but I agree with you that the DOJ would ultimately lose). However, until that were to happen, the committee would not accede to the DOJ demands just because the DOJ might want them to do so. They are not going to say "Okay, the DOJ wants that, so we will just lay down and abide by those proclamations just because King Trump and Prince Barr want us to do so."

[Lock him up.]

13. And dis-barr barr, and throw him in jail too.

Since when is the USAG the personal protector of the POTUS?

Where is it in the Constitution?

[onenote]

20. The attorney general and the DOJ have historically been involved in reviewing and supporting

assertions of executive privilege. Bill Clinton asserted executive privilege over a dozen times and the Office of Legal Counsel and Janet Reno on more than one occasion reviewed and made statements supporting the assertion of executive privilege.

[Corgigal]

14. Somebody is trying to please

their boss. Luck for him, his boss is stupid and doesn’t read.

[MyOwnPeace]

15. Nixon did his.......

shit in the Oval Office with Haldmann and Erlichmann (sometimes with AG Mitchell) in private - out of eyesight.
IQ45 damned near calls a news conference (yeah, like that's ever gonna' happen again) and throws more "I could shoot someone on 5th Avenue" shit in everyone's faces.

I'm sure Madam Speaker and Chairman Schiff are gonna' have some "interesting" responses to this latest round of obstruction!

[patphil]

16. I would assume the witness would also have their own lawyer present.

I can't say who they would listen to, but the House sets the rules for the impeachment inquiry so it's anybody's guess as to whether the witness will pay any attention to the White House attorney or not.
My guess if they are going to show up and testify, they have already decided not to listen to the White House attorney.

[Grins]

18. Republican lawyers making s**t up.

"Executive privilege" has always been a negotiation.
"Executive privilege" did not exist as a point of law until Republican lawyers in Nixon's Justice Dept. made it up.
To defend a Republican crook.
Nixon's Republican lawyers asserted executive privilege to keep secret the Oval Office tapes.
The Supreme Court killed that saying the "fundamental demands of due process of law in the fair administration of criminal justice".
The Supreme Court said executive privilege - cannot be used to cover up wrongdoing.
That view was endorsed by current U.S. Attorney General William Barr during his Senate confirmation hearing.
Barr: "If it turns out that any report contains material information that is privileged or confidential, I would not tolerate an effort to withhold such information for any improper purpose, such as to cover up wrongdoing."
When Clinton asserted executive privilege re: Monica Lewinsky - he lost in Court.
When Obama asserted the privilege re: "Fast and Furious" - he lost in Court.
And here we are, another Republican lawyer with "the most transparent administration ever", invoking a "privilege".
To cover for another Republican crook.

[onenote]

21. Executive privilege existed and was recognized by the courts long before Nixon

To quote from Nixon v Sirica (1973): "We of course acknowledge the longstanding judicial recognition of Executive privilege."

What Nixon attempted and failed to do, and what Trump and company are trying and should likewise fail to do, is claim an "absolute" executive privilege.

[Bayard]

23. They see how the courts have been ruling lately

Against tRump. So they're trying to come up with a new form of obstruction.

[crickets]

24. Barr knows he's going down with them. This is the last gasp. nt

[malthaussen]

25. There is no basis for this in the Constitution...

... and impeachment is not a legal proceeding. The DoJ is part of the Administrative branch, not the Legislature. In a sane world, this claim would never be dignified.

"If you can't win on the facts, attack the process."

-- Mal