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Old 08-07-2019, 07:50 PM
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KarlGauss is offline
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'Absolute immunity' versus 'executive privilege'

What is the fundamental difference between the "absolute immunity" that might be granted to any aide of a US president and the president invoking "executive privilege" in suppressing an aide's testimony?

Today, the House Judiciary Committee sued to to force former White House counsel Donald F. McGahn II to testify before Congress. Apparently, the White House response will be to assert 'absolute immunity' from Congress's subpoenas.

I guess what I am really getting it is how is absolute immunity a fundamentally different defence than invoking executive privilege (and this NYT piece states that the two are not equivalent but provides no details), and if executive privilege is essentially inviolable, why does the White House not just assert executive privilege now? Why not play their trump card now? Am I wrong in thinking executive privilege is untouchable?

(I am putting this in Elections but could see it in GD or even GQ if the mods think it better placed somewhere else)
Old 08-11-2019, 12:15 AM
UltraVires is offline
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This is a good article about it (although it is one-sided and supports the controversial concept):

Basically, absolute immunity from testifying before Congress is larger than executive privilege. Executive privilege says that certain communications can be kept from Congress. Absolute immunity says that top advisors to the President cannot be forced to testify at all.

The idea is that Congress and the Executive are co-equal branches of government. One cannot order the other to do things like comply with a subpoena. As the article says, the President has no power to order Congress to come to the oval office, so why should Congress have the power to order the President or his top advisor to come to Congress?
Old 08-11-2019, 08:32 AM
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Because the different branches have different powers, of course.
Old 08-11-2019, 01:30 PM
UltraVires is offline
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Originally Posted by Chronos View Post
Because the different branches have different powers, of course.
Very true, but there is nothing in the Constitution to suggest that Congress has such a subpoena power. One may argue that its power to impeach constitutes a duty to investigate allegations which may lead to impeachment and to effectively investigate these allegations it must have a compulsory subpoena power, but does that lead to a power to subpoena the President's lawyer? That wouldn't fly in a normal grand jury proceeding.

Further, it would imply that the branches are not co-equal and that by giving Congress such a power it is greater than the Executive.

It is one of those interbranch tug of wars for which there is no precedent and will have to be fought.


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