Can executive privilege be used to stop a former executive branch official from testifying before Congress? And how exactly would that work? If POTUS invoked executive privilege, but a current executive branch official were to ignore that & testify anywhere they could be fired. What can the President do so stop someone who no longer works for the executive branch from testifying against his wishes?
Non-Disclosure Agreements vs Contempt of Congress?
Any members of the Bar care to comment on this?
I can’t think of a way that executive privilege can be used to prevent a willing witness from testifying.
The President could conceivably invoke the State Secrets provision and declare any testimony as a endangerment to national security. Courts have traditIonaply granted broad leeway to the executive branch that they should just take their word that state secrets are involved, even when later declassification has revealed it was just an asscovering manouever.
Does non-disclosure have any force vs. any requirement to testify? IIRC you cannot (legally) contract to do an illegal thing, and refusing to testify in the appropriate situation is illegal. Would attempting to enforce a non-disclosure agreement before (by threatening the penalties) or after (by attempting to collect) become obstruction of justice or witness tampering?
IANAL, but…
As for state secrets - IIRC, the judge has the option of demanding to hear enough details in chambers to verify the state secret claim (much as - see other thread - they can demand that a witness explain, in private, off the record, why they are entitled to plead the fifth). Judges rarely do demand details, and of course, that option is open to appeal until the appeal process reaches a trained seal deferential enough to “agree” with the executive. Should the courts refuse to allow the state secrets claim, the prosecution has the option of either revealing said “secrets” in open court or withdrawing the charges. We have seen something similar to this in the cases where Stingray cell tower fakers have been used - if the court fails to knuckle under to the state, demands the details of the device be explained in open court, then the prosecution tends to withdraw charges instead.
As for the OP - the executive can go the route above with an (ex)staffer too. An alternative to state secret is “Executive Privilege”. Somewhat like a lawyer-client privilege, some internal discussions of the executive branch are private. The participants cannot be compelled to talk about them. If the court denies this, presumably the appeal will work its way up to the Supremes.
However, if a participant does decide to talk, and is not violating state secrets acts, then there’s not much POTUS can do.
Which then brings up the question “what’s a state secret”? I doubt the prez can declare a broad range of normal business “top secret”.
After 9/11, the government started classifying everything, including some PREVIOUSLY ISSUED PRESS RELEASES. Anything can be classified at any level by the president or his designees.
The Wikileaks fiasco put some federal employees in the awkward position of not being allowed to read material that was published worldwide, because the government still considered it classified and those employees did not have appropriate clearance to see it.
Our security state, keeping us secure.
So if POTUS tried to invoke the State Secrets Privilege before a Senate committee would a judge be involved at all, or would the committee itself make that ruling? Presumably they could just here testimony behind closed doors.
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I can’t remember when this happened, but I think it has been done. Perhaps by the Bush admin? Not sure.
And executive privilege is not about security. The information doesn’t have to be classified-the intent is to allow the President to get the best advice without people worrying about having to disclose their conversations. It is the same principle as attorney client privilege.
All the Pres has to do is invoke it. Whether the person testifying will pay attention is a different matter.
Not so much anymore.
After all, anyone can google ‘Stingray’ and learn most of the details about how that device works. Just the basic info that ‘police can use your cell phone signal to locate where you are’ should be enough to allow a reaction to this.
In the case of testifying before a Congressional committee, there is no judge to hear details in chambers. I suspect that a committee could hear testimony in private, if classified information is involved. We only see testimony because making the hearings public is SOP, but it should be possible to have a closed hearing.
The legislature is essentially the direct arbiter of disputes arising under its own subpoena powers.