From the latest AP Release on the subject (may be updated during the day):
Taylor, who left the White House eight weeks ago for reasons she said were unrelated to the firings, was treading a rough line between obeying Bush’s order not to reveal internal White House deliberations and responding to a congressional subpoena compelling her to do so. Her lawyer, Neil Eggleston, sat at the witness table to advise her.
“I’m trying to be consistent and perhaps have not done a great job of that,” Taylor said. “I have tried.”
The committee’s ranking Republican, Sen. Arlen Specter, said that may not be enough to protect her from a contempt citation for failing to answer many of the committee’s questions.
“There’s no way you can come out a winner,” said Specter, R-Pa. “You might have been on safer legal ground if you’d said absolutely nothing.”
As for the prospects of pursuing a criminal citation for contempt of Congress, Leahy said only, “That’s a decision yet to be made.”
I think she’s in a very dangerous position because courts tend to hold that you cannot use a privilege (to the extent that executive privilege is valid) as both a sword and a shield. In other words, you cannot testify just about points helpful to your position while claiming everything else is privileged. She is at risk of being held in contempt because by testifying at all in the area, she may be held to have waived whatever privilege exists.
In general litigation, a party who partially waives its privilege as to some testimony can be held to have waived its privilege to all related testimony, and be compelled to testify about everything related.
This, of course, brings up both the question of who holds executive privilege (to the extent it exists, of course).
In the corporate context, if a laywer has a privileged communications with a corporate officer about corporate business, the privilige is held by the corporation, not the officer. If the officer leaves the corporation, the corporation continues to hold the privilige and may object to the former officer’s testimony about the privileged communications. If the former officer decides to voluntarily reveal the privileged communication (waiving a privilege it is not the former officer’s to waive), a court may still hold the communication privileged and bar the communication from evidence (though the court cannot erase it from the minds of the other parties). The former officer might also be subject to damages for revealing trade secrets, or an injunction prohibiting revealing them further.
If this reasoning holds (and executive privilige is valid), I don’t see why the White House cannot assert the privilege on behalf of a former employee. As such, I don’t see that Ms. Taylor’s actions would be considered a waiver on behalf of the White House, which might be some protection to her in a contempt action.
If she (as she professes) genuinely wants to testify, however, like Bricker I don’t know of any authority that would require her to comply with the White House directive. Assuming she is not asked about things legally secret/classified or otherwise formally protected from public disclosure, I would believe she has a First Amendment right to testify freely about government functioning (though I don’t know of any authority in this regard).
In discussing this around the office, one of the lawyers here told about a case he had where a former state government official gave him a statement about questionable actions that took place before he resigned his office (in part because he didn’t want to be involved in the shady dealings). Though the other side screamed and yelled, he was held not to be subject to privilege as he was not represented by any of the law firms involved in the litigation (and indeed had formally waived legal representation before my colleague took his statement). There was, however, no claim of state government executive privilege or other legal restriction to his voluntarily giving a statement.
As to the other questions that this issue suggests, the scope of the privilige or whether Congress will try to invoke its contempt power, I don’t see how much can be said without bringing this into GD territory (and upseting Cervaise).