“An Amorphous Concept”: William C. Banks Weighs In on Executive Privilege in The Washington Times

Executive privilege battles between Trump, Mueller could color midterm elections

(The Washington Times | Jan. 25, 2018) The White House’s increasingly aggressive threat to invoke executive privilege to keep current and former aides from answering questions in the competing Russian election meddling probes could work in the short term but set up President Trump for some bigger headaches down the road.

While a constitutional battle over what advice and conversations a president can effectively wall off may delay congressional probes and special counsel Robert Mueller’s investigation in the short term, legal analysts warn that the strategy risks dragging the toxic politics of the controversy into the heart of the midterm elections, which are just 10 months away.

With Mr. Mueller’s investigation, particularly, inching ever closer to a confrontation with Mr. Trump, legal scholars are divided over how Mr. Mueller may try to counter a potential White House claim of executive privilege and how quickly the courts can mediate any disputes.

 “Executive privilege is an amorphous concept,” said William Banks, a professor at the Syracuse University College of Law and a former special counsel to the Senate Judiciary Committee. “It has never been tested the way it could soon be tested.” 

The two sides will clash if Mr. Mueller moves to subpoena testimony from the president or if Mr. Trump voluntarily agrees to an interview — a development that could happen as early as next month.

Executive privilege protects the confidentiality of presidential decision-making by allowing the president, and at times his staff, to keep certain information from the courts, Congress and the public. The concept is not mentioned in the Constitution, but since the presidency of George Washington the concept has emerged from the founders’ doctrine of a separation of powers giving the executive, legislative and judicial branches their separate spheres …

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See Also: “Steve Bannon could go to jail if he won’t talk to Congress about Russia” (Vox | Feb. 19, 2018)