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Archive of posts filed under the Privilege Assertions Before Congress category.

Congressional Committees Should Consider Addressing Fifth Amendment Waiver in their Rules

As we move toward the opening of the 116thCongress, there are many ideas for reforming congressional rules and practice. One small but not insignificant change that might be considered relates to an issue that arises from time to time—when does a witness before Congress waive her Fifth Amendment privilege by making a voluntary exculpatory opening [...]

Kavanaugh’s Missing Records

Yeah, I know. The transparency and separation of powers issues that everyone thought were so important with respect to the Kavanaugh nomination a week or so ago are now yesterday’s news. For that very reason, I am putting a longer piece on the Presidential Records Act and its application to the Kavanaugh hearing on the [...]

Wright on Executive Privilege with Some Additional Thoughts Hazarded by Stern

Steve Bannon, the former chief strategist in the Trump White House, has refused to answer questions from the House Permanent Select Committee on Intelligence (HPSCI) regarding his time in the White House and on the presidential transition team. Bannon claims these subjects may implicate executive privilege and is deferring to the White House counsel’s office [...]

Comey and Executive Privilege (with Update)

[See Update below] Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and [...]

The Senate’s Options in the Flynn Matter

Just got back from a trip abroad. Did I miss anything? I thought my law school classmate Jim Comey could fill me in on the latest, but for some reason my emails to him keep bouncing back . . . I know, I’m hilarious. Ok, let’s take a look at the controversy du jour, namely [...]

(Not So) Desperately Seeking Trump’s Tax Returns

Despite the great deal of chatter (marches even) about the need for President Trump to release his tax returns, there has been relatively little discussion of Congress’s statutory authority to obtain these materials. Two exceptions are these comments by Professors Andy Grewal and George Yin. Grewal and Yin agree that Congress has the authority to [...]

Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email [...]

An Urgent Need to Combat Executive Privilege after COGR v. Lynch

In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything, [...]

Senate Enforcement Action against Backpage CEO

I am a little late on this, but last month the Senate authorized a rare civil action to enforce a subpoena, utilizing a statutory mechanism for enforcement of Senate (but not House) subpoenas. See 28 U.S.C. § 1365. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee [...]

Martin Shkreli’s Contempt for Congress

I have never seen anything like the deportment of this witness, who smirked and made various faces while taking the Fifth before the House Committee on Oversight and Government Reform. At least his lawyer did not allow him to make an opening statement. Instead, the lawyer gave an impromptu press conference afterwards, in which he made [...]