Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the answer is no. The core of his argument was that there was no legal mechanism to prevent a former official from voluntarily disclosing privileged information to Congress or to anyone else.
In response to Columbus, I noted that executive privilege belongs to the president, not to subordinate officials, and “it is hard to see why the availability of the privilege should turn on the subordinate’s preferences.” The issue I saw was procedural. If the former official declines to obey the president’s instruction to assert executive privilege, and the congressional committee declines to allow the administration to raise its objections directly, the burden would be on the administration to bring a lawsuit to restrain the former official from testifying. An analogous suit was brought by the executive branch to prevent AT&T from complying with a congressional subpoena in the 1970s. See United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).
In a subsequent article, Columbus acknowledged the possibility of the executive bringing such an action, but argued that it “would almost surely be laughed out of court.” He contended that “[a] court could not enjoin Comey from testifying unless it could fathom a rationale that would also bar Comey from revealing the same information by writing a book, going on the Sunday shows, taking to Twitter or chatting at his local bagel shop.” The premise of Columbus’s argument was that because Comey was eager to provide information to Congress and/or the general public, there was no way for a court (or anyone else) to stop him. Columbus distinguished Comey’s situation from that of a “reluctant” former official, who does not “really” want to testify or provide the information demanded by Congress.
In going through some files the other day, I came across materials related to Harriet Miers, who served as White House counsel in the Bush administration and who is Columbus’s example of a “reluctant” former official subpoenaed by Congress. Contrary to Columbus, it seems to me that the Miers case is basically on all fours with the Comey situation, and I will take this opportunity to explain why. (It also enables me to clean out some old files, so yah!)
About 10 years ago the House Judiciary Committee, then chaired by Representative John Conyers (D-Mich.), conducted an investigation of the Bush administration’s firing of certain U.S. attorneys. In the course of this investigation, the committee issued subpoenas for documents and testimony to several current or former White House officials, including Miers.