Updated: Dec 7, 2019
The assertion of Executive Privilege (“EP”) provides a lawful legal basis to refuse to comply with a Congressional subpoena seeking either documents or testimony. Unequivocally, it is not prima facie evidence of obstruction of justice by the Executive Branch. EP is the proposition that “certain confidential or sensitive communications within the Executive Branch are constitutionally protected from compelled disclosure to the Executive’s coequal branches—Congress and the courts.” There are five types of EP: (1) presidential communications; (2) deliberative process; (3) attorney-client communications; (4) law enforcement investigations; and (5) sensitive military, diplomatic and national security information.
An informal request or subpoena from Congress implicating Executive Branch confidentiality interests initiates a process where each branch is constitutionally obligated to “negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch” in order to reach an “accommodation” that “meets Congress’s legitimate, articulated needs in a way that protects, to the fullest extent possible, important Executive Branch confidentiality interests.” This is known as the “Accommodation Process” … now ineptly, disingenuously, partisanly, inappropriately and misleadingly characterized by House Intelligence Committee Chairman Adam Schiff (“Schiff”) as “stonewalling”, “slow-walking”, or “evidence of obstruction”.
It is Schiff’s irregularly inappropriate civil discovery approach to subpoenas issued by his committee where the process problem(s) lie. Schiff has taken the misguided extra-Constitutional position that once a subpoena has been issued, the Executive Branch has an obligation to respond or assert a valid legal basis for not responding by the return date for the subpoena … and that the failure to respond is conclusive evidence of obstruction of justice. That is a misstatement of the law and ... yet another ... LIE.
Understand, it is it is only when the Accommodation Process is at an impasse that the Executive Branch considers whether the president should formally invoke executive privilege. But, Schiff’s bad faith abrogation of the Accommodation Process, disregard for the legitimate interests of the Executive Branch and “flat insistence” for compliance has resulted in irreconcilable extra-Constitutional process issues that House Democrats have proven they have little stomach for litigating.
You see, process matters and all the henny penny Resistance mongering obstruction epithets can't, won't and don't change that. Now would be one of those times to start thinking for yourself … because Adam Schiff is about to take us over a cliff.