Executive Privilege Should Have No Power When It Comes to an Impeachment

The House has now begun the public phase of its impeachment process. But during its closed-door sessions last week, more than 10 current and former executive-branch officials—including Acting Chief of Staff Mick Mulvaney and the top National Security Council lawyer, John Eisenberg—refused to show up. Each had been subpoenaed to appear. Compliance with a subpoena is not normally optional, of course.

But the witnesses declined to appear, at the White House’s direction. The White House argued that the Constitution’s separation of powers prohibits Congress from requiring close presidential advisers, such as Mulvaney and Eisenberg, to testify, and prohibits Congress from requiring any executive-branch official to appear for a deposition without a government lawyer present, two “prophylactic” constitutional doctrines—one old and one new—that the executive branch says are necessary to protect executive privilege. These doctrines purport to allow current and former executive-branch officials to refuse to comply with a congressional subpoena. But they have never before been applied to a formal impeachment inquiry. Nor has executive privilege.

When the Democrats reclaimed the House of Representatives in the 2018 election, a was that the terrain in Washington had . The Democrats would now have the constitutional authority” in response.