On the recordJanuary 29, 2020
Mr. Chief Justice, I send a question to the desk. The CHIEF JUSTICE. Senators Cornyn and Gardner ask counsel for the President: What are the consequences to the Presidency, the President's constitutional role as the head of the executive branch, and the advice the President can expect from his senior advisers, if the Senate seeks to resolve claims of executive privilege for subpoenas in this impeachment trial without any determination by an article III court? Mr. Counsel PHILBIN. Mr. Chief Justice, I thank the Senators for the question. The Supreme Court has recognized that the confidentiality of communications with the President is essential--keeping those communications confidential is essential for the proper functioning of the government. In Nixon v. United States, the court explained that this privilege is grounded in the separation of powers and essential for the functioning of the executive for this reason: In order to receive candid advice, the President has to be able to be sure that those who are speaking with him have the confidence that what they say is not going to be revealed, that their advice can remain confidential. If it is not confidential, they would temper what they are saying; they wouldn't be candid with the President; and the President, then, would not be able to get the best advice. It is the same concern that underpins the deliberative process aspect of executive privilege.…
Source
govinfo.gov




