I found this recent article by Margaret Taylor at Lawfare:
Congressional Subpoena Power and Executive Privilege: The Coming Showdown Between the Branches
By Margaret Taylor
Wednesday, January 30, 2019, 7:00 AM
"If history is any guide, the question of what executive branch documents and testimony the 116th Congress will receive access to will likely not be decided by a court. Disputes between Congress and the president over the scope of executive privilege are better understood as political battles with legal underpinnings—not as matters of pure law. As such, debates over the scope of executive privilege are likely to play out in the context of negotiations between House Democrats and the Trump administration, with each side making political calculations about what fights are worth having, when it makes sense to fight and when it makes sense to cooperate."
...
"Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena."
"Either house of Congress can vote to hold in contempt a witness who refuses to provide testimony or produce requested documents pursuant to a congressionally authorized subpoena. As set out in 2 U.S.C. § 194, the U.S. attorney for the District of Columbia has the “duty [] to bring the matter before the grand jury for its action.” Contempt of Congress, which is a federal misdemeanor, is punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison. But if the executive branch is not inclined to prosecute a contemnor (the contemnor is a person or entity who is guilty of contempt before a judicial or legislative body), Congress will have a difficult time implementing such a penalty. Congress can also file a lawsuit asking a judge to order the witness to provide the information, raising the additional possibility of imprisonment for contempt of court."
"A valid assertion of executive privilege provides a lawful basis to decline to answer a congressional subpoena for testimony or documents. At its most basic, executive privilege 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 is no mention of executive privilege in the United States Constitution—rather, it is a principle implied in the Constitution’s separation of powers. Bies identifies the five general types of executive privilege that the executive branch has claimed in the past: presidential communications, deliberative process, attorney-client communications, law enforcement investigations, and sensitive military, diplomatic and national security information. But the precise contours of any executive privilege are contested, and the executive branch, the courts and Congress tend to take divergent positions that favor their respective constitutional roles."
Read the rest:
https://www.lawfareblog.com/congressional-subpoena-power-and-executive-privilege-coming-showdown-between-branches
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