Does Executive Privilege override 5 U.S.C. App. &#167;8H (c)? With respect to the testimony of Acting Director of National Intelligence McGuire before the Permanent Select Committee on Intelligence, U.S. House of Representatives on September 26, 2019, that as a member of the Executive Branch, Executive Privilege prevented him from sending the now infamous "Whistle-blower complaint to the Congressional Intelligence Committee's. By what legal theory does Executive Privilege override the plain wording of statute that: "(c) Upon receipt of a transmittal from the Inspector General under subsection (b), the head of the establishment shall, within 7 calendar days of such receipt, forward such transmittal to the intelligence committees, together with any comments the head of the establishment considers appropriate." This question is limited to the Directors responsibility to Executive Privilege and not other legal reasons opined by the Office of Legal Counsel in DoJ. Thanx
Executive privilege is a constitutional doctrine rooted in the separation of powers. Because it’s based on the Constitution, Congress cannot limit it by statute any more than Congress could limit the President’s authority to veto laws.
We may soon have a more definitive answer. A Grand Junction, Colorado newspaper is suing a politician for calling it "fake news", and the resolution of that case and the hypothetical that you propose would turn on the same legal principle. It is highly unlikely that such a lawsuit would prevail, because "fake news" probably doesn't constitute libel per se, because the comment could be construed as hyperbole or as a statement of opinion (neither of which are actionable), and even potentially, because a "speech and debate clause" defense under the state constitution might apply (depending upon the context in which the statement was made by the politician). The context of the particular tweet cited generally defines specified organizations as "the FAKE NEWS media" rather than accusing them of any particular instance of making a false statement, so it is probably an opinion or hyperbole. But, if the statement were made knowing it was false or with reckless disregard as to truth or falsity, and if the term "fake news" in the context in which it was used could be legitimately construed the imply a statement of fact which is not true, it wouldn't be impossible for the lawsuit to succeed, and depending upon the context of the statement, it could have such an implication. A suit against Trump could also implicate Presidential immunity doctrines which are more robust than immunity doctrines for other public officials, particularly if the "fake news" comment could be construed as part of the official duties of the President (for which there is absolute immunity) as opposed to his unofficial duties. The immunity question is a closer one than the question on the merits of defamation law about which there is much more case law to flesh out what is and isn't covered.
The ability to create such an office derives (according to Roosevelt, who invoked the power), from the constitutional authority of the president and the Trading with the Enemy Act amended by the War Powers Act, 1941. A president cannot repeal a part of The Constitution or an act of Congress, but he can undo an act by a president (as long as Congress hasn't come along and taken back a power for example by changing the "authorized" part to "required"). In a sense, that office is permanently gone, but until Congress or SCOTUS change the law, another president could effectively re-create that office and even give it the same name. The appendix to Title 50 which authorized the office is still there (not repealed). It is remotely possible that some other act or court ruling effectively nullifies this part of the law, but that would have to be determined by some president attempting to re-create the office and then someone else suing to prevent it (based on such an effectively nullification).
An executive order is a way of memorializing in writing Presidential authority that is either expressly granted to the President by the constitution or statute, or is left to President by implication either from a lack of guidance or as a result of the structure of the constitution and historical precedent. Congress has wide discretion to legislate in a manner that limits the power to make executive orders and pass regulations, and can mandate that the administration issue regulations in a certain area or refrain from issuing regulations in a certain area where the Executive branch is denied discretion or denied the right to set overarching policies as opposed to deciding things on a case by case basis at a lower level in the bureaucracy. In principle, Congress could so micromanage the executive branch that it would be unconstitutional, but that is basically a hypothetical concept with no meaningfully well defined boundaries. The hard cases involve grants of regulatory authority subject to further approval by a subpart of Congress like a committee, as opposed to a full fledged act of law (something called a "legislative veto") which has dubious constitutional status despite being common. The main "meta-legislation" governing regulations in general in the federal government is the Administrative Procedures Act. Subject to the limitations imposed by Congress, a President can take any approach desired to making and changing regulations, but the APA does impose meaningful limits, in particular, on how and how fast, existing regulations can be changed, which may make it hard to eliminate two regulations for each new one that the administration wants to pass or is mandated by Congress to adopt to implement statutes it has passed. But, because a "regulation" is not a meaningfully defined unit, it is a pretty meaningless edict. You can satisfy it simply by cramming two sections of a bunch of regulations into one, essentially reformatting it for political cosmetics rather than making substantive changes, or by incorporating something else by reference. So, the 2 for 1 EO is basically an aspirational statement of policy and attitude more than it is a meaningful constraint. No one could sue the administration or invalidate a regulation it passed because it didn't comply with this EO.
Relying on this version, proof of truth is only allowed in order to establish a "public interest" defense or for a "necessary defense"; but also "if an official is charged with the commission of an act in the exercise of his office". Good luck with "necessary defense". It is not a defense to say "But what I said is true". However, if the defamed person has been convicted in court of said act (the defamatory statement) then there can be no punishment.
It is not a crime in the US. It may be a firing offense depending on the nature of the appointment (that is, what exactly do you mean by &quot;diplomat&quot;?) or at least cause for demotion / reassignment. A diplomat from another country could be declared persona non grata, but again it is not a crime to act contrary to a governmental boycott call, in the US. This follows from the First Amendment.
This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions.
You are correct that the existence of a lawsuit -- on First Amendment or Fifth Amendment grounds -- is not a strong basis for believing that Acosta will have his pass reinstated. People file losing lawsuits all the time. But that doesn't really tell us anything about the merits of his case, which I discuss below. Temporary restraining order: The standard for TROs is well-established: This court may issue a temporary restraining order or a preliminary injunction only when the movant demonstrates that: there is a substantial likelihood plaintiff will succeed on the merits; plaintiff will be irreparably injured if an injunction is not granted; an injunction will not substantially injure the other party; and the public interest will be furthered by an injunction. Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001). I'd normally expect the court to be pretty speech-protective in a First Amendment TRO case, but because this is the White House, they'll probably give a fair amount of extra weight when figuring out how to balance everything here. I would not, however, expect either of the factors that you mentioned -- that this is a Fifth Amendment case and that few people have press passes -- to do much to change the court's analysis. I suspect it's going to come down to who is more credible about what happened and why. Fifth Amendment: The Constitution does not promise us much at all in terms of outcomes. What it does promise is that the government will go through reasonable procedures to arrive at those outcomes. As you seem to have identified, that's exactly what Sherrill was about. Sherrill does not say that everyone has the First Amendment right to a White House press pass; it says that that everyone has the Fifth Amendment right to due process when the White House decides whether to grant or deny a press pass -- especially because of the First Amendment interests implicated in those decisions. The basics ingredients of due process are notice and an opportunity to be heard by a neutral decision-maker, and that's all that Sherrill calls for: a publicly disclosed procedure by which the journalists can apply for credentials and appeal adverse decisions. Here, it's unclear whether the White House has provided Acosta with any notice or any opportunity to appeal his decision. If that's the case, they've almost certainly run afoul of Sherrill. But again, you are correct that this does not mean he gets his press pass back. If they find that the White House violated the Fifth Amendment as explained in Sherrill, the remedy will simply be to force it to go through the prescribed procedure. First Amendment: If it turns out that they use that procedure as a pretext to punish Acosta for protected speech, we would be out of Fifth Amendment territory and into First Amendment territory. If a court found that the White House had revoked his pass because he was from CNN, because they didn't like the questions he was asking, or because he didn't provide fawning coverage of the president, it is virtually certain that the White House would be forced to restore his credentials. But if they determine in a fair way that Acosta should have his pass revoked because he was violent, because he was infringing on other people's ability to do their job, or because he was otherwise violating established rules, a court would probably say that any of those was an acceptable justification. In that case, CNN would need a new White House correspondent.