I’m stuck in bed with some kind of unpleasant bug this morning, so if my approach here is nuts, chalk it up to the bug. And I had a hard time sleeping last night, not only because of the bug, but because of this outrageous story:
“President Trump has gone to extraordinary lengths to conceal details of his conversations with Russian President Vladimir Putin, including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials, current and former U.S. officials said.”
There is a robust debate about whether the House or Mueller can subpoena the translator or whether Trump could invoke executive privilege. On the one hand, the Supreme Court in U.S. v. Nixon clearly approached executive privilege as a balancing test, not a blanket rule.
On the other hand, dicta in U.S. v. Nixon indicate a special protection of diplomatic/foreign executive communication, and Eric Columbus flagged this remarkable twist: an OLC opinion recognizing this concern was written by AG nominee Bill Barr. See Eric’s thoughtful thread here. The counterargument is that these circumstances are so extraordinary, and the basis for suspicion of criminal conduct are so valid, that the normal rules no longer apply.
I have thought about the balance of these two positions, and how to make sense of them through the lens of separation of powers. I think one answer is to think four-dimensionally about the three branches, meaning that they work out stages over a sequence of time back-and-forth.