White House Counsel Sends Fiona Hill Letter on “Executive Privilege” on Eve of Public Hearing

On Thursday, Deputy White House Counsel Michael M. Purpura sent a letter to Fiona Hill’s attorney setting out the administration’s views of executive privilege. The letter is in response to a letter Hill’s attorney sent to the Deputy White House Counsel two days earlier. Just Security has obtained both letters, which we have added to our Public Documents Clearinghouse.

The two sides exchanged a similar set of letters in the run up to Hill’s deposition in October. The new set of letters reflects on the testimony Hill provided in her deposition and continues the exchange of differing views on how executive privilege functions when Congress is acting in exercise of its impeachment powers.

The White House Counsel Office’s letter is a technical legal argument that reflects the normal pattern of such communications in past administrations. It is unlike Trump White House Counsel Pat Cipollone’s letter to Congress on October 8 calling off any participation by the administration in the impeachment proceedings, which Gregg Nunziata analyzed at Just Security.

The exchange of letters also reflects an arrangement that allows former White House officials to testify before Congress with an effort to seek a common understanding of topics subject to classified information and executive privilege. That position contrasts with the White House Counsel’s position that former senior aides to the President — including former White House Counsel Donald McGahn and former National Security Adviser John Bolton — have “absolutely immunity” and cannot appear before Congress.

With respect to classified information, Mr. Purpura wrote, “We appreciate that, in her initial deposition, Dr. Hill endeavored not to disclose classified information and declined to answer a question potentially calling for the disclosure of classified information.” As to issues of executive privilege, Purpura said, “We also appreciate that Dr. Hill did not reveal any deliberative processes related to the July 25, 2019 call between President Trump and President Zelenskyy and did not testify about communications between the President and foreign heads of state or other diplomatic communications.” The two sides, however, maintain different views on the scope and availability of executive privilege in impeachment proceedings.

For more on executive privilege and how it functions in impeachment proceedings, readers may be interested in articles at Just Security by Lawrence Friedman, Jean Galbraith and Michel Paradis. 

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