DOJ places new legal barrier between Democrats and Trump impeachment witnesses

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19. Not necessarily

The Supreme Court has not found that the assertion of executive privilege must always give way in the context of an impeachment proceeding.

The leading case on executive privilege, United States v. Nixon, had a narrow holding. While the Court rejected the argument that the president is entitled to an "absolute" privilege, the Court found that presidential communications are "presumptively privileged" because the privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution.

In deciding whether or not the presumption of privilege can and should be overridden in a particular case, the Court limited itself to the assertion of executive privilege in the context of a criminal case. Moreover, the Court distinguished between "generalized" assertions of privilege and assertions of executive privilege based on a claimed need to protect military, diplomatic, or sensitive national security secrets:

"We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."

In US v. Nixon, the Court ultimately concluded that the privilege must give way because, in the context of a criminal case, Nixon had only made a generalized assertion of a need for confidentiality and had not tied that assertion to matters involving military, diplomatic or national security.

The point of all of this is that the leading decisions on executive privilege leave room for Trump to claim that in the particular context in which it is being asserted, the presumption in favor of the privilege should hold. I think that argument should be rejected in this instance, but the outcome is not necessarily pre-ordained.