It’s not an academic question, although it might be getting more so with the House vote today firming up its rules specifically (or at least ostensibly) in response to supposed presidential “obstruction.” For an administration that pledged firm non-compliance with an impeachment inquiry that hadn’t (yet) been approved by the full House, officials still working for the Trump White House have an odd habit of showing up for depositions. What gives?

Lawfare blog co-founder and Hoover Institute senior fellow Jack Goldsmith argued today that Trump has been extraordinarily weak in defending executive privilege. In essence, Goldsmith argued in a Twitter thread, Trump has thrown in the towel without much of a fight:

On 10-8, WHC Cipollone said that to avoid “lasting institutional harm on the Executive Branch and lasting damage to the separation of power, Trump *cannot permit his Administration to participate in this partisan inquiry under these circumstances*.” 2/https://t.co/4DBxZECHKO

— Jack Goldsmith (@jacklgoldsmith) October 31, 2019

Yovanovitch, Kent, Cooper, Taylor, and Sondland, all current executive officials, have testified to the president’s detriment on Ukraine matter and in defiance of WH instructions not to cooperate. I think Vidman defied the WH as well, but cannot confirm that. 4/

— Jack Goldsmith (@jacklgoldsmith) October 31, 2019

And now Morrison as well, although Morrison has also given notice of his intent to leave. It’s also worth noting that a privilege claim would bind these officials even after they left, if the claim was sustained. The Trump administration, however, isn’t even trying to sustain it, outside of one particular court fight:

The WH is asserting no legal authorities, and does not appear even to be trying to manage what executive officials can and cannot say. The WH has no juice, no tools. The Cipollone letter was pure bluster. In so, so many ways, Trump is a weak, not a strong, president. 6/

— Jack Goldsmith (@jacklgoldsmith) October 31, 2019

That’s certainly curious, as has been the parade of uncontested deposition appearances. It’s unknown whether any claims of privilege have been made within the proceedings, but based on the selective leaking going on, House Democrats appear to have had few if any obstacles placed in their path. “The White House isn’t even putting up a fight,” Goldsmith declares, which seems pretty clear.

But do they have grounds for such a fight? On the Lawfare blog itself, Jonathan Schaub contradicts Goldsmith’s base assumption that the Trump administration has grounds to oppose the depositions. Schaub’s argument is extensive and fair use won’t allow for enough excerpting to capture it all, but this makes clear that Schaub doesn’t believe Trump has conceded anything he has legitimately available to him:

Accordingly, unlike executive privilege more generally, the executive branch cannot rely on a string of historical incidents to support a claim that the president has the authority to withhold information from Congress in the context of an impeachment inquiry. Indeed, there do not appear to be any applicable historical examples or any presidents who have disagreed with Polk’s view that, in the exercise of the impeachment power, the House could “penetrate into the most secret recesses of the Executive Departments[,] … command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial.” That is not to say, of course, that some evidentiary privileges—such as attorney-client privilege—could not be validly raised in response to demands from the House or in a Senate impeachment trial. But the judge of those privileges would be the House and the Senate, pursuant to their respective constitutional authorities related to impeachment.

As my paper demonstrates, distinguishing the constitutional executive’s privilege in the context of oversight from the assertion of such evidentiary privileges is vital to restoring the executive’s privilege to its previous, limited role. Such evidentiary privileges may very well have a role to play in guarding against excess in congressional oversight requests and information demands. But they are not, as the executive branch has redefined them, each various components of a more general affirmative constitutional authority belonging to the president. They protect general, undifferentiated confidentiality interests and have developed attendant balancing tests and waiver rules corresponding to the weight and purposes of those confidentiality interests. The executive’s privilege is not an evidentiary privilege but an immunity applicable only to oversight and designed to protect only specific, identified national interests when absolutely necessary as determined by the president.

Even if executive privilege did apply to an impeachment inquiry, it would not solve all the administration’s problems: The executive branch acknowledges that the privilege is qualified. Every formal assertion of executive privilege is accompanied by an opinion from the Department of Justice, and the latter half of the opinion always balances the executive branch’s interests in maintaining the confidentiality of the information against Congress’s needs. The opinions adopt the standard from the D.C. Circuit’s opinion in Senate Select: that, to overcome the privilege, Congress must show the information is “demonstrably critical” to the fulfillment of its legislative responsibilities. And the opinions often recite the statement from Senate Selectthat Congress has no real need for a “precise reconstruction of past events” in fulfilling its legislative function. Because Congress has no need for those precise facts, the executive branch unfailingly concludes that Congress’s interests do not outweigh the executive branch’s confidentiality interests.

In an impeachment inquiry, however, Congress has precisely that need for an accurate and definitive reconstruction of past events to determine if a “high crime or misdemeanor” has occurred. Thus, even if executive privilege could potentially be applicable to impeachment, it is hard to see how Congress’s need for all the information relevant to that inquiry would not outweigh the need for confidentiality.

In other words, contra Goldsmith, the issue isn’t that Trump is a weak president. It’s that all presidents are weak in claiming executive privilege in an impeachment process. Trump famously declined to assert privilege in the Mueller probe, hoping that complete cooperation would end his troubles — and it did, in that direction. Trump could have exercised privilege in that case, though, because the investigation was being conducted by an inferior executive branch officer. In an impeachment, all of that falls to the wayside, Schaub concludes.

That offers a better explanation for the parade of depositions that have taken place the past couple of weeks. It also might explain why Nancy Pelosi wanted and got a full House vote today formalizing the parameters of the inquiry. It sets a marker that the full House at least tacitly approved of an impeachment inquiry and makes it even tougher for the White House to make its privilege claims — even though the White House appears to have already realized that those claims won’t stand up anyway.