In this article from the guardian - https://www.theguardian.com/us-news/2018/jan/16/steve-bannon-trump-congress-intelligence-questioning it has been mentioned that, former white house aide, Steve Bannon is claiming that he is unable to testify because white house told him not to do so and so leaders from democratic party are claiming that a gag order has been used to stop him from testifying to the the House Intelligence Committee.

Isn't it unconstitutional to do so? unless gag order has been given to prevent any kind of leak which may lead to risk associated with national security, which is not the case here? And ultimately who has the final authority to issue a gag order?

  • 1
    Courts, not presidents, issue "gag orders".
    – user6726
    Jan 17, 2018 at 16:02
  • @user6726 But even if a gag order has been issued to a person from a judge, can it stop someone to testify in a congressional hearing? Jan 17, 2018 at 16:14

1 Answer 1


There is a legal doctrine of executive privilege, where the executive branch can resist subpoenas, but that privilege is limited (US v. Nixon).

Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

SCOTUS pointed to the kinds of cases where such privilege would be valid

Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution.

But otherwise,

when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice

Decades later, Harriet Miers claimed executive immunity (as White House counsel) to a subpoena to testify before the Committee on the Judiciary, and the district court ruled rebuffed that claim

There are powerful reasons supporting the rejection of absolute immunity as asserted by the Executive here. If the Court held otherwise, the presumptive presidential privilege could be transformed into an absolute privilege and Congress's legitimate interest in inquiry could be easily thwarted.

if the Executive's absolute immunity argument were to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege.

However, executive privilege has been invoked dozens of times since Nixon – there are no other SCOTUS decisions.

We should set aside current political posturing. POTUS might claim executive privilege, and then the question is whether the courts would order Banon to testify. We don't know the basis for such privilege, but we can assume that it would involve national security issues (thus might be within the penumbra of the Nixon ruling). Traditionally, executive privilege has involved the person who is president, not the person who ended up becoming president, so it would be extremely surprising if the courts upheld immunity in a pre-election matter.

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