The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At Lawfare, Neil Eggleston defends the Biden Administration's new eviction moratorium. In the essay, Eggleston admits that while White House Counsel for President Obama, he routinely called law professors for advice!
Second, there is a suggestion in Goldsmith's piece that the involvement of Laurence Tribe, Martha Minow, and Walter Dellinger was somehow improper or coerced by Pelosi. I do not agree with that suggestion at all. While working as White House counsel, I regularly spoke with outside lawyers, particularly law professors, about difficult legal issues. I wanted the best possible legal thinking from a variety of sources. On certain issues, such as national security law, immigration, and constitutional law, I had different "kitchen cabinets" that I consulted regularly. Among those law professors I consulted was Dellinger, just as he appears to have been consulted by the White House lawyers here. There were excellent lawyers at the department and in my own office, but I valued outside input as well. I found it helpful, particularly in evaluating creative ideas and especially as important pieces of the landscape changed quickly, as happened here.
Has any WH Counsel ever admitted to calling law professors as part of a "kitchen cabinet"? This statement seems like a significant concession. I do not think executive privilege would attach. Congress could send subpoenas for all records concerning communications with a "kitchen cabinet" of law professors. Or to make things simple, subpoena people like Tribe, Dellinger, and others about communications they've had with the White House. What a damning admission from Eggleston. Elizabeth Prelogar, the nominee for Solicitor General, should be asked if she has a "kitchen cabinet" of law professors.
Update: An earlier version of this post said that the attorney-client privilege would not be attached. I am not certain that is correct, and removed those assertions.