Congressional Oversight of the White House ( 2021 )

(Slip Opinion)
Congressional Oversight of the White House
Congressional oversight of the White House is subject to greater constitutional limitations
than oversight of the departments and agencies of the Executive Branch, in light of the
White House staff’s important role in advising and assisting the President in the dis-
charge of his constitutional responsibilities, the need to ensure the independence of the
Presidency, and the heightened confidentiality interests in White House communica-
tions.
January 8, 2021
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This memorandum opinion summarizes the principles and practices
governing congressional oversight of the White House. The White House,
as we use the term here, refers to those components within the Executive
Office of the President (“EOP”), such as the White House Office and the
National Security Council, whose principal function is to advise and assist
the President in the discharge of the duties of his office. All three branch-
es of government have recognized that the White House has a role and
status distinct from the executive branch departments and agencies, and
this Office has long recognized those distinctions to be critical to the
development of principles and practices for congressional oversight
addressed to the White House.
The Constitution vests all of “[t]he executive Power” in the President
and charges him alone with the responsibility to “take Care that the Laws
be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. In carrying
out that charge, the President necessarily depends on “the assistance of
subordinates,” Myers v. United States, 272 U.S. 52, 117 (1926), most of
whom are his appointed officials in the executive departments and agen-
cies. Yet the size and complexity of modern federal administration have
required the establishment of the White House as an organizational appa-
ratus to directly support the President in the discharge of his responsibili-
ties. White House personnel work in close proximity to the President and
advise and assist him in the development of presidential policy, in super-
vising and guiding the affairs of the executive branch departments and
agencies, and in communicating with Congress, the American public, and
foreign governments.
1
45 Op. O.L.C. __ (Jan. 8, 2021)
The White House’s important role in advising and assisting the Presi-
dent has special significance for congressional oversight. Each House of
Congress has, as an adjunct to its legislative power, the constitutional
authority to obtain information, a power typically carried out through its
committees. But this investigative authority, often referred to as “over-
sight” authority, is subject to limitations. A congressional information
request “is valid only if it is ‘related to, and in furtherance of, a legitimate
task of the Congress.’” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031
(2020) (quoting Watkins v. United States, 354 U.S. 178, 187 (1957)).
Consequently, the Executive Branch must scrutinize the asserted legisla-
tive purpose underlying a congressional request by examining the objec-
tive fit between that purpose and the information sought. Because Con-
gress may conduct oversight investigations only with respect to
“‘subject[s] on which legislation could be had,’” id. (quoting Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 506 (1975)), Congress may not
conduct such investigations for the purpose of reviewing the discharge of
functions exclusively entrusted to the President by the Constitution. See,
e.g., Assertion of Executive Privilege with Respect to Clemency Decision,
23 Op. O.L.C. 1, 2 (1999) (Reno, Att’y Gen.) (“Clemency Decision”). 1 It
follows that the activities of White House advisers are less likely than the
activities of the departments’ and agencies’ staffs to involve matters
within Congress’s oversight authority.
Even when Congress operates within the appropriate scope of its over-
sight authority, the Constitution places additional separation of powers
constraints on inquiries directed at the White House. The Supreme Court
1 This memorandum addresses Congress’s authority to investigate in furtherance of its
power to legislate. See McGrain v. Daugherty, 273 U.S. 135, 175 (1927). We do not
consider Congress’s parallel authority to obtain the information necessary to the discharge
of its other powers, such as the House’s power to impeach, although we have recognized
that similar principles apply in those areas. See, e.g., Exclusion of Agency Counsel from
Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *3 (Nov. 1,
2019) (recognizing “that a congressional committee must likewise make a showing of
need that is sufficient to overcome [executive] privilege in connection with an impeach-
ment inquiry”); Letter for Pat A. Cipollone, Counsel to the President, from Steven A.
Engel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3, 2019) (recogniz-
ing that the immunity of certain presidential advisers from compelled congressional
testimony “applies in an impeachment inquiry just as it applies in a legislative oversight
inquiry”).
2
Congressional Oversight of the White House
has recognized the importance of “the Executive Branch’s interests in
maintaining the autonomy of [the Presidency] and safeguarding the confi-
dentiality of its communications.” Cheney v. U.S. Dist. Ct., 542 U.S. 367,
385 (2004). These concerns are particularly acute with respect to White
House advisers. Congressional oversight directed at the White House
must be conducted in a way that protects the ability of the White House to
function effectively in advising and assisting the President as he carries
out his responsibilities under the Constitution.
Congressional inquiries are also constrained by the heightened confi-
dentiality interests in White House communications. See id. At the core of
those interests is the presidential communications component of executive
privilege, which covers many White House communications involving
presidential decision-making. Congressional inquiries directed to the
White House must take account of the presumptive application of execu-
tive privilege to White House communications, as well as the President’s
interests in autonomy and independence. Even when the White House
may have relevant information, these separation of powers and privilege
concerns weigh in favor of Congress seeking available information first
from the departments and agencies before proceeding with White House
requests. 2
This memorandum proceeds in four Parts. Part I describes the devel-
opment of the White House as an organization and its central role in
advising and assisting the President. Part II discusses the scope of con-
gressional oversight authority and the limits on that authority as it applies
to matters related to the discharge of the President’s constitutional func-
tions. Part III explains that when Congress directs its oversight requests to
the White House, the constitutionally mandated “accommodation process”
should take into account the limitations imposed on those requests by
separation of powers principles and the heightened executive privilege
interests attending the communications of the White House.
2 Although this memorandum addresses the EOP components whose principal function
is to advise and assist the President, many of the principles discussed here would apply as
well to so-called “dual hat” presidential advisers in other components who “exercise
substantial independent authority or perform other functions in addition to advising the
President.” In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). To the extent that
Congress directs oversight efforts at activities implicating the advising “hat” of those
officials, many of the same principles governing oversight would apply.
3
45 Op. O.L.C. __ (Jan. 8, 2021)
Finally, Part IV assesses the mechanisms for enforcing congressional
subpoenas and discusses legal issues commonly raised by congressional
subpoenas directed to White House staff. Historically, Congress has had
no shortage of ways to use its powers to press executive branch officials
to negotiate and to comply with appropriate informational demands.
Although congressional committees have recently sued to enforce several
subpoenas against executive officials, those lawsuits lack a foundation in
our Nation’s history and fall outside the constitutional and statutory
jurisdiction of the federal courts. Congress and the Executive Branch have
traditionally worked out their disputes through negotiation and compro-
mise, and the Department of Justice believes that those time-tested meth-
ods are the appropriate means for resolving disputes over congressional
information requests, no matter whether directed at the White House or
the departments and agencies within the Executive Branch.
I. Historical Background
Article II of the Constitution establishes a unitary Executive Branch
headed by the President, and it assigns to him an array of important func-
tions, including responsibility for the Nation’s foreign relations, military
affairs, and law enforcement. See Seila Law LLC v. Consumer Fin. Prot.
Bureau, 140 S. Ct. 2183, 2197 (2020) (“The entire ‘executive Power’
belongs to the President alone.”); Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 550–51 (1977) (Rehnquist, J., dissenting) (“[T]he President is made
the sole repository of the executive powers of the United States, and the
powers entrusted to him as well as the duties imposed upon him are awe-
some indeed.”). It is no surprise that, in a “world of extraordinary admin-
istrative complexity and near-incalculable presidential responsibilities,”
Presidents have consistently and increasingly turned to the “assistance of
close aides” in the White House to carry out their duties. Elena Kagan,
Presidential Administration, 114 Harv. L. Rev. 2245, 2273 (2001).
The White House’s modern organizational form traces to the EOP’s
creation in 1939 as “an institutional response to needs felt by every occu-
pant of the Oval Office . . . . [T]hese were, and remain, needs for advice
and assistance.” Harold C. Relyea, The Executive Office Concept, in The
Executive Office of the President: A Historical, Biographical, and Biblio-
graphical Guide 4 (Harold C. Relyea ed., 1997). As one leading scholar
4
Congressional Oversight of the White House
put it a decade after its establishment, “[t]he creation of the Executive
Office of the President was a milestone in the history of the Presidency.”
George A. Graham, The Presidency and the Executive Office of the Presi-
dent, 12 J. Pol. 599, 603 (1950); see also Wayne Coy, Federal Executive
Reorganization Re-examined: Basic Problems, 40 Am. Pol. Sci. Rev.
1124, 1131–32 (1946) (“[T]he largest step toward enabling the President
to ‘take care’ of the effective operation of the administrative system
occurred in 1939, with the establishment of the Executive Office of the
President.”).
Long before the EOP’s establishment, Presidents received confidential
advice and assistance from individuals other than department and agency
heads. President Jackson sought help from a group of informal advisers
known as the “Kitchen Cabinet,” which “performed most of the functions
of a modern staff, serving his personal and political needs.” Richard B.
Latner, The Kitchen Cabinet and Andrew Jackson’s Advisory System, 65
J. Am. Hist. 367, 379 (1978). Historians have characterized this group of
informal advisers “as an early prototype of the President’s White House
staff, a group of personal aides providing the President with a variety of
services.” Id. at 378; see also id. (noting that Jackson’s informal advisers
shared his “perspective in overseeing the general direction of his admin-
istration, instead of the more limited perspective of department heads”).
The tradition of Jackson-style kitchen cabinets continued for nearly a
century: “John Tyler had his ‘Virginia Schoolmasters’; Grover Cleveland
maintained a ‘Fishing Cabinet’; Teddy Roosevelt sported the ‘Tennis
Cabinet’; Warren Harding encouraged a ‘Poker Cabinet’; [and] Herbert
Hoover instituted a ‘Medicine Ball Cabinet.’” Relyea, The Executive
Office Concept at 43.
During the 1920s, Congress considered several proposals to more for-
mally establish the “administrative machinery” needed “to enable the
President to discharge his managerial duties.” Edward H. Hobbs, An
Historical Review of Plans for Presidential Staffing, 21 L. & Contemp.
Probs. 663, 670 (1956). Although these initial proposals were not adopted,
the advent of the New Deal spurred lasting action. As the administrative
state dramatically expanded, President Franklin D. Roosevelt realized that
he needed more staff to enable him to carry out his mounting responsibili-
ties. In early 1936, he established a three-member committee charged with
“investigat[ing] and report[ing]” upon “the organization for the perfor-
5
45 Op. O.L.C. __ (Jan. 8, 2021)
mance of the duties imposed upon the President in exercising the execu-
tive power vested in him by the Constitution of the United States.” Presi-
dent’s Committee on Administrative Management, Administrative Man-
agement in the Government of the United States 2 (1937) (“Brownlow
Report”). The President’s Committee on Administrative Management,
more commonly known as the Brownlow Committee after its chair, “sur-
veyed the landscape immediately after the spate of New Deal reforms,
[and] found a President who although ‘now ha[ving] popular responsibil-
ity’ for the ‘direction and control of all departments and agencies of the
Executive Branch . . . [was] not equipped with adequate legal authority or
administrative machinery to enable him to exercise it.’” Kagan, Presiden-
tial Administration, 114 Harv. L. Rev. at 2275.
The Brownlow Committee “drafted a blueprint for an administrative
staff agency, which [it] labeled the Executive Office.” Hobbs, Plans for
Presidential Staffing, 21 L. & Contemp. Probs. at 674. The Committee’s
final report recommended that Congress “[e]xpand the White House
staff so that the President may have a sufficient group of able assistants
in his own office to keep him in closer and easier touch with the wide-
spread affairs of administration and to make a speedier clearance of the
knowledge needed for executive decision.” Brownlow Report at 46.
Stressing the urgent need for reform, the Committee included in its
report a warning: “The President needs help. His immediate staff assis-
tance is entirely inadequate.” Id. at 5. 3
President Roosevelt strongly endorsed the Committee’s recommenda-
tions. He stated that “[t]he plain fact is that the present organization and
equipment of the Executive Branch of the Government defeat the Consti-
tutional intent that there be a single responsible Chief Executive to coor-
dinate and manage the departments and activities in accordance with the
laws enacted by the Congress.” A Recommendation for Legislation to
Reorganize the Executive Branch of the Government (Jan. 12, 1937),
5 Pub. Papers of Pres. Franklin D. Roosevelt 668, 670 (1938).
3 Louis Brownlow later recounted that the EOP’s mission as contemplated by his
Committee was to ensure that the President could “control the policies of his departments,
while leaving to the head of each department the decisions which are peculiar to its
activity and the work incidental thereto.” Louis Brownlow, The Executive Office of the
President: A General View, 1 Pub. Admin. Rev. 101, 104 (1941).
6
Congressional Oversight of the White House
Congress authorized President Roosevelt to establish the EOP under the
Reorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561; soon there-
after, he issued Reorganization Plan No. 1, which became effective in July
1939, 4 Fed. Reg. 2727, 53 Stat. 1423. President Roosevelt implemented
the reorganization plan by executive order, organizing the EOP into five
divisions, each charged with a distinct mission. Notably, the White House
Office would “serve the President in an intimate capacity in the perfor-
mance of the many detailed activities incident to his immediate office.”
Exec. Order No. 8248, 4 Fed. Reg. 3864, 3864 (Sept. 8, 1939). The Order
provided that presidential assistants would hold “no authority over anyone
in any department or agency” and should “[i]n no event . . . be interposed
between the President and the head of any department or agency.” Id.EOP officials soon came to take a leading role in developing and coor-
dinating policy recommendations for the President. Within its first dec-
ade, the EOP expanded to include entities specifically created for those
purposes. The Council of Economic Advisers, for example, was estab-
lished in the EOP in 1946 to “analyze and interpret economic develop-
ments” and “formulate and recommend national economic policy to
promote full employment, production, and purchasing power under free
competitive enterprise.” Employment Act of 1946, Pub. L. No. 79-304,
§ 4(a), 60 Stat. 23, 24. A year later, the National Security Council was
created to “advise the President with respect to the integration of domes-
tic, foreign, and military policies relating to the national security so as to
enable the military services and the other departments and agencies of the
Government to cooperate more effectively in matters involving the na-
tional security.” National Security Act of 1947, Pub. L. No. 80-253,
§ 101(a), 61 Stat. 495, 496. 4 By the end of the Truman Administration,
the EOP had grown to eleven principal units. Harold C. Relyea, Cong.
Research Serv., 98-606 GOV, The Executive Office of the President: An
Historical Overview 9 (updated Nov. 26, 2008).
As the White House developed as an organization, all three branches of
government recognized that it should be viewed differently from the
departments and agencies of the Executive Branch. With respect to con-
gressional oversight specifically, in the 1970s Assistant Attorneys General
4 The National Security Council formally became an EOP component upon the adop-
tion of Reorganization Plan No. 4 of 1949, 63 Stat. 1067.
7
45 Op. O.L.C. __ (Jan. 8, 2021)
William Rehnquist and Antonin Scalia, among others, recognized that the
President’s immediate White House advisers must be treated differently
from officials of the departments and agencies when Congress seeks their
testimony. See Memorandum for John D. Ehrlichman, Assistant to the
President for Domestic Affairs, from William H. Rehnquist, Assistant
Attorney General, Office of Legal Counsel, Re: Power of Congressional
Committee to Compel Appearance or Testimony of “White House Staff ”
(Feb. 5, 1971); Letter for Phillip E. Areeda, Counsel to the President,
from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel
(Sept. 25, 1974); see also infra Part IV.B.
Congress and the federal courts similarly recognized the need to treat
the President’s inner circle of advisers differently under other federal
laws. “Article II not only gives the President the ability to consult with his
advisers confidentially, but also, as a corollary, it gives him the flexibility
to organize his advisers and seek advice from them as he wishes.” Ass’n
of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C.
Cir. 1993). Thus, although the Freedom of Information Act (“FOIA”) by
its terms applies to the EOP, 5 U.S.C. § 552(f )(1), the Supreme Court
held that Congress did not include “‘the President’s immediate personal
staff or units in the Executive Office whose sole function is to advise and
assist the President.’” Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 156 (1980) (quoting H.R. Rep. 93-1380, at 15 (1974)
(Conf. Rep.)). Federal courts have accordingly limited FOIA to exclude
various EOP components, making this determination by considering “how
close operationally the [component] is to the President, what the nature of
its delegation from the President is, and whether it has a self-contained
structure.” Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993); see also,
e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir.
2013) (holding that Secret Service logs of visitors to such advise-and-
assist EOP offices are not “agency records” for purposes of FOIA).
Congress similarly recognized that the President should have plenary
discretion when it comes to hiring, paying, and organizing certain White
House staff. In 1978, Congress authorized the President “to appoint and
fix the pay of employees in the White House Office without regard to any
other provision of law.” Pub. L. No. 95-570, 92 Stat. 2445, 2445 (codified
at 3 U.S.C. § 105(a)). As this Office later observed, that statute “reflect[s]
Congress’s judgment that the President should have complete discretion
8
Congressional Oversight of the White House
in hiring staff with whom he interacts on a continuing basis.” Applicabil-
ity of the Presidential Records Act to the White House Usher’s Office, 31
Op. O.L.C. 194, 197 (2007). As in the FOIA context, Congress thus
viewed the advise-and-assist components of the White House as not only
different from the departments and agencies, but also different from the
other components of the EOP. See Citizens for Responsibility & Ethics in
Wash. v. Office of Admin., 566 F.3d 219, 223 (D.C. Cir. 2009). Congress
has continued to recognize that distinction up to the present day. See, e.g.,
Presidential and Federal Records Act Amendments of 2014, Pub. L. No.
113-187, § 2(e), 128 Stat. 2003, 2006–07 (codified at 44 U.S.C. § 2209)
(prohibiting “the immediate staff of the President” and any “unit or indi-
vidual of the Executive Office of the President whose function is to advise
and assist the President” from sending presidential records using non-
official electronic message accounts).
The White House continues to play a unique role in the Executive
Branch, providing the President with close and confidential advice and
assistance on a daily basis. The White House acts as the President’s
primary information-gathering and policy-development arm, and serves as
“something of a central nervous system of the executive branch. . . . [It] is
a ‘force multiplier.’ Without it, the President would be greatly weakened
in his struggle to instantiate his preferences within the executive branch.”
Saikrishna B. Prakash, Fragmented Features of the Constitution’s Unitary
Executive, 45 Willamette L. Rev. 701, 714, 716 (2009). This memoran-
dum opinion’s remaining Parts explain how the White House’s special
status affects congressional oversight.
II. Scope of Congressional Oversight Authority
Although “Congress has no enumerated constitutional power to conduct
investigations or issue subpoenas,” each House has implied authority to
secure the information “needed” to legislate. Mazars, 140 S. Ct. at 2031
(internal quotation marks omitted); McGrain v. Daugherty, 273 U.S. 135,
160–61 (1927). Each House may “make investigations and exact testimo-
ny, to the end that it may exercise its legislative function advisedly and
effectively.” McGrain, 273 U.S. at 161; see also Scope of Congressional
Oversight and Investigative Power with Respect to the Executive Branch,
9 Op. O.L.C. 60, 60 (1985) (“Scope of Congressional Oversight ”) (“It is
9
45 Op. O.L.C. __ (Jan. 8, 2021)
beyond dispute that Congress may conduct investigations in order to
obtain facts pertinent to possible legislation and in order to evaluate the
effectiveness of current laws.”). The House and Senate typically exercise
their investigative functions through delegations to committees, each of
which has jurisdiction over identified legislative subjects and agencies.
The investigative authority of each committee is bounded by its subject
matter jurisdiction, as identified by the rules and resolutions of the rele-
vant congressional chamber.
Congress’s authority to investigate in furtherance of its power to legis-
late has come to be known as its “oversight” authority, but that shorthand
term does not imply a general authority to review the actions of the Exec-
utive Branch. Congress may direct the departments and agencies through
the enactment of appropriate legislation, but the Constitution does not
otherwise confer on Congress or its committees an authority to “oversee”
or direct the Executive Branch in the conduct of its assigned duties and
responsibilities under Article II. Rather, because Congress enjoys an
implied power of investigation that “is ‘justified solely as an adjunct to
the legislative process,’ it is subject to several limitations.” Mazars, 140
S. Ct. at 2031 (quoting Watkins, 354 U.S. at 197). Two of these limita-
tions have particular significance for congressional oversight of the White
House. First, because a congressional oversight request “is valid only if it
is ‘related to, and in furtherance of, a legitimate task of the Congress,’” it
“must serve a ‘valid legislative purpose.’” Id. (quoting Watkins, 354 U.S.
at 187; Quinn v. United States, 349 U.S. 155, 161 (1955)). Second, and
relatedly, the scope of oversight authority is limited to subjects “on which
legislation could be had,” McGrain, 273 U.S. at 177, and therefore Con-
gress “cannot inquire into matters which are within the exclusive province
of one of the other branches of the Government,” Barenblatt v. United
States, 360 U.S. 109, 112 (1959), including any function committed
exclusively to the President by the Constitution. 5
5 Congressional oversight authority may encompass inquiries into the Executive
Branch’s use of appropriated funds with respect to statutory programs as well as inquiries
relevant to future appropriations. However, as Barenblatt makes clear, the fact that the
President or the federal courts may rely upon appropriated funds to carry out their activi-
ties does not mean that everything they do falls within the scope of the oversight authori-
ty. Otherwise, no matter would fall within the “exclusive province of one of the other
branches of the Government.” Barenblatt, 360 U.S. at 112. Rather, “[s]ince Congress may
10
Congressional Oversight of the White House
A. Legitimate Legislative Purpose
Congress may conduct investigations only for legitimate legislative
purposes. This Office has long counseled that “a threshold inquiry that
should be made [by the Executive] upon receipt of any congressional
request for information is whether the request is supported by any legiti-
mate legislative purpose.” Response to Congressional Requests for Infor-
mation Regarding Decisions Made Under the Independent Counsel Act,
10 Op. O.L.C. 68, 74 (1986) (“Independent Counsel Act Requests”). As
Assistant Attorney General William Barr explained, the Executive Branch
need only assess its “interest in keeping [requested] information confiden-
tial” after “it is established that Congress has a legitimate legislative pur-
pose for its oversight inquiry” in the first place. Congressional Requests
for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154
(1989) (“Congressional Requests”); see also Congressional Committee’s
Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f ), 43
Op. O.L.C. __, at *21 (June 13, 2019) (“President’s Tax Returns”) (reiter-
ating this position).
Because Congress may obtain information only where it will advance a
legitimate legislative purpose, the other branches of government must
review congressional information requests to ensure that they are not
motivated by an illegitimate purpose. As the Supreme Court recently
explained in Trump v. Mazars:
Congress has no “‘general’ power to inquire into private affairs and
compel disclosures,” [McGrain, 273 U.S.] at 173–174, and “there is
no congressional power to expose for the sake of exposure,” Wat-
kins, 354 U.S. at 200. “Investigations conducted solely for the per-
only investigate into those areas in which it may potentially legislate or appropriate, it
cannot inquire into matters which are within the [Executive’s] exclusive province[.]” Id.at 111–12 (emphasis added). Therefore, the limits placed on Congress when conducting
oversight pursuant to its general legislative power also apply to oversight conducted
pursuant to its appropriations authority. While Congress may, pursuant to its appropria-
tions authority, review manpower statistics and other non-substantive data regarding the
resources that Presidents historically invest in areas of exclusive executive authority,
Congress lacks the authority to inquire into the Executive’s substantive decision-making
in these areas.
11
45 Op. O.L.C. __ (Jan. 8, 2021)
sonal aggrandizement of the investigators or to ‘punish’ those inves-
tigated are indefensible.” Id. at 187.
140 S. Ct. at 2032; see also Branzburg v. Hayes, 408 U.S. 665, 699 –700
(1972) (a legislative committee “abuse[s] its proper function” when it
exposes for the sake of exposure). Without these limits, the Court cau-
tioned, “Congress could ‘exert an imperious controul’ over the Executive
Branch and aggrandize itself at the President’s expense[.]” Mazars, 140
S. Ct. at 2034 (quoting The Federalist No. 71, at 484 (Alexander Hamil-
ton) (Jacob E. Cooke ed., 1961)). 6
Although courts, in reviewing subpoenas directed at private parties,
have traditionally deferred to Congress’s perceptions of its need for the
information being sought, see, e.g., Barenblatt, 360 U.S. at 132, the
Supreme Court in Mazars suggested that such a deferential approach does
not extend to congressional subpoenas directed at the President’s personal
information because of the separation of powers principles at stake in any
such request, see 140 S. Ct. at 2031; see also id. at 2034–36. In such
cases, a court must “be attentive to the nature of the evidence offered by
Congress to establish that a subpoena advances a valid legislative pur-
pose”; “[t]he more detailed and substantial the evidence of Congress’s
legislative purpose, the better.” Id. at 2036. Moreover, “unless Congress
adequately identifies its aims and explains why the President’s infor-
mation will advance its consideration of the possible legislation,” it will
be “impossible to conclude that a subpoena is designed to advance a valid
legislative purpose.” Id. (internal quotation marks omitted); see also
Watkins, 354 U.S. at 201, 205–06 (reversing a contempt charge due to,
among other things, a “vague” and “broad” committee charter that ren-
dered it “impossible . . . to ascertain whether any legislative purpose
justifie[d] the disclosures sought and, if so, the importance of that infor-
mation to the Congress in furtherance of its legislative function”).
6 In the course of its oversight activities, Congress may “inquire into and publicize
corruption, maladministration or inefficiency in agencies of the Government.” Watkins,
354 U.S. at 200 n.33. It may not, however, conduct oversight solely for the purpose of
making information public. The Supreme Court has made clear that Congress “may only
investigate into those areas in which it may potentially legislate or appropriate,” Baren-
blatt, 360 U.S. at 111, and transmitting information “to inform the public . . . is not a part
of the legislative function,” Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979).
12
Congressional Oversight of the White House
The Supreme Court’s review in Mazars of a House committee’s pursuit
of the President’s financial information was consistent with how the
Executive Branch has reviewed similar requests from Congress directed at
the Executive Branch. Although the Executive Branch should seek to
accommodate legitimate requests for information concerning the depart-
ments and agencies, this Office has advised that such accommodation may
not be required where congressional committees’ requests appear to fall
outside their delegated legislative jurisdiction or lack a legitimate legisla-
tive purpose.
For instance, shortly before the Mazars decision, we concluded, based
on reasoning similar to Mazars, that a request from the House Ways and
Means Committee to the Department of the Treasury for the President’s
tax returns was not supported by a legitimate legislative purpose. Presi-
dent’s Tax Returns, 43 Op. O.L.C. __, at *3. Although the committee
sought records similar to those at issue in Mazars, the Chairman proffered
a different reason for the request, claiming that the committee sought to
evaluate the Internal Revenue Service’s practice of auditing Presidents’
tax returns. Id. at *2, *26–27. We advised that executive branch officials
were not obliged simply to accept the committee’s proffered legislative
purpose at face value, but instead must “examine the objective fit between
that purpose and the information sought, as well as any other evidence
that may bear upon the Committee’s true objective.” Id. at *17; see also
id. at *20 (noting the Executive Branch’s obligation to “confirm[] the
legitimacy of an investigative request,” especially “when deferring to the
request would effectively surrender the Executive’s obligations to a
Member of Congress”). In that case, the Chairman and other House lead-
ers had made numerous public statements suggesting that the request was
aimed at publicly exposing the President’s tax returns, so “[n]o one could
reasonably believe that the Committee [sought] six years of President
Trump’s tax returns because of a newly discovered interest in legislating
on the presidential-audit process.” Id. at *16–17. We also stressed that the
institutional reasons that have sometimes led courts to defer to Congress’s
stated legislative purpose in cases involving private parties do not apply
to the Executive Branch, “which operates as a politically accountable
check on the Legislative Branch.” Id. at *25. We concluded that the
Chairman’s stated legislative purpose for his request for the President’s
13
45 Op. O.L.C. __ (Jan. 8, 2021)
tax returns “blink[ed] reality” and was “pretextual,” id. at *16, and there-
fore was not legitimate.
This Office similarly questioned the legislative purpose underlying
three House committees’ joint request for documents related to American
foreign and defense policy with respect to Ukraine. There, the three com-
mittees had announced an investigation into the impeachment of the
President, even though the full House had not delegated any such investi-
gative jurisdiction to any of them. House Committees’ Authority to Inves-
tigate for Impeachment, 44 Op. O.L.C. __, at *47–49 (Jan. 19, 2020)
(“Authority to Investigate for Impeachment ”). In view of this basic legal
defect in the requests, see id., the committees supplemented them by
claiming that they fell within their “oversight and legislative jurisdiction.”
Id. at *8, *47 (internal quotation marks omitted).
We concluded that this attempt to justify the request did not establish a
legitimate legislative purpose, even though some of the requested materi-
als might well have fallen within the oversight jurisdiction of one or more
of the committees. The committee chairs had “made clear” in their official
correspondence “that the committees were interested in the requested
materials to support an investigation into the potential impeachment of the
President, not to uncover information necessary for potential legislation
within their respective areas of legislative jurisdiction.” Id. at *48. We
explained that “[t]he Executive Branch need not presume that [a legisla-
tive] purpose exists or accept a makeweight assertion of legislative juris-
diction.” Id. at *47 (internal quotation marks omitted). We thus found that
the committee chairmen were “seeking to do precisely what they said—
compel the production of information to further an impeachment inquiry.”
Id. at *48. The inquiry therefore was made not to advance a legitimate
legislative purpose, but instead to further an impeachment investigation
that had not been authorized at the time the subpoenas were issued. Id. at
*48–49.
We also emphasized the importance of committee jurisdiction, noting
that “[a] congressional committee’s ‘right to exact testimony and to call
for the production of documents’ is limited by the ‘controlling charter’ the
committee has received from the House.” Id. at *2 (quoting United States
v. Rumely, 345 U.S. 41, 44 (1953)); see also id. at *18–19 (discussing the
committee jurisdiction requirement in the oversight and impeachment
contexts); Watkins, 354 U.S. at 206 (“Plainly [the House’s] committees
14
Congressional Oversight of the White House
are restricted to the missions delegated to them . . . . No witness can be
compelled to make disclosures on matters outside that area.”).
We think that the separation of powers principles described in Mazars
and our recent opinions guide the appropriate approach to congressional
oversight requests directed at the White House, which inherently raise
separation of powers concerns. “[I]n assessing whether a subpoena di-
rected” at the White House “is related to, and in furtherance of, a legiti-
mate task of Congress,” the White House “must perform a careful analysis
that takes adequate account of the separation of powers principles at
stake, including both the significant legislative interests of Congress and
the unique position of the President.” Mazars, 140 S. Ct. at 2035 (internal
quotation marks omitted). Although Mazars addressed a subpoena that
sought the President’s personal financial information, there is no reason to
think that a lesser standard would apply to oversight requests directed at
the White House and its staff—requests that bear even more closely upon
interests of confidentiality and the autonomy of the Executive Branch.
The Court made clear that “congressional subpoenas for the President’s
information unavoidably pit the political branches against one another,”
id. at 2034, and therefore, all such requests necessarily raise separation of
powers concerns. See also id. at 2030 (describing certain congressional
requests for official documents as seeking “the President’s information”).
And the case for closely scrutinizing such requests is even stronger where
it is not, as in Mazars, a court that is evaluating the request, but instead
the Executive Branch during the constitutionally required accommodation
process—one purpose of which is to provide a process for the Executive
Branch to check an implied investigative power that otherwise has limited
counterweights. See President’s Tax Returns, 43 Op. O.L.C. __, at *25–
26; see also infra Part III.C (discussing the accommodation process).
In such instances, we have advised that Congress may be expected to
clearly articulate its legislative purpose, and the Executive Branch may
independently review the proffered purpose. In considering a committee’s
legislative purpose, the White House should “be attentive to the nature of
the evidence offered by Congress to establish that a subpoena advances a
valid legislative purpose.” Mazars, 140 S. Ct. at 2036. “The more detailed
and substantial the evidence of Congress’s legislative purpose, the better.”
Id. The White House may fairly expect that the committee will provide a
statement that “adequately identifies its aims and explains why the Presi-
15
45 Op. O.L.C. __ (Jan. 8, 2021)
dent’s information will advance its consideration of the possible legisla-
tion.” Id. In reviewing such a statement, the White House may take into
account all relevant facts and circumstances in ensuring that the congres-
sional request serves a legitimate legislative purpose within the appropri-
ate authority of the requesting committee.
B. Exclusive Executive Functions
Because congressional requests for information must “concern[] a sub-
ject on which legislation could be had,” U.S. Servicemen’s Fund, 421 U.S.
at 506 (internal quotation marks omitted), Congress may not conduct
oversight of the President’s discharge of his exclusive constitutional
authority. “Since Congress may only investigate into those areas in which
it may potentially legislate or appropriate, it cannot inquire into matters
which are within the exclusive province of one of the other branches of
the Government.” Barenblatt, 360 U.S. at 111−12; see also Scope of
Congressional Oversight, 9 Op. O.L.C. at 62 (congressional oversight
authority does not extend to “functions fall[ing] within the Executive’s
exclusive domain”). Congressional requests to the White House often run
into this limitation to the extent they are directed at the President’s exer-
cise of his constitutional, rather than statutory, authorities.
This Office has observed that “[t]he Constitution assigns a variety of
powers exclusively to the President” and “Congress may not intrude upon
the President’s exercise of [those] exclusive powers.” Letter for Andrew
Fois, Assistant Attorney General, Office of Legislative Affairs, from Ran-
dolph D. Moss, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Inspector General for the Executive Office of the President
at 3 (July 24, 1996) (advising that proposed legislation to establish an
inspector general for the EOP raised serious constitutional concerns). As
we explained, “where the President is exercising, or has exercised, exclu-
sive constitutional authority, Congress is wholly without authority to
impose [disclosure] requirements on the President or the President’s
advisors.” Id. Because Congress may not legislate with respect to the
President’s discharge of his exclusive constitutional functions, it similarly
may not seek information from White House staff concerning the deci-
sion-making process in connection with the President’s performance of
those functions in particular matters.
16
Congressional Oversight of the White House
Attorney General Janet Reno drew this line in advising President Clin-
ton with respect to a congressional subpoena seeking predecisional docu-
ments relating to a grant of clemency. The President’s clemency decision,
which is rooted in the pardon power, is a quintessential example of an
exclusive executive power. See Schick v. Reed, 419 U.S. 256, 266 (1974)
(the pardon power “flows from the Constitution . . . and . . . cannot be
modified, abridged, or diminished by the Congress”). Attorney General
Reno advised that Congress lacked the authority to subpoena the docu-
ments in question, because “[t]he granting of clemency pursuant to the
pardon power is unquestionably an exclusive province of the executive
branch,” and thus “[a] compelling argument can be made . . . that Con-
gress has no authority whatsoever to review a President’s clemency deci-
sion.” Clemency Decision, 23 Op. O.L.C. at 2. 7 Consistent with this
conclusion, she explained, “it appears that Congress’ oversight authority
does not extend to the process employed in connection with a particular
clemency decision, to the materials generated or the discussions that took
place as part of that process, or to the advice or views the President re-
ceived in connection with a clemency decision.” Id. at 3–4. 8
In 2007, Acting Attorney General Paul Clement cited the President’s
exclusive constitutional powers in advising President Bush regarding an
assertion of executive privilege with respect to internal White House
communications concerning the possible exercise of the President’s
7 As a formal matter, the President asserted executive privilege in declining to provide
the subpoenaed documents, which related to the deliberations over the President’s grant of
clemency to sixteen members of the FALN terrorist group. Letter for Dan Burton, Chair-
man, Committee on Government Reform, U.S. House of Representatives, from Cheryl
Mills, Deputy Counsel to the President at 1 (Sept. 16, 1999) (relying on the “vital public
interest in assuring that the President receives candid advice from his advisors”). But the
White House Counsel’s Office also raised the jurisdictional issue in objecting to the
subpoena, stating that “[p]ursuant to the Constitution and the separation of powers
doctrine, the President’s authority to grant clemency is not subject to legislative over-
sight.” Id.
8 This position also served as the basis for the Justice Department’s refusal the next
year to answer certain questions posed by the House Judiciary Committee regarding a
pending clemency petition. See Letter for Henry J. Hyde, Chairman, Committee on
Judiciary, U.S. House of Representatives, from Robert Raben, Assistant Attorney Gen-
eral, Office of Legislative Affairs at 2 (June 21, 2000) (“[B]ecause Congress cannot
legislate regarding the process by which the Department assists the President on clemency
matters, Congress’ oversight authority does not extend to that process.”).
17
45 Op. O.L.C. __ (Jan. 8, 2021)
exclusive authority to nominate and to dismiss U.S. Attorneys: “[T]here is
reason to question whether Congress has oversight authority to investigate
deliberations by White House officials concerning proposals to dismiss
and replace U.S. Attorneys, because such deliberations necessarily relate
to the potential exercise by the President of an authority assigned to him
alone.” Assertion of Executive Privilege Concerning the Dismissal and
Replacement of U.S. Attorneys, 31 Op. O.L.C. 1, 3 (2007). As Acting
Attorney General Clement explained:
The Senate has the authority to approve or reject the appointment of
officers whose appointment by law requires the advice and consent
of the Senate (which has been the case for U.S. Attorneys since the
founding of the Republic), but it is for the President to decide whom
to nominate to such positions and whether to remove such officers
once appointed. Though the President traditionally consults with
members of Congress about the selection of potential U.S. Attorney
nominees as a matter of courtesy or in an effort to secure their con-
firmation, that does not confer upon Congress authority to inquire in-
to the deliberations of the President with respect to the exercise of
his power to remove or nominate a U.S. Attorney.
Id.This principle limiting the scope of Congress’s oversight authority is
consistent with the Supreme Court’s refusal to tolerate legislation that
intrudes on the President’s exclusive constitutional powers and duties.
Where the Constitution’s text commits a power to the President exclusive-
ly, courts “refuse[] to tolerate any intrusion by the Legislative Branch.”
Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J.,
concurring in the judgment, joined by Rehnquist, C.J., and O’Connor, J.);
see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165–66 (1803) (“By
the constitution of the United States, the President is invested with certain
important political powers, in the exercise of which he is to use his own
discretion, and is accountable only to his country in his political character,
and to his own conscience.”).
The President’s exclusive powers include the powers to pardon, to sign
or veto legislation, to nominate and appoint officers of the United States,
and to remove officers and other officials. See Schick, 419 U.S. at 266;
INS v. Chadha, 462 U.S. 919, 946–48, 957–59 (1983) (holding the legisla-
18
Congressional Oversight of the White House
tive veto an unconstitutional interference with President’s duties pursuant
to the Presentment Clause); Buckley v. Valeo, 424 U.S. 1, 138–39 (1976)
(per curiam) (“Congress’ power under [the Necessary and Proper] Clause
is inevitably bounded by the express language of [the Appointments
Clause],” and consequently Congress cannot provide for the appointment
of “‘Officers of the United States’” except through a procedure that
“comports with” the Appointments Clause); Myers, 272 U.S. at 161 (“The
authority of Congress given by the excepting clause to vest the appoint-
ment of such inferior officers in the heads of departments” does not “ena-
ble[] Congress to draw to itself, or to either branch of it, the power to
remove or the right to participate in the exercise of that power. To do this
would be . . . to infringe the constitutional principle of the separation of
governmental powers.”). Thus, while Congress may request information
pertaining to the broad range of matters about which it may legislate, that
authority does not extend to authorities exclusively vested in the Presi-
dent, including the work that the White House staff does in advising and
assisting the President in connection with the execution of those constitu-
tional authorities.
The President’s exclusive authorities also include his powers in the area
of diplomacy and national defense, although in many cases those powers
closely abut areas in which Congress may legislate. The Constitution
entrusts the President with the “‘vast share of responsibility for the con-
duct of our foreign relations.’” Am. Ins. Ass’n v. Garamendi, 539 U.S.
396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 610 (1952) (Frankfurter, J., concurring)). And that responsibil-
ity includes the “exclusive authority to conduct diplomacy on behalf of
the United States.” Congressionally Mandated Notice Period for With-
drawing from the Open Skies Treaty, 44 Op. O.L.C. __, at *11 (Sept. 22,
2020) (internal quotation marks omitted); see also Prohibition of Spend-
ing for Engagement of the Office of Science and Technology Policy with
China, 35 Op. O.L.C. 116, 121 (2011) (recognizing the President’s “ex-
clusive authority to determine the time, scope, and objectives of interna-
tional negotiations” (internal quotation marks omitted)). The President’s
authority as Commander in Chief and Chief Executive also includes broad
authority over the deployment and control of the military in protecting
American persons and interests abroad. See, e.g., Training of British
Flying Students in the United States, 40 Op. Att’y Gen. 58, 61–62 (1941)
19
45 Op. O.L.C. __ (Jan. 8, 2021)
(Jackson, Att’y Gen.); Placing of United States Armed Forces Under
United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 185
(1996) (“It is for the President alone, as Commander-in-Chief, to make
the choice of the particular personnel who are to exercise operational and
tactical command functions over the U.S. Armed Forces.”); Relation of
the President to the Executive Departments, 7 Op. Att’y Gen. 453, 465
(1855) (Cushing, Att’y Gen.) (because the President “alone” is the “su-
preme commander-in-chief,” Congress cannot “authorize or create any
military officer not subordinate to the President”). The Executive Branch
has consistently asserted the President’s exclusive authority in these areas,
and the Supreme Court has endorsed those principles. 9
At the same time, Congress also has overlapping authority to legislate
in matters touching upon foreign affairs and the national defense. Con-
gress “clearly possesses significant Article I powers in the area of foreign
affairs, including with respect to questions of war and neutrality, com-
merce and trade with other nations, foreign aid, and immigration.” Legis-
lation Prohibiting Spending for Delegations to U.N. Agencies Chaired by
Countries That Support International Terrorism, 33 Op. O.L.C. 221, 225–
26 (2009). Congress established and is responsible for funding the De-
partment of State and the Department of Defense—two departments that
the President relies upon in the discharge of his constitutional powers—
and Congress also has express legislative authority under Article I, Sec-
tion 8, with respect to foreign trade; the raising, supporting, and regula-
tion of the armed forces; and the declaration of war, among other powers.
Congress’s legislative authority in these areas provides a basis for seeking
information in connection with these areas, and such oversight requests
may sometimes reach the White House.
9 See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (“[J]udicial
precedent and historical practice teach that it is for the President alone to make the
specific decision of what foreign power he will recognize as legitimate[.]”); Harlow v.
Fitzgerald, 457 U.S. 800, 812 n.19 (1982) (conducting foreign relations and ensuring the
Nation’s defense are “central Presidential domains” (internal quotation marks omitted));
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring in judgment,
joined by Wayne, Swayne, and Miller, JJ.) (Congress has no authority to “interfere[] with
the command of the forces and the conduct of campaigns” because “[t]hat power and duty
belong to the President as commander-in-chief”); In re Hennen, 38 U.S. (13 Pet.) 230,
235 (1839) (“As the executive magistrate of the country, [the President] is the only
functionary intrusted with the foreign relations of the nation.”).
20
Congressional Oversight of the White House
We have previously advised on these areas of exclusive and overlap-
ping authority in connection with congressional oversight requests related
to the protection of classified information. The Supreme Court has ex-
plained that the President may “classify and control access to information
bearing on national security and . . . determine whether an individual is
sufficiently trustworthy to occupy a position in the Executive Branch that
will give that person access to such information[.]” Dep’t of the Navy v.
Egan, 484 U.S. 518, 527 (1988). This exclusive power primarily derives
from his constitutional authority as “‘Commander in Chief of the Army
and Navy of the United States,’” id. (quoting U.S. Const. art. II, § 2,
cl. 1), and “exists quite apart from any explicit congressional grant,” id.
Although Congress does not “entirely lack[] authority to legislate in a
manner that touches upon disclosure of classified information,” it cannot
intrude—through legislation or oversight—upon the President’s control
over national security information. Security Clearance Adjudications by
the DOJ Access Review Committee, 35 Op. O.L.C. 86, 95–96 (2011); see
The Department of Defense’s Authority to Conduct Background Investiga-
tions for Its Personnel, 42 Op. O.L.C. __, at *9 (Feb. 7, 2018) (“while
Congress is not entirely disabled from participating in the system for
protecting classified information, Congress may not impair the President’s
control over national security information”).
In summary, because Congress’s oversight authority extends only to
those subjects “on which legislation could be had,” McGrain, 273 U.S. at
177, the Executive Branch may properly review an oversight request
directed at the White House to evaluate whether the request is directed at
the discharge of an exclusive constitutional authority of the President or
instead concerns a subject about which Congress may legislate.
III. Constitutional Limits on
Congressional Oversight of the White House
Even when a congressional inquiry advances a legitimate legislative
purpose, the separation of powers imposes other constraints on oversight
of the White House. The accommodation process requires that “each
branch . . . take cognizance of an implicit constitutional mandate to seek
optimal accommodation through a realistic evaluation of the needs of the
conflicting branches in the particular fact situation.” United States v. Am.
21
45 Op. O.L.C. __ (Jan. 8, 2021)
Tel. & Tel. Co. (“AT&T ”), 567 F.2d 121, 127 (D.C. Cir. 1977). As dis-
cussed below, the President’s strong interests in the independence and
autonomy of his office, as well as the confidentiality of his communica-
tions, justify corresponding restrictions on oversight of the White House.
Congressional requests for information from the White House are con-
strained by “the Executive Branch’s interests in maintaining the autonomy
of [the] office [of the President] and safeguarding the confidentiality of its
communications.” Cheney, 542 U.S. at 385. In addition, oversight di-
rected at the White House implicates heightened executive branch confi-
dentiality interests, which are particularly strong with respect to White
House communications. Accordingly, when oversight involves the White
House, congressional committees and the White House must work to
respect these constraints while accommodating the committees’ legitimate
information needs. These considerations mean that oversight requests
directed to the White House are typically the exception, rather than the
norm. Congress should generally seek information from the departments
and agencies first before turning to the White House, and oversight re-
quests to the White House must be tailored to accommodate the Presi-
dent’s need for autonomy and confidentiality.
A. Separation of Powers Principles
The President is the head of a co-equal branch of government. Congress
and the President thus “have an ongoing institutional relationship as the
‘opposite and rival’ political branches established by the Constitution.”
Mazars, 140 S. Ct. at 2033–34 (quoting The Federalist No. 51, at 349
(James Madison)). Consequently, congressional requests for information
directed at the President and the White House are not “run-of-the-mill
legislative effort[s]” and “differ markedly from” congressional requests
directed toward others. Id. at 2034. The “significant separation of powers
issues” raised by such requests “necessarily inform[]” the scope of and
manner in which Congress may request such information. Id. at 2026,
2033. If Congress could freely demand the President’s information, it
would “‘exert an imperious controul’ over the Executive Branch and
aggrandize itself at the President’s expense, just as the Framers feared.”
Id. at 2034 (quoting The Federalist No. 71, at 484). In the same way that
the President must respect Congress’s institutional prerogatives, Congress
22
Congressional Oversight of the White House
too must conduct oversight mindful of the independence and autonomy of
the office of the President.
Although the Supreme Court’s opinion in Mazars discussed these prin-
ciples in the context of congressional requests for the President’s personal
information, these separation of powers concerns also apply to requests
for information from White House advisers, who assist the President “on a
daily basis in the formulation of executive policy and resolution of mat-
ters affecting the military, foreign affairs, and national security and other
aspects of his discharge of his constitutional responsibilities.” Testimonial
Immunity Before Congress of the Former Counsel to the President, 43 Op.
O.L.C. __, at *5 (May 20, 2019) (“Immunity of the Former Counsel ”)
(internal quotation marks omitted).
The Supreme Court recognized as much in Cheney, which addressed
the special consideration owed to the White House in connection with
demands for information made in a civil action. The Court held that the
Judicial Branch must treat civil discovery requests directed at the Presi-
dent’s senior advisers differently from discovery matters involving other
executive branch personnel:
This is not a routine discovery dispute. The discovery requests are
directed to the Vice President and other senior Government officials
who . . . give advice and make recommendations to the President.
The Executive Branch, at its highest level, is seeking the aid of the
courts to protect its constitutional prerogatives. . . . [S]pecial consid-
erations control when the Executive Branch’s interests in maintain-
ing the autonomy of its office and safeguarding the confidentiality of
its communications are implicated. This Court has held, on more
than one occasion, that “[t]he high respect that is owed to the office
of the Chief Executive . . . is a matter that should inform the conduct
of the entire proceeding, including the timing and scope of discov-
ery,” and that the Executive’s “constitutional responsibilities and
status [are] factors counseling judicial deference and restraint” in the
conduct of litigation against it.
542 U.S. at 385 (citations omitted). While the purposes of congressional
oversight and civil discovery are distinct, both involve requests from
outside the Executive Branch. Just as separation of powers principles
require the Judicial Branch to adjust the “timing and scope of discovery”
23
45 Op. O.L.C. __ (Jan. 8, 2021)
directed at presidential advisers in civil litigation, congressional commit-
tees and White House personnel also must tailor the timing and scope of
their oversight accommodations in ways that respect the President’s
interests in autonomy and confidentiality.
In Cheney, the Supreme Court reviewed the D.C. Circuit’s denial of the
Vice President’s petition for a writ of mandamus vacating certain discov-
ery orders issued by a district court. The plaintiffs had sued the Vice
President and others alleging that the President’s National Energy Policy
Development Group had not complied with the disclosure requirements of
the Federal Advisory Committee Act, 5 U.S.C. app. §§ 1–15. The district
court ordered the plaintiffs to “submit a proposed discovery plan” for the
court’s approval. Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,
219 F. Supp. 2d 20, 56 (D.D.C. 2002). Under the Federal Rules of Civil
Procedure, a litigant “may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b)(1). Pursuant to this broad standard governing civil discovery, the
plaintiffs in Cheney proposed a wide-ranging discovery plan, which called
for the production of all documents and information concerning commu-
nications between individual National Energy Policy Development Group
members outside the context of group meetings, between members and
agency personnel, and between members and non-governmental individu-
als. The plaintiffs tried to use discovery to uncover confidential infor-
mation concerning the deliberations of the President’s closest advisers.
The Government objected to the plan to the extent that it sought docu-
ments from the Vice President and White House officials and argued,
among other things, “that in order to protect the separation of powers, the
President should not be forced to consider the [executive] privilege ques-
tion in response to unnecessarily broad or otherwise improper discovery.”
See In re Cheney, 334 F.3d 1096, 1105 (D.C. Cir. 2003) (internal quota-
tion marks omitted).
The district court nonetheless approved the discovery plan and directed
that the Vice President and White House officials either “fully comply
with” the discovery requests, “file detailed and precise objections to
particular requests,” or “identify and explain their invocations of privilege
with particularity.” Id. at 1000 (internal quotation marks omitted). The
Vice President petitioned the D.C. Circuit for a writ of mandamus vacat-
ing the discovery orders on the ground that the broad requests violated the
24
Congressional Oversight of the White House
separation of powers by unduly interfering with the President’s constitu-
tional prerogatives, but the D.C. Circuit denied the petition. See id. at
1109.
The Supreme Court reversed and remanded for the D.C. Circuit to con-
sider whether the discovery orders “constituted an unwarranted impair-
ment of another branch in the performance of its constitutional duties.”
Cheney, 542 U.S. at 390. In so holding, the Court rejected the lower
courts’ view that executive branch interests could have been adequately
protected by “invoking executive privilege and filing objections to the
discovery orders with ‘detailed precision.’” Id. at 377 (quoting In re
Cheney, 334 F.3d at 1105). The Court explained that “special considera-
tions control” when White House staff and other high-level officials are
the subject of civil discovery requests, and that separation of powers
concerns might necessitate narrowing or denying requests for information
directed to such officials before there should arise any need to consider
invoking executive privilege. See id. at 385, 390. Because the information
“requests [were] directed to the Vice President and other senior Govern-
ment officials who served on the [Group] to give advice and make rec-
ommendations to the President,” the broad discovery orders threatened to
impinge on the Executive’s “interests in maintaining the autonomy of its
office and safeguarding the confidentiality of its communications.” Id. at
385. Therefore, the D.C. Circuit was obliged to consider whether allowing
the requests to go forward would be “an unwarranted impairment” of the
Executive Branch’s discharge of its constitutional responsibilities. Id. at
390.
The Court’s reasoning in Cheney, which instructs courts to consider the
President’s interests in autonomy and confidentiality when fashioning
orders authorizing civil discovery directed at the White House, applies
with at least equal force to congressional oversight requests for infor-
mation from the White House. Both congressional oversight and civil
litigation often concern wide-ranging information requests that involve
the production of documents and the taking of testimony. Just as civil
litigation against the “Vice President and other senior Government offi-
cials who . . . give advice and make recommendations to the President”
does not entail “a routine discovery dispute,” neither may congressional
oversight of the White House be viewed as comparable to routine over-
sight of executive branch agencies. Cf. Immunity of the Former Counsel,
25
45 Op. O.L.C. __ (Jan. 8, 2021)
43 Op. O.L.C. __, at *4 (“[T]he President’s immediate advisers are consti-
tutionally distinct from the heads of executive departments and agen-
cies.”). In both situations, far-reaching inquiries threaten presidential
autonomy and confidentiality. Thus, the separation of powers concerns
recognized in Cheney support significant limitations on the timing and
scope of congressional oversight inquiries directed to the White House.
If anything, the concerns underlying the Court’s decision in Cheney
apply with even greater force to congressional inquiries. Congress is the
President’s constitutional “rival” in a manner distinct from the Judiciary.
Mazars, 140 S. Ct. at 2033 (internal quotation marks omitted). When
Congress conducts oversight, a neutral decision-maker is not readily
available to appropriately balance each party’s interests. And unlike the
courts’ express authority to order discovery, Congress’s subpoena power
is an implied adjunct to its legislative powers that is justified as “an
essential and appropriate auxiliary to the legislative function.” Id. at 2031
(quoting McGrain, 273 U.S. 174); cf. Nat’l Fed’n of Indep. Bus. v. Sebe-
lius, 567 U.S. 519, 559 (2012) (opinion of Roberts, C.J.) (implied powers
under the Necessary and Proper Clause are “incidental” and cannot be
“great substantive and independent powers” (internal quotation marks
omitted)). A plaintiff in a civil action, moreover, may well have a greater
need for documents and other information than a congressional committee
conducting oversight. Congressional oversight gathers information so that
Congress may “exercise its legislative function advisedly and effectively,”
McGrain, 273 U.S. at 161; see also Mazars, 140 S. Ct. at 2031–32, while
the purpose of civil discovery is to disclose “the basic issues and facts” to
“the fullest practicable extent,” United States v. Procter & Gamble Co.,
356 U.S. 677, 682 (1958). As the D.C. Circuit thus has recognized, “legis-
lative judgments normally depend more on the predicted consequences of
proposed legislative actions and their political acceptability[] than on
precise reconstruction of past events.” Senate Select Comm. on Presiden-
tial Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en
banc). “[E]fforts to craft legislation involve predictive policy judgments
that are not hampered in quite the same way when every scrap of poten-
tially relevant evidence is not available [to Congress].” Mazars, 140 S. Ct.
at 2036 (alterations and internal quotation marks omitted).
Furthermore, because Congress may not conduct oversight of the Presi-
dent’s exclusive constitutional functions, legitimate congressional over-
26
Congressional Oversight of the White House
sight inquiries will almost always pertain to executive branch implemen-
tation of statutory programs. But the departments and agencies, not the
White House, principally administer such programs, and thus it is general-
ly unnecessary for congressional committees to request information
directly from the White House unless they are unable to obtain the infor-
mation from agencies. As Mazars determined with respect to the Presi-
dent’s personal information, to avoid unnecessary confrontation between
the branches, “Congress may not rely on the President’s information if
other sources could reasonably provide Congress the information it
needs.” Id. at 2035–36. That reasoning also applies to congressional
requests for White House information. Because congressional oversight
needs generally may be satisfied through requests to the departments and
agencies, requests for information about programs administered outside
the White House should be directed there in the first instance.
Mazars and Cheney are the latest in a line of judicial precedent recog-
nizing the separation of powers concerns underlying litigation or related
requests directed at the President. But the Supreme Court has long recog-
nized that safeguarding presidential autonomy and confidentiality is
critical to honoring the separation of powers. See Cheney, 542 U.S. at
385. This principle was first articulated in United States v. Burr, where
Chief Justice John Marshall, sitting at trial as a Circuit Justice, stated that
“[i]n no case of this kind would a court be required to proceed against the
president as against an ordinary individual.” 25 F. Cas. 187, 192 (C.C. Va.
1807) (No. 14,694). In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the
Court held that a sitting or former President is absolutely immune from
civil actions for damages arising from his official acts. Underlying this
bright-line rule is the rationale that “[b]ecause of the singular importance
of the President’s duties, diversion of his energies . . . would raise unique
risks to the effective functioning of government.” Id. at 751. 10 The Presi-
10 The Supreme Court has held that presidential aides are generally treated differently
from the President for purposes of immunity in civil litigation, receiving qualified im-
munity rather than absolute immunity. Harlow, 457 U.S. at 809. But see id. at 812 & n.19
(acknowledging that “[f ]or aides entrusted with discretionary authority in such sensitive
areas as national security or foreign policy, absolute immunity might well be justified to
protect the unhesitating performance of functions vital to the national interest”). Yet that
distinction is entirely consistent with Cheney’s holding that “special considerations” apply
to civil discovery requests directed to White House officials and others who “give advice
27
45 Op. O.L.C. __ (Jan. 8, 2021)
dent’s energies may be inappropriately diverted by congressional over-
sight just as they may be by private litigation. See Immunity of the Former
Counsel, 43 Op. O.L.C. __, at *5 (explaining that permitting congression-
al committees to compel the President’s immediate advisers to testify
would allow the committees to “harass those advisers in an effort to
influence their conduct, retaliate for actions the committee disliked, or
embarrass and weaken the President for partisan gain” and would force
the advisers “to divert time and attention from their duties to the Presi-
dent” (internal quotation marks omitted)).
In the oversight context, the President’s interest in the White House’s
autonomy may be compromised not only by congressional inquiries that
distract personnel and drain critical resources, but also by the potential
“chilling effect” such demands would have on the interactions between
the President and his advisers. See Testimonial Immunity Before Congress
of the Assistant to the President and Senior Counselor to the President,
43 Op. O.L.C. __, at *2 (July 12, 2019) (“Congressional questioning of
the President’s senior advisers would . . . undermine the independence and
candor of executive branch deliberations.”). Intrusive congressional over-
sight of the White House’s interaction with departments and agencies may
cause White House staff members to conform their information-gathering
and policy-formulation processes to the demands of Congress instead of
the needs of the President. Yet the President needs his staff to provide him
with frank and candid judgments to “accomplish[] [his] constitutionally
assigned functions.” Nixon v. Adm’r of Gen. Servs., 433 U.S. at 443.
There is little doubt that intrusive oversight inquiries could chill and
otherwise undermine these kinds of White House staff activities. See
Scope of Congressional Oversight, 9 Op. O.L.C. at 62 (“Congress’ power
of inquiry must not be permitted to negate the President’s constitutional
and make recommendations to the President.” 542 U.S. at 385. As we have explained in
declining to apply Harlow to narrow the traditional constraints governing the congres-
sional testimony of senior presidential advisers, “the prospect of compelled congressional
testimony raises separation of powers concerns that are not present in a civil damages
lawsuit brought by a private party.” Immunity of the Former Counsel, 43 Op. O.L.C. __,
at *13. Compelled congressional testimony “threatens to subject presidential advisers to
coercion and harassment, create a heightened impression of presidential subordination to
Congress, and cause public disclosure of confidential presidential communications in a
way that the careful development of evidence through a judicially monitored [proceeding]
does not.” Id. (internal quotation marks omitted).
28
Congressional Oversight of the White House
responsibility for managing and controlling affairs committed to the
Executive Branch.”).
Closely related to the President’s interest in securing the White House’s
autonomy is his interest in “safeguarding the confidentiality of its com-
munications.” Cheney, 542 U.S. at 385. The Supreme Court has made
clear that the President’s interest in the confidentiality of his decision-
making is a central component of the constitutional separation of powers.
In United States v. Nixon, the Court stressed that “[a] President and those
who assist him must be free to explore alternatives in the process of
shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately.” 418 U.S. 683, 708 (1974).
Although Nixon concerned a judicial demand for documents protected by
executive privilege, this Office has long expressed the view that “[the]
reasons for the constitutional privilege have at least as much force when it
is Congress, instead of a court, that is seeking information.” Congression-
al Requests, 13 Op. O.L.C. at 156. Indeed, “the prospect that predeci-
sional deliberative communications will be disclosed to Congress is, if
anything, more likely to chill internal debate among executive branch
advisers than the possibility of disclosure to the judicial branch.” Memo-
randum for Janet Reno, Attorney General, from Walter Dellinger, Assis-
tant Attorney General, Office of Legal Counsel, Re: Congressional De-
mands to Interview Prosecutors and Review Deliberative Documents in
Closed Cases at 14–15 (Nov. 23, 1993). 11 Because many White House
11 As this Office has explained more fully:
When the Supreme Court held that the need for presidential communications in the
criminal trial of President Nixon’s close aides outweighed the constitutional privi-
lege, an important premise of its decision was that it did not believe that advisers
will be moved to temper the candor of their remarks by the infrequent occasions of
disclosure because of the possibility that such conversations will be called for in the
context of a criminal prosecution. By contrast, congressional requests for executive
branch deliberative information are anything but infrequent. Moreover, compared
to a criminal prosecution, a congressional investigation is usually sweeping; its is-
sues are seldom narrowly defined, and the inquiry is not restricted by the rules of
evidence. Finally, when Congress is investigating, it is by its own account often in
an adversarial position to the executive branch and initiating action to override
judgments made by the executive branch. This increases the likelihood that candid
advice from executive branch advisers will be taken out of context or misconstrued.
Congressional Requests, 13 Op. O.L.C. at 156–57 (internal quotation marks and citations
omitted).
29
45 Op. O.L.C. __ (Jan. 8, 2021)
staff members enjoy extensive access to the President, play important
roles in developing presidential policy, and often serve as the President’s
alter ego, the President’s interest in the confidentiality of White House
activities must be afforded considerable weight in assessing the legitima-
cy of an exercise of Congress’s oversight functions.
B. Executive Privilege and White House Information
The heightened executive privilege interests that apply to White House
communications provide an additional basis for distinguishing oversight
inquiries directed at the White House from oversight of departments and
agencies. Presidents have invoked executive privilege since the earliest
days of the Republic, and the Supreme Court has recognized the privilege
and held it to be an implied power under the Constitution. See Nixon, 418
U.S. at 705, 708; see also id. at 711 (“Nowhere in the Constitution . . . is
there any explicit reference to a privilege of confidentiality, yet to the
extent this interest relates to the effective discharge of a President’s
powers, it is constitutionally based.”); Congressional Requests, 13 Op.
O.L.C. at 154 (explaining that the existence of executive privilege is a
“necessary corollary of the executive function vested in the President by
Article II of the Constitution”). The Court has described the privilege as
“deriv[ing] from the supremacy of each branch within its own assigned
area of constitutional duties,” “fundamental to the operation of Govern-
ment,” “and inextricably rooted in the separation of powers under the
Constitution.” Nixon, 418 U.S. at 705, 708. The privilege “safeguards the
public interest in candid, confidential deliberations within the Executive
Branch,” and, as a result, “information subject to executive privilege
deserves the greatest protection consistent with the fair administration of
justice.” Mazars, 140 S. Ct. at 2032 (internal quotation marks omitted).
There are at least five well-recognized, and sometimes overlapping,
components of executive privilege: national security and foreign affairs,
law enforcement, deliberative process, attorney-client communications
and attorney work product, and presidential communications. See At-
tempted Exclusion of Agency Counsel from Congressional Depositions of
Agency Employees, 43 Op. O.L.C. __, at *8 & n.2 (May 23, 2019) (“Ex-
clusion of Agency Counsel ”); Assertion of Executive Privilege Concerning
the Special Counsel’s Interviews of the Vice President and Senior White
House Staff, 32 Op. O.L.C. 7, 8 (2008); Executive Privilege: The With-
30
Congressional Oversight of the White House
holding of Information by the Executive: Hearing on S. 1125 Before the
Subcomm. on Separation of Powers of the S. Comm. on the Judiciary,
92nd Cong. 420 (1971) (statement of William Rehnquist, Assistant Attor-
ney General, Office of Legal Counsel). Generally speaking, the national
security and foreign affairs component provides absolute protection for
materials the release of which would jeopardize sensitive diplomatic,
national security, or military matters, including classified information and
diplomatic communications. 12 Similarly, the law enforcement component
of the privilege gives the Executive Branch a near-absolute right to with-
hold from Congress information that would compromise ongoing law
enforcement activities. 13 Both of these components of executive privilege
are deeply rooted in the Constitution and the Nation’s history.
12 See, e.g., Egan, 484 U.S. at 527 (explaining that the President’s “authority to classi-
fy and control access to information bearing on national security . . . flows primarily from
th[e] constitutional investment of [the Commander in Chief] power in the President”);
United States v. Reynolds, 345 U.S. 1, 10–11 (1953) (recognizing the national security
component of the privilege in civil litigation involving military equipment); In re United
States, 872 F.2d 472, 476 (D.C. Cir. 1989) (explaining that the privilege provides absolute
protection for information the release of which would impair the Nation’s defense,
disclose intelligence activities, or disrupt diplomatic relations with foreign governments);
Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (explaining that “matters the revela-
tion of which reasonably could be seen as a threat to the military or diplomatic interests of
the nation . . . are absolutely privileged from disclosure in the courts”); Whistleblower
Protections for Classified Disclosures, 22 Op. O.L.C. 92, 97 (1998) (“[S]ince the Wash-
ington Administration, Presidents and their senior advisers have repeatedly concluded that
our constitutional system grants the executive branch authority to control the disposition
of secret information.”); Memorandum for C. Boyden Gray, Counsel to the President,
from J. Michael Luttig, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Congressional Access to Presidential Communications at 2–11 (Dec. 21,
1989) (explaining the absolute scope of the national security component in the context of
congressional investigations); Memorandum from William H. Rehnquist, Assistant
Attorney General, Office of Legal Counsel, and John R. Stevenson, Legal Adviser,
Department of State, Re: The President’s Executive Privilege to Withhold Foreign Policy
and National Security Information at 7 (Dec. 8, 1969) (“[N]ational security and foreign
relations considerations have been considered the strongest possible basis upon which to
invoke the privilege of the executive.”); see also Nixon, 418 U.S. at 706 (recognizing that
executive privilege may be absolute “to protect military, diplomatic, or sensitive national
security secrets”).
13 See Temporary Certification Under the President John F. Kennedy Assassination
Records Collection Act of 1992, 41 Op. O.L.C. __ (Oct. 26, 2017); Investigative Authority
of the General Accounting Office, 12 Op. O.L.C. 171, 177 (1988) (“With respect to open
31
45 Op. O.L.C. __ (Jan. 8, 2021)
Congressional inquiries to the White House more often implicate the
deliberative process, the attorney-client communications and attorney
work product, and particularly the presidential communications compo-
nents of executive privilege. These components are also deeply rooted,
and they protect from disclosure internal communications and information
concerning presidential and other executive branch decision-making.
They are based on the principle that the effective operation of the Execu-
tive Branch depends on shielding deliberative communications and advice
from disclosure. See Confidentiality of the Attorney General’s Communi-
cations in Counseling the President, 6 Op. O.L.C. 481, 484–97 (1982)
(“Attorney General’s Communications”).
The deliberative process component of executive privilege “safeguards
the public interest in candid, confidential deliberations within the Execu-
tive Branch” and protects all executive branch documents that reflect
advisory opinions, recommendations, and other deliberative communica-
tions generated during governmental decision-making. Mazars, 140 S. Ct.
at 2032; see In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); see
also Congressional Requests, 13 Op. O.L.C. at 156–57 & n.3 (explaining
the applicability of this component in the context of congressional re-
quests for information). The deliberative process component is premised
on the fact that disclosing the “communications and the ingredients of the
decisionmaking process” would inevitably cause “injury to the quality of
agency decisions” by inhibiting “‘frank discussion of legal or policy
law enforcement files, it has been the policy of the executive branch throughout our
Nation’s history to protect these files from any breach of confidentiality, except in
extraordinary circumstances.”); Independent Counsel Act Requests, 10 Op. O.L.C. at 75–
78 (explaining the Executive Branch’s authority to withhold open and closed law en-
forcement files from Congress); Prosecution for Contempt of Congress of an Executive
Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 117
(1984) (“Since the early part of the 19th century, Presidents have steadfastly protected the
confidentiality and integrity of investigative files from untimely, inappropriate, or uncon-
trollable access by the other branches, particularly the legislature.”); Assertion of Execu-
tive Privilege in Response to Congressional Demands for Law Enforcement Files, 6 Op.
O.L.C. 31, 32–33 (1982) (same concerning law enforcement files of the Environmental
Protection Agency); Position of the Executive Department Regarding Investigative
Reports, 40 Op. Att’y Gen. 45, 47 (1941) (same concerning investigative files of the
Federal Bureau of Investigation).
32
Congressional Oversight of the White House
matters.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 151 (1975)
(citation omitted). As the Supreme Court explained in Nixon:
[There is a] valid need for protection of communications between
high Government officials and those who advise and assist them in
the performance of their manifold duties; the importance of this con-
fidentiality is too plain to require further discussion. Human experi-
ence teaches that those who expect public dissemination of their re-
marks may well temper candor with a concern for appearances and
for their own interests to the detriment of the decisionmaking pro-
cess.
418 U.S. at 705; see also Dep’t of the Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8–9 (2001) (explaining that the deliberative
process component “rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential
item of discovery and front page news, and its object is to enhance the
quality of agency decisions, by protecting open and frank discussion
among those who make them” (internal quotation marks and citation
omitted)). The deliberative process component of executive privilege
applies especially strongly when the deliberations in question are ongo-
ing. See Publication of a Report to the President on the Effect of Automo-
bile and Automobile-Part Imports on the National Security, 44 Op. O.L.C.
__, at *10–11 (Jan. 17, 2020) (“Publication of Report on Imports”). But
the deliberative process component has certain limits: It protects predeci-
sional and deliberative materials and typically does not “shield documents
that simply state or explain a decision the government has already made
or protect material that is purely factual.” Sealed Case, 121 F.3d at 737.
Agencies may withhold factual information only to the extent it is “so
inextricably intertwined with the deliberative sections of documents that
its disclosure would inevitably reveal the government’s deliberations.” Id.
The attorney-client communications and attorney work product compo-
nent of executive privilege protects executive branch communications and
documents that involve legal analysis, legal advice, and other attorney
communications or work product. See Assertion of Executive Privilege
Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 2, 3
(1996) (Reno, Att’y Gen.) (recognizing that “[e]xecutive privilege ap-
plies” to certain documents “because of their deliberative nature, and
33
45 Op. O.L.C. __ (Jan. 8, 2021)
because they fall within the scope of the attorney-client privilege and the
work-product doctrine”). Often, such communications will be protected
by the deliberative process component in addition to the attorney-client
and attorney work product component. Yet “‘the reasons for the constitu-
tional privilege against the compelled disclosure of executive branch
deliberations have special force when legal advice is involved,’” because
“‘legal matters are likely to be among those on which high government
officials most need, and should be encouraged to seek, objective, expert
advice.’” Attorney General’s Communications, 6 Op. O.L.C. at 490 n.17
(citation omitted); see also Constitutionality of the OLC Reporting Act of
2008, 32 Op. O.L.C. 14, 17 (2008) (Mukasey, Att’y Gen.) (“[I]f executive
branch officials are to execute their constitutional and statutory responsi-
bilities, they must have access to candid and confidential legal advice and
assistance.”).
The presidential communications component of executive privilege,
which is the most salient component for White House purposes, protects
communications made in connection with presidential decision-making.
See Nixon, 418 U.S. at 708 (explaining importance of presidential com-
munications privilege in government operations); Sealed Case, 121 F.3d
at 746 (explaining that the “presidential [communications] privilege
affords greater protection against disclosure” than the deliberative pro-
cess privilege); Memorandum for the Attorney General from John M.
Harmon, Assistant Attorney General, Office of Legal Counsel, Re: The
Constitutional Privilege for Executive Branch Deliberations: The Dis-
pute with a House Subcommittee over Documents Concerning the Gaso-
line Conservation Fee at 13 (Jan. 13, 1981) (“Executive Branch Deliber-
ations”). Although the presidential communications component applies
only to presidential decision-making, it is broader than the deliberative
process component in terms of the types of communications that are
protected. All presidential communications are “presumptively privi-
leged” and protected from disclosure, including post-decisional exchang-
es and documents conveying purely factual information. Nixon, 418 U.S.
at 708, 713–14 (explaining that a presumptive privilege applies to the
President’s “conversations and correspondence”); see also Sealed Case,
121 F.3d at 745 (“[U]nlike the deliberative process privilege, the presi-
dential communications privilege applies to documents in their entirety,
and covers final and post-decisional materials as well as pre-deliberative
34
Congressional Oversight of the White House
ones.”). In addition, this component of executive privilege covers com-
munications between the President and agencies concerning presidential
decision-making, including communications concerning the exercise of
statutory authority. See Publication of Report on Imports, 44 Op. O.L.C.
__, at *7–9.
The presidential communications component of executive privilege is
not limited to exchanges directly involving the President. The Supreme
Court emphasized in Nixon that the “President and those who assist him
must be free to explore alternatives in the process of shaping policies and
making decisions,” 418 U.S. at 708 (emphasis added), and explicitly
described the privilege as protecting communications within the Presi-
dent’s “office,” id. at 712–13. We have consistently recognized that for
the President to obtain full, frank, and complete advice, the presidential
communications component must apply to deliberations among the Presi-
dent’s advisers and their staffs. See, e.g., Attorney General’s Communica-
tions, 6 Op. O.L.C. at 485–86 & n.11 (explaining that the presidential
communications privilege protects the presidential “decisionmaking
process” and, therefore, can apply to the work of presidential advisers).
The D.C. Circuit agreed in 1997, when it held that “communications
made by presidential advisers in the course of preparing advice for the
President come under the presidential communications privilege, even
when these communications are not made directly to the President.”
Sealed Case, 121 F.3d at 751–52. In reaching this conclusion, the court,
echoing the Supreme Court’s analysis in Nixon, warned that “[i]f presi-
dential advisers must assume they will be held to account publicly for all
approaches that were advanced, considered, but ultimately rejected, they
will almost inevitably be inclined to avoid serious consideration of novel
or controversial approaches to presidential problems.” Id. at 750. Exclud-
ing presidential advisers and their staffs from the presidential communica-
tions component would hinder the President’s “access to honest and
informed advice” and limit his “ability to explore possible policy op-
tions.” Id. at 751. A narrower privilege would “impede . . . the presiden-
cy,” id., and diminish the quality of presidential decisions:
Presidential advisers do not explore alternatives only in conversa-
tions with the President or pull their final advice to him out of thin
air—if they do, their advice is not likely to be worth much. Rather,
35
45 Op. O.L.C. __ (Jan. 8, 2021)
the most valuable advisers will investigate the factual context of a
problem in detail, obtain input from all others with significant exper-
tise in the area, and perform detailed analyses of several different
policy options before coming to closure on a recommendation for the
Chief Executive. The President himself must make decisions relying
substantially, if not entirely, on the information and analysis sup-
plied by advisers.
Id. at 750. 14
Against this backdrop, communications within the White House and
between White House staff and other EOP components that concern
possible presidential decision-making will normally fall under the presi-
dential communications component of executive privilege, and not just
the deliberative process or attorney-client communications and attorney
work product components that apply to all government agencies and that
are most commonly implicated when congressional committees make
oversight requests of executive agencies. See Executive Branch Delibera-
tions at 12 (concluding that “‘presidential’ communications . . . presuma-
bly [include] discussions among the President’s aides and officials in the
Executive Office of the President ” (emphasis added)). Consequently, a
congressional request for internal White House communications and intra-
EOP communications will frequently implicate the presidential communi-
cations component of executive privilege. As a result, oversight directed
at the White House will typically involve privilege interests that are, on
the whole, considerably greater than those arising solely in the agency
context, where other components are more commonly implicated.
14 In Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004), the
D.C. Circuit in dictum construed Sealed Case’s use of the phrase “White House adviser”
when describing the scope of the presidential communications privilege as restricting the
privilege to the President’s “immediate advisers in the Office of the President” (a compo-
nent of the EOP also called the White House Office). Id. at 1123; see id. at 1109 n.1,
1116–17, 1123–24. This assumption misinterprets Sealed Case. Its explicit holding that
communications by “presidential advisers” and “their staff ” made “in the course of
preparing advice for the President come under the presidential communications privilege”
indicates that the privilege must encompass advisers in EOP entities outside the Office of
the President whose primary function is to advise and assist the President. See 121 F.3d at
751–52.
36
Congressional Oversight of the White House
C. The Accommodation Process
for Oversight of the White House
Given the President’s interests in autonomy and confidentiality, the ac-
commodation process will often lead to a different balance when applied
to the White House as compared to the departments and agencies. It is
long-standing executive branch policy that upon receipt of an authorized
oversight request that is in furtherance of a legitimate legislative purpose,
departments and agencies should “comply with Congressional requests for
information to the fullest extent consistent with the constitutional and
statutory obligations of the Executive Branch.” Memorandum for Heads
of Executive Departments and Agencies from Ronald Reagan, Re: Proce-
dures Governing Responses to Congressional Requests for Information
at 1 (Nov. 4, 1982) (“Reagan Memorandum”). The manner of that com-
pliance is determined by the operation of the accommodation process
mandated by the Constitution, recognized by the Judicial Branch, and
practiced by the Executive and Legislative Branches. “Historically, good
faith negotiations between Congress and the Executive Branch have
minimized the need for invoking executive privilege,” and “this tradition
of accommodation” has remained “the primary means of resolving con-
flicts between the Branches.” Id.
The Supreme Court has also recognized that disputes over congression-
al demands for executive documents ordinarily “have been hashed out in
the ‘hurly-burly, the give-and-take of the political process between the
legislative and the executive.’” Mazars, 140 S. Ct. at 2029 (quoting Exec-
utive Privilege—Secrecy in Government: Hearings on S. 2170, S. 2378,
and S. 2420 Before the Subcomm. on Intergovernmental Relations of the
S. Comm. on Gov’t Operations, 94th Cong. 87 (1975) (statement of Anto-
nin Scalia, Assistant Attorney General, Office of Legal Counsel)). Since
the Washington Administration, the Executive Branch has resisted con-
gressional information demands that were overly burdensome or threat-
ened to impair “the public good.” Id. at 2029–30 (internal quotation marks
omitted). Executive branch resistance, in turn, has often been met by
congressional pressure, which was then followed by subsequent negotia-
tions between the branches. In most instances, Congress and the Execu-
tive Branch have reached a compromise in which Congress might, for
example, narrow the scope of its request or better articulate its needs, and
37
45 Op. O.L.C. __ (Jan. 8, 2021)
the Executive Branch might, for example, supply a subset of the requested
documents, provide summaries of the information requested, or permit in
camera review of particular documents. Id. This long-standing “tradition
of negotiation and compromise” stands at the heart of the accommodation
process. Id. at 2031.
In AT&T, the D.C. Circuit discussed the constitutional foundations for
the accommodation process. 567 F.2d 121. There, the Department of
Justice sought to enjoin AT&T from complying with a congressional
subpoena that the Executive Branch believed implicated highly classified
information, the disclosure of which would be detrimental to national
security. The D.C. Circuit declined to decide the case on the merits and
instead mandated a “procedure giv[ing] promise of satisfying the substan-
tial needs of both [branches].” Id. at 123. The court stated:
The framers . . . expect[ed] that where conflicts in scope of authority
arose between the coordinate branches, a spirit of dynamic compro-
mise would promote resolution of the dispute in the manner most
likely to result in efficient and effective functioning of our govern-
mental system. . . . [E]ach branch should take cognizance of an im-
plicit constitutional mandate to seek optimal accommodation through
a realistic evaluation of the needs of the conflicting branches in the
particular fact situation.
Id. at 127. “[T]he resolution of conflict between the coordinate branches
in these situations must be regarded as an opportunity for a constructive
modus vivendi, which positively promotes the functioning of our system.”
Id. at 130.
In light of this history and precedent, both the Executive Branch and
Congress have recognized their respective constitutional obligations to
seek accommodation through good faith negotiations over their respective
interests. See, e.g., Elizabeth B. Bazan & Morton Rosenberg, Cong.
Research Serv., Congressional Oversight of Judges and Justices 10 (May
31, 2005) (“Although the accommodation process between Congress and
the Executive Branch is conducted in a highly political atmosphere, the
arguments made by each side are usually grounded in legal doctrine and
rely heavily on their interpretations and past experiences. At times, the
Executive Branch is able to persuade Congress that a particular request is
insufficiently weighty[.]”); Congressional Requests, 13 Op. O.L.C. at 159
38
Congressional Oversight of the White House
(“The process of accommodation requires that each branch explain to the
other why it believes its needs to be legitimate. Without such an explana-
tion, it may be difficult or impossible to assess the needs of one branch
and relate them to those of the other.”); Assertion of Executive Privilege
in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981)
(Smith, Att’y Gen.) (“The accommodation required is not simply an
exchange of concessions or a test of political strength. It is an obligation
of each branch to make a principled effort to acknowledge, and if possible
to meet, the legitimate needs of the other branch.”). The accommodation
process has usually proved successful in reconciling congressional infor-
mational needs with the Executive Branch’s interests, and so congression-
al committees rarely pursue citing executive branch officials for contempt
of Congress to enforce their document and testimonial subpoenas, see
infra Part IV.A, and Presidents rarely invoke executive privilege.
Because the accommodation process is premised upon working out
each branch’s needs and interests, the outcome of that process may differ
when it comes to the White House. As explained in Part I, the White
House functions separately from the departments and agencies and histor-
ically has been “a combined administrative, advisory, planning, and
policy-formulating office serving the President in an intimate, indispensa-
ble capacity.” Clinton L. Rossiter, The Constitutional Significance of the
Executive Office of the President, 43 Am. Pol. Sci. Rev. 1206, 1215
(1949). To a much greater degree than other parts of the Executive
Branch, the White House serves to advise and assist the President, par-
ticularly in the discharge of his constitutional functions. Although there
may be occasions when a congressional committee can appropriately seek
information from the White House, particularly where the President is
charged with the discharge of statutory functions, the separation of pow-
ers principles discussed above impose significant constraints on White
House oversight, as reflected in long-standing practice. 15 The timing and
15 See, e.g., Letter for John W. Byrnes, House of Representatives, from Joseph Camp-
bell, Comptroller General of the United States at 2 (Sept. 18, 1962) (“[W]e are certain you
understand that [Comptroller General] investigations of White House activities are not
subject to the same techniques as those conducted in the various departments and agen-
cies. Files of the White House Office, with the exception of financial records, are normal-
ly not available to us. Also, White House personnel are not always available for inter-
view. This has been the situation in all recent Administrations.”); see also Cong. Research
39
45 Op. O.L.C. __ (Jan. 8, 2021)
scope of inquiries directed to the White House, and the accommodations
offered by the White House, must be sensitive to the President’s interests
in autonomy and confidentiality, as well as the heightened confidentiality
interests in White House communications. They also must reflect the
different balance of needs and interests that applies to oversight of the
White House: Congressional needs are often more attenuated (because it
is the departments and agencies that administer most statutory programs),
and the Executive Branch’s institutional interests are greater (based on the
President’s need for autonomy and the heightened confidentiality inter-
ests).
As with all oversight requests, the White House may properly insist
that a congressional committee articulate a legitimate legislative purpose
for inquiries directed at the White House. See Barenblatt, 360 U.S. at111–12; Watkins, 354 U.S. at 187. The committee’s legislative purpose
should be “carefully assess[ed],” whether or not the information sought is
likely to be protected by executive privilege. Mazars, 140 S. Ct. at 2035.
The White House should independently “examine the objective fit be-
tween that purpose and the information sought, as well as any other evi-
dence that may bear upon the Committee’s true objective.” President’s
Tax Returns, 43 Op. O.L.C. __, at *17. If the legitimate purpose underly-
ing the oversight request appears unclear, White House staff may request
that the committee clarify that purpose. See id. at *26 (“The separation of
powers would be dramatically impaired were the Executive required to
. . . accept[] the legitimacy of any reason proffered by Congress, even in
the face of clear evidence to the contrary.”). The White House must take
care to ensure that the requests involve a legitimate legislative purpose
Serv., RL31351, Presidential Advisers’ Testimony Before Congressional Committees: An
Overview 21 (Dec. 15, 2014) (“Given the tradition of comity between the executive and
legislative branches, Congress often elects not to request the appearance of presidential
aides. When Congress has requested the appearance of such aides, Presidents and their
aides have at times resisted, asserting the separation of powers doctrine and/or executive
privilege.” (footnote omitted)); Louis Fisher, White House Aides Testifying Before Con-
gress, 27 Presidential Stud. Q. 139, 151 (1997) (“The White House is usually insulated
from congressional inquiry because of a long-standing comity that exists between Con-
gress and the presidency. By and large, each branch concedes a certain amount of auton-
omy to the other. Only in clear cases of abuse and obvious bad faith will Congress insist
that White House aides appear and give an account of their activities.”).
40
Congressional Oversight of the White House
and do not intrude upon the exclusive constitutional prerogatives of the
President.
In addition, because any congressional inquiry must respect the “auton-
omy” of the President’s close advisers and “the confidentiality of [their]
communications,” Cheney, 542 U.S. at 385, a congressional committee
seeking information about a statutory program should generally be di-
rected first to the agency that administers the program in question. See
Mazars, 140 S. Ct. at 2035–36 (explaining that “[o]ccasion[s] for consti-
tutional confrontation between the two branches should be avoided when-
ever possible” and that “Congress may not rely on the President’s infor-
mation if other sources could reasonably provide Congress the
information it needs” (internal quotation marks omitted)). This practice of
exhaustion is rooted in separation of powers principles and the practical
realities of White House operations. It is crucial to the functioning of the
Executive Branch that White House staff members be able to perform
their functions independently and effectively in service of the President.
Congressional efforts to conduct extensive and time-consuming oversight
of the White House could seriously interfere with that mission. When
information Congress seeks is available from an agency, there is no rea-
son to subject the President’s advisers to potentially burdensome over-
sight requests, especially because aspects of their work are far more likely
to implicate the presidential communications component of executive
privilege. 16
Accordingly, when faced with a congressional request for information
that reasonably could be acquired from a department or agency, White
House staff often advise the relevant committee that it should pursue its
request there. Only if the committee has exhausted the possibility of
obtaining the necessary information elsewhere, and has determined that
the necessary information may be obtained only from the White House,
should the committee direct its inquiry to the White House.
16 Courts have credited these concerns in a series of cases discussing FOIA requests.
The D.C. Circuit, for instance, has declined to allow FOIA requests for the President’s
White House visitor logs—even though the logs were held by the Secret Service, which is
housed within the Department of Homeland Security, rather than the White House—
because such requests “could render FOIA a potentially serious congressional intrusion
into the conduct of the President’s daily operations.” Judicial Watch, Inc. v. U.S. Secret
Serv., 726 F.3d at 226.
41
45 Op. O.L.C. __ (Jan. 8, 2021)
When a committee’s request to the White House concerns statutory
functions, is within the committee’s delegated oversight authority, and
rests on a legitimate legislative purpose—and after the committee has
attempted to seek such information from any relevant agencies—then the
White House should consider how to accommodate the committee’s needs
in a manner consistent with the interests of the Executive Branch. See
AT&T, 567 F.2d at 127. An important feature of the accommodation
process is the dialogue that takes place between the committee and the
White House to ensure that information requests are not “unnecessarily
broad.” Cheney, 542 U.S. at 390. Given the separation of powers princi-
ples at stake, these negotiations can help “narrow the scope of possible
conflict between the branches,” and ensure that a request is “no broader
than reasonably necessary to support Congress’s legislative objective.”
Mazars, 140 S. Ct. at 2036.
The accommodation process has several rules of the road. First, the
White House may properly demand that Congress’s request be reasonably
specific. “The specificity of [a committee’s] request ‘serves as an im-
portant safeguard against unnecessary intrusion into the operation of the
Office of the President.’” Id. (quoting Cheney, 542 U.S. at 387). A com-
mittee should clearly explain the nature and scope of its request and
provide the White House with an opportunity to seek further explanation
if the White House believes that the request is vague or otherwise ambig-
uous. Second, the “burdens imposed by a congressional [request] should
be carefully scrutinized, for they stem from a rival political branch that
has an ongoing relationship with the President and incentives to use
subpoenas [or other requests] for institutional advantage.” Id. Finally,
given the relatively small staff and resources available in the White
House, the committee must afford the White House sufficient time to
respond to its inquiry and flexibility in its manner and mode of response.
In light of these considerations, the White House typically seeks to ac-
commodate congressional requests by providing written responses or oral
briefings on relevant activities or policies, supplemented sometimes by
the production of specific non-privileged documents. The White House
does not ordinarily undertake the burden of reviewing and producing
e-mails and other documents, which generally will consist primarily of
deliberative communications within the White House or between the
42
Congressional Oversight of the White House
White House and other parts of the Executive Branch. Searching through
and processing the thousands of presumptively privileged e-mails likely to
be responsive to a single request undoubtedly would divert the relatively
small White House staff from its important work for the President. Fur-
ther, the practice of providing written responses and oral briefings instead
of e-mails and other internal communications helps preserve the Presi-
dent’s ability to obtain full and frank advice from White House staff. This
is critical to avoid chilling the candor of White House communications,
since “[t]he President himself must make decisions relying substantially,
if not entirely, on the information and analysis supplied by advisers.”
Sealed Case, 121 F.3d at 750.
Such responses and briefings, in lieu of documents, are generally suffi-
cient to satisfy the legitimate information needs of congressional commit-
tees. As noted above, because the purpose of oversight is to enable Con-
gress to “exercise its legislative function advisedly and effectively,”
McGrain, 273 U.S. at 161, rarely do the “legislative judgments” informed
by the oversight process depend on a “precise reconstruction of past
events,” Senate Select Comm., 498 F.2d at 732; see Mazars, 140 S. Ct. at
2036; Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *10.
Moreover, “‘Congress will seldom have any legitimate legislative interest
in knowing the precise predecisional positions and statements of particu-
lar executive branch officials.’” Congressional Requests, 13 Op. O.L.C. at
159 (citation omitted). Although in appropriate circumstances agencies
may offer the accommodation of access to deliberative materials (permit-
ting them to be read but not copied, for example), such an accommodation
would be quite unusual for internal White House and intra-EOP delibera-
tive communications because of the President’s unique need for autonomy
and heightened confidentiality interests.
IV. Congressional Subpoenas to the White House
We next turn to consider the procedures by which congressional com-
mittees may issue and seek to enforce subpoenas. Drawing on the consti-
tutional principles discussed in the prior Parts, we outline some of the
grounds on which the Executive Branch has commonly objected to the
scope or enforceability of congressional subpoenas.
43
45 Op. O.L.C. __ (Jan. 8, 2021)
A. Issuance and Enforcement of Subpoenas
Congress’s subpoena power is inherent in its investigative authority.
See Mazars, 140 S. Ct. at 2031; U.S. Servicemen’s Fund, 421 U.S. at 504(observing that the issuance of subpoenas “has long been held to be a
legitimate use by Congress of its power to investigate”); Independent
Counsel Act Requests, 10 Op. O.L.C. at 81–82 (discussing congressional
authority to issue subpoenas). Because the authority to issue subpoenas is
an inherent constitutional power, Congress does not need statutory author-
ization to issue a subpoena, but any “exercise of subpoena power must be
authorized by the relevant House.” Independent Counsel Act Requests, 10
Op. O.L.C. at 82 (citing Reed v. Cty. Comm’rs, 277 U.S. 376, 389 (1928);
McGrain, 273 U.S. at 158); see also Authority to Investigate for Im-
peachment, 44 Op. O.L.C. __, at *19 (“a committee’s authority to compel
the production of documents and testimony depends entirely upon the
jurisdiction provided by the terms of the House’s delegation”).
The Senate rules provide committees with the authority to subpoena
witnesses, “correspondence, books, papers, and documents,” Senate Rule
XXVI(1), and similarly the rules of the House of Representatives author-
ize committees to subpoena “witnesses and the production of such books,
records, correspondence, memoranda, papers, and documents as [they]
consider[] necessary,” House Rule XI.2(m)(1)(B). The precise procedures
for issuing a subpoena vary depending on the rules of the chamber and
committee involved. See Michael L. Koempel, Cong. Research Serv.,
R44247, A Survey of House and Senate Committee Rules on Subpoenas 5–
16 (Jan. 29, 2018) (“Survey of Committee Rules”) (detailing House and
Senate chamber and committee rules on subpoena procedures). In the
House, subpoenas generally may be issued by a committee “only when
authorized by the committee . . . , a majority being present,” but commit-
tees may delegate that power to “the chair of the committee under such
rules and under such limitations as the committee may prescribe.” House
Rule XI.2(m)(3)(A)(i); see also Survey of Committee Rules at 1 (“[m]ost
House committees” have delegated subpoena power to their chairs). The
Senate’s standing rules delegate to each committee responsibility for
establishing subpoena procedures, and the procedures vary widely. See
Senate Rule XXVI(2).
44
Congressional Oversight of the White House
During Watergate and on several occasions more recently, congression-
al committees have turned to the federal courts seeking the enforcement
of subpoenas against executive branch officials. This is a marked depar-
ture from long-standing practice: “Historically, disputes over congres-
sional demands for presidential documents have not ended up in court.”
Mazars, 140 S. Ct. at 2029; see Comm. on the Judiciary v. McGahn, 968
F.3d 755, 777 (D.C. Cir. 2020) (en banc) (noting that “there have been
relatively few” such cases). The Supreme Court has recognized that
“Congress and the Executive have nonetheless managed for over two
centuries to resolve” privilege disputes without recourse to the Supreme
Court. Mazars, 140 S. Ct. at 2031. And although Mazars arose in an
unusual posture that made it justiciable—because the President in his
personal capacity sought to require his accountants to comply with their
confidentiality obligations—that case was the first such dispute to reach
the Supreme Court. See id. (“we have never considered a dispute over a
congressional subpoena for the President’s records”).
In recent decades, the Department of Justice has maintained that a con-
gressional suit to enforce a subpoena against the Executive Branch is not
justiciable. 17 First, such a lawsuit typically alleges an abstract “type of
institutional injury (the diminution of legislative power)” that does not
constitute a “‘concrete and particularized’” legal injury as required for
Article III standing—a doctrine that applies “especially rigorous[ly]” in
separation of powers cases. Raines v. Byrd, 521 U.S. 811, 819–21 (1997)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Second, as
noted above, such suits were nearly unprecedented as a historical matter,
despite the history of oversight disputes between Congress and the Execu-
17 Although a congressional committee may not seek judicial enforcement of a subpoe-
na against the Executive Branch, there are some cases, such as Mazars, where a suit
involving a congressional subpoena would be justiciable. The dispute there no doubt
presented “significant separation of powers issues” and was in meaningful respects an
inter-branch dispute, 140 S. Ct. at 2033–34, but as noted, it involved the President’s
private right in his personal papers and the legal obligations owed to him by third parties
that were the actual recipients of the subpoenas, see id. at 2027–28; see also Comm. on
the Judiciary v. McGahn, 951 F.3d 510, 531 (D.C. Cir. 2020) (“we may adjudicate cases
concerning congressional subpoenas if they implicate the rights of private parties”),
vacated on reh’g en banc, 968 F.3d 755; United States v. Am. Tel. & Tel. Co., 551 F.2d
384, 390–91 (D.C. Cir. 1976) (holding that an executive branch suit to enjoin a third party
from complying with a congressional subpoena was justiciable).
45
45 Op. O.L.C. __ (Jan. 8, 2021)
tive Branch going back to the First Congress, and thus are not “‘tradition-
ally thought to be capable of resolution through the judicial process.’” Id.
at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)); see also Sprint
Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008) (“history
and tradition offer a meaningful guide to the types of cases that Article III
empowers federal courts to consider”). It was not until 1974—almost two
centuries after the Constitution’s ratification—that a committee of Con-
gress appears to have first brought a civil action attempting to compel
executive branch compliance with a subpoena. See Senate Select Comm.,
498 F.2d 725. In that case, a statute purported to give the District Court
for the District of Columbia jurisdiction in “any civil action” brought by
the Senate committee investigating the Watergate scandal to “enforce and
secure a declaration concerning the validity of any subpoena.” Pub. L. No.
93-190, § (a), 87 Stat. 736, 736 (1973); see also Senate Select Comm., 498
F.2d at 727–28 (explaining the jurisdiction conferred by the special law).
The court of appeals did not address whether the case was justiciable as a
constitutional matter. No committee of Congress brought a subpoena-
enforcement action again until 2008, when House committees began filing
such suits with some regularity. 18
Earlier this year, a panel of the D.C. Circuit agreed with the Depart-
ment and dismissed a congressional suit seeking enforcement of a sub-
poena to the former Counsel to the President. Comm. on the Judiciary v.
McGahn, 951 F.3d 510 (D.C. Cir. 2020), vacated on reh’g en banc, 968
F.3d 755. The panel concluded that “separation-of-powers principles and
historical practice” bar federal courts from exercising jurisdiction over
committee suits “to enforce a congressional subpoena against the Execu-
tive Branch.” Id. at 522. The court reheard the case en banc and vacated
that ruling, holding that congressional committees could assert informa-
tional injuries no less than private parties because the constitutional
separation of powers erects no “structural barrier to judicial involvement
in informational disputes between the elected branches.” McGahn, 968
18 See Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary v.
Miers, No. 08-0409 (D.D.C. Mar. 10, 2008); Complaint, Comm. on Oversight & Gov’t
Reform v. Holder, No. 12-1332 (D.D.C. Aug. 13, 2012); Complaint for Declaratory and
Injunctive Relief, Comm. on the Judiciary v. McGahn, No. 19-2379 (D.D.C. Aug. 7,
2019); Complaint for Declaratory and Injunctive Relief, Comm. on Oversight & Reform v.
Barr, No. 19-3557 (D.D.C. Nov. 26, 2019).
46
Congressional Oversight of the White House
F.3d at 768. But see id. at 783–84 (Griffith, J., dissenting) (faulting the
majority for “its neglect of the interbranch nature of this dispute”). On
remand, however, the panel held that congressional committees nonethe-
less lack a cause of action to seek judicial enforcement of a subpoena in
this context. McGahn, 973 F.3d 121 (D.C. Cir. 2020), reh’g en banc
granted, No. 19-5331 (Oct. 15, 2020).
As the panel recognized, even if congressional suits to enforce subpoe-
nas to the Executive Branch were justiciable, they fall outside the statuto-
ry jurisdiction of the federal courts and are unsupported by any cause of
action. Although committees have relied upon the federal-question statute,
28 U.S.C. § 1331, as a basis for subject-matter jurisdiction, a more specif-
ic statute governs jurisdiction over congressional subpoena-enforcement
suits, id. § 1365(a). This latter statute provides jurisdiction only for Sen-
ate actions, and more importantly excludes all actions to enforce subpoe-
nas against executive branch officials who raise “a governmental privi-
lege.” Id.; see McGahn, 951 F.3d at 522 (“The obvious effect of section
1365(a)’s carve-out is to keep interbranch information disputes like this
one out of court.”). Indeed, the carve-out sought to accommodate the
Executive Branch’s view, expressed by then-Assistant Attorney General
Scalia, that “the Supreme Court should not and would not undertake to
adjudicate the validity of the assertion of executive privilege against the
Congress.” Executive Privilege—Secrecy in Government: Hearings on S.
2170, S. 2378, and S. 2420 Before the Subcomm. on Intergovernmental
Relations of the S. Comm. on Gov’t Operations, 94th Cong. 83 (1975)
(statement of Assistant Attorney General Scalia); see also id. at 84
(“[T]he courts are precisely not the forum in which this issue should be
resolved.”).
Moreover, in addition to lacking a statutory basis for jurisdiction,
House committees lack any cause of action to enforce their subpoenas.
The statute that provides a cause of action to enforce Senate subpoenas,
2 U.S.C. § 288d, like section 1365(a), applies only to the Senate (and
imposes various restrictions). That limitation (among other considera-
tions) also makes clear, as the McGahn panel explained, that neither an
implied cause of action under Article I of the Constitution nor an equita-
ble cause of action is available to the House in this context. See 973 F.3d
at 123–24; see also id. at 124–25 (applying Supreme Court and circuit
precedent to reject the argument that the Declaratory Judgment Act, 28
47
45 Op. O.L.C. __ (Jan. 8, 2021)
U.S.C. § 2201, provides a cause of action). As the Supreme Court has
recognized, Congress’s authority “to compel production of evidence
differs widely from authority to invoke judicial power for that purpose.”
Reed, 277 U.S. at 389.
In the 1980s, this Office opined that these civil suits do lie within the
constitutional and statutory jurisdiction of the federal courts and are
appropriate for judicial resolution. See Independent Counsel Act Requests,
10 Op. O.L.C. at 87–89; Prosecution for Contempt of Congress of an
Executive Branch Official Who Has Asserted a Claim of Executive Privi-
lege, 8 Op. O.L.C. 101, 137 (1984) (“Prosecution for Contempt of Con-
gress”). 19 But those statements preceded significant decisions in which the
Supreme Court clarified the requirements of Article III standing (most
notably Raines v. Byrd ) and amendments to 28 U.S.C. § 1365(a) enacted
in 1996 that confirm Congress’s intent to bar inter-branch informational
disputes from federal court. See McGahn, 951 F.3d at 522 (discussing
1996 legislative history). In fact, the author of one such OLC opinion,
Assistant Attorney General Theodore Olson, argued while later serving as
Solicitor General that these developments in the law undermined the
Department’s earlier view. See Defendant’s Memorandum of Points &
Auths. in Reply to Plaintiff ’s Opposition to Motion to Dismiss, Walker v.
Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002) (No. 02-340), 2002 WL
32388026 (relying on Raines to argue that a suit brought by the Comptrol-
ler General against executive branch officials was nonjusticiable). This
Office was consulted on that brief at the time, and we continue to think
that these developments in the law support the Department’s current view
that Congress may not properly seek to enforce its subpoenas in federal
court against executive branch officials.
Congress has increasingly turned to civil enforcement suits as an alter-
native to traditional efforts to compel executive branch officials to pro-
vide information that Congress has requested. Historically, Congress has
had no shortage of ways to use its powers to press executive branch
officials to negotiate and to comply with appropriate informational de-
The Department of Justice even attempted to bring an analogous suit against the
19
House in 1983. See United States v. House of Representatives, 556 F. Supp. 150 (D.D.C.
1983) (dismissing, on prudential grounds, a suit seeking a declaratory judgment that the
Administrator of the Environmental Protection Agency had lawfully withheld privileged
documents from Congress).
48
Congressional Oversight of the White House
mands. Congress has the power of the purse, see U.S. Const. art. I, § 9,
cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law”), as well as the power to impeach and
remove executive officers, see id. § 2, cl. 5; id. § 3, cls. 6–7, and the
Senate’s consent is necessary for the appointments of many senior execu-
tive officers, see id. art. II, § 2, cl. 2. Congress also may press its case
directly to the press and to the public at large. Those powers have fre-
quently been deployed as a means of ensuring that the Executive Branch
acts in accord with the “tradition of negotiation and compromise,”
Mazars, 140 S. Ct. at 2031, that has led to the successful resolution of
many oversight disputes.
Congress also has other, more direct means of ensuring compliance
with subpoenas. One theoretical option would be for the House or Senate
to invoke its inherent contempt powers and instruct the Sergeant-at-Arms
to arrest an individual cited for contempt. See Jurney v. MacCracken, 294
U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821). How-
ever, Congress has not sought to arrest any person for contempt in more
than 80 years, see Independent Counsel Act Requests, 10 Op. O.L.C. at
86, and has not sought to arrest an executive branch official in more than
a century, see McGahn, 968 F.3d at 776. Any effort by Congress to arrest
a White House official for noncompliance with a subpoena based upon a
legitimate separation of powers objection would, besides raising serious
practical concerns, likely be unconstitutional. See Immunity of the Former
Counsel, 43 Op. O.L.C. __, at *20–21 (“The constitutional separation of
powers bars Congress from exercising its inherent contempt power in the
face of a presidential assertion of executive privilege. An attempt to
exercise inherent contempt powers in such a circumstance would be
without precedent and would immeasurably burden the President’s ability
to assert the privilege and to carry out his constitutional functions.” (in-
ternal quotation marks omitted)). Congressional authority to arrest execu-
tive officials for actions properly taken to protect the prerogatives of the
Executive Branch is the type of “great substantive and independent pow-
er[]” that the Constitution would not have left to mere implication. Nat’l
Fed’n of Indep. Bus., 567 U.S. at 559 (opinion of Roberts, C.J.) (internal
quotation marks omitted).
To complement its inherent contempt power, Congress in the mid-
nineteenth century enacted a criminal statute to prohibit defiance of a
49
45 Op. O.L.C. __ (Jan. 8, 2021)
congressional subpoena. See 2 U.S.C. § 192. Under the statute, where a
person who is summoned to give testimony or to produce papers and
“willfully makes default, or who, having appeared, refuses to answer any
question pertinent to the question under inquiry,” id., the President of the
Senate or the Speaker of the House may refer to an “appropriate United
States attorney” for prosecution an individual who refuses to comply with
a subpoena. Id. § 194. Congress has invoked the criminal contempt statute
against private parties and executive branch officials as well.
We have long maintained, however, that the contempt statute does not
apply to executive branch officials who resist congressional subpoenas in
order to protect the prerogatives of the Executive Branch. See Prosecution
for Contempt of Congress, 8 Op. O.L.C. at 129–42. Moreover, given that
the prosecution authority is part of the executive power, Congress may
only refer an individual to a United States Attorney for a contempt prose-
cution; the Department of Justice ultimately has the prosecutorial discre-
tion to decide whether a person should be indicted and prosecuted. See
Nixon, 418 U.S. at 693 (“the Executive Branch has exclusive authority
and absolute discretion to decide whether to prosecute a case”); Prosecu-
tion for Contempt of Congress, 8 Op. O.L.C. at 119–20 (Department of
Justice controls whether any contempt prosecution will be brought). In
response to criminal referrals for two White House officials in 2008, for
instance, Attorney General Michael Mukasey notified the Speaker of the
House that the Department of Justice would “not bring the congressional
contempt citations before a grand jury or take any other action to prose-
cute,” because, in light of the President’s assertions of executive privi-
lege, the “non-compliance by [the President’s Chief of Staff ] and [the
former Counsel to the President] . . . did not constitute a crime.” Letter
for Nancy Pelosi, Speaker of the House, from Michael B. Mukasey,
Attorney General at 2 (Feb. 29, 2008); see also Prosecution for Contempt
of Congress, 8 Op. O.L.C. at 128 (contempt statute does not override the
Executive’s prosecutorial discretion); Prosecutorial Discretion Regard-
ing Citations for Contempt of Congress, 38 Op. O.L.C. 1, 2–3 (2014)
(same).
Congressional committees have generally sought enforcement of sub-
poenas against noncompliant witnesses only with an authorization from
the full House or Senate. See 2 U.S.C. § 288b(b) (requiring “adoption of a
resolution by the Senate” to authorize a Senate subpoena-enforcement
50
Congressional Oversight of the White House
suit); House Rule XI.2(m)(3)(C) (“Compliance with a subpoena issued by
a [House] committee or subcommittee . . . may be enforced only as au-
thorized or directed by the House.”); Cong. Research Serv., RL30548,
Hearings in the U.S. Senate: A Guide for Preparation and Procedure 11
(Mar. 18, 2010) (“Compliance with a [Senate committee] subpoena can be
enforced only at the direction of the Senate.”); Independent Counsel Act
Requests, 10 Op. O.L.C. at 82–83 (discussing procedures for enforcing
House subpoenas). 20 If the committee seeks to enforce the subpoena by
holding the recipient in contempt, the committee (by a majority vote)
must seek such approval by “report[ing] a resolution of contempt to the
floor.” Louis Fisher, Cong. Research Serv., Congressional Investigations:
Subpoenas and Contempt Power 7 (Apr. 2, 2003) (“Subpoenas and Con-
tempt Power”); see also 2 U.S.C. § 194 (requiring, for a contempt of
Congress prosecution, that noncompliance with a subpoena be reported to
the House or Senate, or House or Senate leadership if Congress is not in
session). The full House or Senate must then “vote in support of the
contempt citation” before the contempt may be referred to the U.S. Attor-
ney. Subpoenas and Contempt Power at 7; see also Wilson v. United
States, 369 F.2d 198, 203 (D.C. Cir. 1966) (explaining that a chamber-
wide vote provides “a ‘check’ on hasty action by a committee” and avoids
a situation where “the allegedly insulted committee . . . provide[s] the sole
legislative determination whether to initiate proceedings to prosecute for
contempt”).
Committees of Congress have issued and likely will continue to issue
subpoenas for documents and testimony to White House personnel. Less
certain, however, is whether congressional entities have any authority to
seek to compel compliance with such subpoenas in court. We believe that
congressional suits to enforce subpoenas to executive branch officials fall
outside the constitutional and statutory jurisdiction of the federal courts;
20 Where recourse has been made to the courts, the House or Senate has typically au-
thorized such an action by resolution. Todd Garvey, Cong. Research Serv., R45653,
Congressional Subpoenas: Enforcing Executive Branch Compliance 5 (Mar. 27, 2019);
see, e.g., H.R. Res. 706, 112th Cong. (2012) (authorizing suit to enforce subpoena to
Attorney General Holder). In the 116th Congress, however, the House broke from this
practice by adopting a resolution enabling committees to file suit whenever authorized by
the Bipartisan Legal Advisory Group, H.R. Res. 430 (2019), which comprises the House
Speaker and majority and minority leaderships, House Rule II.8(b).
51
45 Op. O.L.C. __ (Jan. 8, 2021)
the inherent contempt mechanism appears to have fallen into desuetude,
and would present grave constitutional concerns if deployed against
executive branch officials acting to protect the lawful prerogatives of the
Executive; and the Executive Branch has discretion to refuse to bring a
contempt of Congress criminal prosecution against one of its officials in
such circumstances.
B. Validity of Subpoenas Issued to the White House
It is the Executive Branch’s settled policy to work to accommodate
congressional requests for information in a manner consistent with the
Executive’s constitutional and statutory obligations. Historically, how-
ever, congressional subpoenas to executive branch officials have raised
a variety of separation of powers concerns. This section identifies and
discusses a number of legal defects, several of which are discussed at
greater length above, that have commonly arisen in subpoenas involv-
ing the White House. These limitations on Congress’s oversight powers
are rooted in the separation of powers, and observing them serves to
prevent Congress from “aggrandiz[ing] itself at the [Executive’s] ex-
pense.” Mazars, 140 S. Ct. at 2034.
Lack of Oversight Authority or Legitimate Legislative Purpose. As we
have discussed, all congressional oversight inquiries must be conducted in
support of Congress’s legislative authority under Article I of the Constitu-
tion. See id. at 2031–32, 2035–36; McGrain, 273 U.S. at 177. A subpoena
that seeks material or testimony on matters beyond Congress’s legislative
authority, such as the exercise of a constitutional power vested exclusive-
ly in the Executive Branch, is beyond Congress’s oversight authority. See
Barenblatt, 360 U.S. at 111–12.
Infringement of Presidential Autonomy and Confidentiality. Congres-
sional inquiries to the White House are constrained by “the Executive
Branch’s interests in maintaining the autonomy of its office and safe-
guarding the confidentiality of its communications.” Cheney, 542 U.S. at
385. In certain circumstances, compliance with a congressional subpoena
directed at the White House may unduly impair the Executive’s “ability to
discharge its constitutional responsibilities.” Id. at 382. For example,
compliance with a subpoena that is excessively broad or intrusive might
burden White House personnel to a degree that prevents them from effec-
52
Congressional Oversight of the White House
tively advising and assisting the President in the performance of his
constitutional duties. In that circumstance, it would be unconstitutional to
enforce such an unduly broad subpoena. Of course, the accommodation
process serves to ensure that congressional requests are tailored or nar-
rowed so as to avoid infringement of presidential autonomy and confiden-
tiality while satisfying Congress’s legitimate needs for relevant infor-
mation.
Immunity of White House Officials from Compelled Testimony. Re-
latedly, the White House has consistently resisted subpoenas that seek to
compel the President’s immediate advisers to testify before congressional
committees. The White House has declined to make many of the Presi-
dent’s immediate advisers available since the establishment of the EOP,
and for almost 50 years, the Department of Justice has articulated this
position as a legal immunity—that “the President and his immediate
advisers are absolutely immune from testimonial compulsion by a Con-
gressional committee on matters related to their official duties.” Immunity
of the Former Counsel, 43 Op. O.L.C. __, at *3 (internal quotation marks
omitted). 21 As Assistant Attorney General Rehnquist explained:
The President and his immediate advisers—that is, those who cus-
tomarily meet with the President on a regular or frequent basis—
should be deemed absolutely immune from testimonial compulsion
by a congressional committee. They not only may not be examined
with respect to their official duties, but they may not even be com-
pelled to appear before a congressional committee.
Memorandum for John D. Ehrlichman, Assistant to the President for
Domestic Affairs, from William H. Rehnquist, Assistant Attorney Gen-
eral, Office of Legal Counsel, Re: Power of Congressional Committee to
Compel Appearance or Testimony of “White House Staff ” at 7 (Feb. 5,
1971); see also Immunity of the Former Counsel, 43 Op. O.L.C. __, at *7–
21 Although this Office has spoken of this protection from compelled congressional
testimony in terms of “immunity,” it may equally be viewed as a limitation on the breadth
of Congress’s implied power to compel testimony. Cf. New York v. United States, 505
U.S. 144, 159 (1992) (“it makes no difference whether one views” a federalism question
as turning upon “the limits of the power delegated to the Federal Government under the
affirmative provisions of the Constitution” or the scope of the “sovereignty retained by
the States under the Tenth Amendment”).
53
45 Op. O.L.C. __ (Jan. 8, 2021)
11 (listing historical examples of immediate presidential advisers refusing
to testify); Letter for Phillip E. Areeda, Counsel to the President, from
Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, att.
at 6 (Sept. 25, 1974) (“at least since the Truman Administration,” presi-
dential advisers “have appeared before congressional committees only
where the inquiry related to their own private affairs or where they had
received Presidential permission”).
Consequently, in addition to invoking executive privilege over particu-
lar questions, the President “can also direct them not even to appear
before the committee.” Memorandum for Margaret McKenna, Deputy
Counsel to the President, from John M. Harmon, Assistant Attorney
General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advis-
ers app. at 7 (Aug. 11, 1977). For example, in 1981, Martin Anderson,
President Reagan’s assistant for policy development, refused to appear
before a House appropriations subcommittee responsible for funding his
office. White House Counsel Fred F. Fielding explained that “[f ]rom the
Administration of George Washington to the present day, it has been a
central tenet of the doctrine of separation of powers among the three
branches of the Federal Government that the President is not subject to
questioning as to the manner in which he formulates Executive policy”;
this principle “founded in practicality as well as tradition and law” “has
also been applied to senior members of the President’s personal staff, who
participate in the deliberative process through which such policies are
developed.” Letter for Edward R. Roybal, Chairman, Subcommittee on
Treasury, Postal Service, General Government, U.S. House of Representa-
tives, from Fred F. Fielding, Counsel to the President (July 8, 1981),
reprinted in H.R. Rep. No. 97-171, at 61 (1981). This testimonial im-
munity safeguards the constitutional separation of powers by protecting
the independence and autonomy of the Presidency from congressional
interference; it also “protects the Executive Branch’s strong interests in
confidentiality as well as the President’s ability to obtain sound and
candid advice.” Immunity of the Former Counsel, 43 Op. O.L.C. __, at *5;
accord Immunity of the Director of the Office of Political Strategy and
Outreach from Congressional Subpoena, 38 Op. O.L.C. 5, 7–9 (2014).
Immediate advisers to the President remain immune from compelled
testimony about their official duties in that capacity even after they leave
the White House. See Immunity of the Former Counsel, 43 Op. O.L.C. __,
54
Congressional Oversight of the White House
at *15–16 (explaining that “the risk to the separation of powers and to the
President’s autonomy posed by a former adviser’s testimony on official
matters continues after the conclusion of that adviser’s tenure”). In deter-
mining whether a person qualifies for this immunity, we have considered
the day-to-day responsibilities of the adviser and the extent of his or her
regular interaction with the President. Although most members of the
White House staff do not qualify for immunity from compelled testimony,
as a matter of policy the White House has generally opposed making any
members of the White House staff available to testify, subject to the
accommodation process.
The Executive Branch’s position on immunity is well established by
our precedent and practice, but the federal courts have looked less favora-
bly on this position in the two cases in which the House sought to test it in
court. The district courts to consider the question have held that senior
presidential advisers do not, at least as a categorical matter, enjoy abso-
lute immunity from compelled congressional testimony. See Comm. on
the Judiciary v. Miers, 558 F. Supp. 2d 53, 105–06 (D.D.C. 2008); Comm.
on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 200–14 (D.D.C. 2019).
But the first of those decisions was stayed pending appeal, Comm. on the
Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) (per curiam), and then
settled without enforcement of the subpoena, 2009 WL 3568649 (D.C.
Cir. Oct. 14, 2009). The second decision remains under review in the D.C.
Circuit. In the latter case, two judges sitting on the D.C. Circuit panel
similarly expressed doubt about the existence of this absolute immunity.
See McGahn, 951 F.3d at 538–42 (Henderson, J., concurring); id. at 558
(Rogers, J., dissenting). No precedential ruling has addressed the Execu-
tive Branch’s position, however, which for decades has governed the
Executive Branch’s negotiations with congressional committees seeking
the testimony of the President’s immediate advisers.
Exclusion of Counsel from Depositions. Although historically Con-
gress has sought to obtain testimony from executive branch officials by
means of voluntary interviews and public hearings, committees in recent
years have made increasing use of depositions. See, e.g., H.R. Res. 6,
116th Cong. § 103(a)(1) (2019) (authorizing committee chairs to “order
the taking of depositions, including pursuant to subpoena, by a member or
counsel of such committee”). And certain committees, based on the cur-
rent House rules governing depositions, have attempted to bar executive
55
45 Op. O.L.C. __ (Jan. 8, 2021)
branch witnesses from being accompanied by agency counsel at their
depositions, allowing only private counsel. 165 Cong. Rec. H1216 (daily
ed. Jan. 25, 2019) (“counsel for government agencies . . . may not at-
tend”); see also, e.g., H. Comm. on Oversight & Reform Rule 15(e),
116th Cong. (2019) (counsel “for agencies under investigation . . . may
not attend”). The Executive Branch has repeatedly resisted this practice
and sought to maintain the “[l]ongstanding Executive Branch policy and
practice” of agency counsel accompanying agency officials when they are
questioned by Congress. Letter for Henry Waxman, Chairman, Committee
on Oversight and Government Reform, U.S. House of Representatives,
from Dinah Bear, General Counsel, Council on Environmental Quality at
2 (Mar. 12, 2007).
This Office has advised that barring agency counsel from congressional
depositions is unconstitutional because it “compromise[s] the President’s
constitutional authority to control the disclosure of privileged information
and to supervise the Executive Branch’s communications with congres-
sional entities.” Exclusion of Agency Counsel, 43 Op. O.L.C. __, at *2;
see also Authority of the Department of Health and Human Services to
Pay for Private Counsel to Represent an Employee Before Congressional
Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18, 2017) (noting that
excluding agency counsel may raise “constitutional concerns” but reserv-
ing the question). This principle of course applies to depositions of White
House officials. In Exclusion of Agency Counsel, for example, we advised
that a subpoena issued by the House Committee on Oversight and Reform
to the former head of the White House Personnel Security Office was
invalid on this basis. See 43 Op. O.L.C. __, at *2, *6. Subpoenas requiring
White House personnel to testify without agency counsel are therefore
without legal effect and may not constitutionally be enforced, civilly or
criminally, against their recipients. See id. at *13–14.
Failure to Exhaust the Accommodation Process. The White House
often has responded to congressional requests by insisting that committees
engage in the accommodation process. See supra Part III.C. A congres-
sional committee may not avoid its obligation to participate in this consti-
tutionally mandated process by issuing or seeking to enforce a subpoena
before the accommodation process has run its course. Thus, White House
officials have often cited a committee’s failure to exhaust the accommo-
dation process in objecting to a congressional subpoena.
56
Congressional Oversight of the White House
The accommodation process encompasses the exhaustion principle that
we have discussed above. The White House may object to a committee’s
refusal to seek necessary information from the relevant executive branch
departments and agencies before directing requests to the White House.
See Mazars, 140 S. Ct. at 2035–36 (“Congress may not rely on the Presi-
dent’s information if other sources could reasonably provide Congress the
information it needs in light of its particular legislative objective.”).
Where a committee declines to honor its obligation to accommodate the
legitimate needs of the White House, the committee may not lawfully
begin the contempt process based upon good faith objections raised by
White House officials.
Assertion of Executive Privilege. An assertion of executive privilege
authorized by the President is a well-established ground for resisting a
congressional subpoena. See id. at 2032 (“recipients [of legislative sub-
poenas] have long been understood to retain common law and constitu-
tional privileges with respect to certain materials, such as . . . governmen-
tal communications protected by executive privilege”). Executive
privilege consists of several components, which vary in scope and the
extent of protection from disclosure. See supra Part III.B. As relevant to
the White House, a congressional committee may overcome an assertion
of executive privilege based on the presidential communications compo-
nent of the privilege only by “demonstrat[ing] that the information sought
is ‘demonstrably critical to the responsible fulfillment of the Committee’s
functions.’” Assertion of Executive Privilege for Documents Concerning
Conduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6
(1996) (Reno, Att’y Gen.) (quoting Senate Select Comm., 498 F.2d at
731). White House officials have an obligation to minimize the disclosure
of privileged information and to protect the President’s authority to de-
termine when it would be in the public interest to provide such infor-
mation as an accommodation.
This is not to say that the Executive Branch must or should claim exec-
utive privilege as a prerequisite to asserting any confidentiality interests
in connection with congressional oversight. A formal assertion of execu-
tive privilege is a last resort in the sense that it is typically only needed
when the Executive Branch has already asserted its confidentiality inter-
ests, but the accommodation process has failed to produce a resolution
and the relevant committee moves to initiate enforcement action by voting
57
45 Op. O.L.C. __ (Jan. 8, 2021)
to recommend that the recipient of the subpoena be cited for contempt of
Congress. 22 However, a formal assertion of privilege does not preclude
the possibility of further negotiation and accommodation.
Unreasonable Burden to Comply. White House officials also may de-
cline to comply fully with the terms of a subpoena based on a concern that
compliance would be unreasonably burdensome or impossible. Compared
to the departments and agencies, White House components have small
staffs who are primarily devoted to advising and assisting the President.
Exempt from FOIA, these White House components do not have trained
standing units devoted to document review and response work. Instead,
these White House components need to divert staff from their work for
the President to process congressional oversight requests. The White
House is thus less likely than other parts of the Executive Branch to have
the resources available to comply fully with subpoenas that are broad in
scope and have urgent return dates.
The federal courts’ rules of procedure for both civil and criminal cases
relieve parties of the obligation to comply with a subpoena where the
scope of the request and the return date make compliance unreasonably
burdensome or impossible. See Fed. R. Civ. P. 45(d)(3)(A) (court “must
quash or modify a subpoena that . . . fails to allow a reasonable time to
comply”); Fed. R. Crim. P. 17(c)(2) (“court may quash or modify the
subpoena if compliance would be unreasonable or oppressive”). Further, a
party may not be held in contempt for noncompliance with a subpoena
when compliance is an impossibility. See, e.g., In re Marc Rich & Co.,
736 F.2d 864, 866 (2d Cir. 1984) (noting that the district court “made it
perfectly clear that [a contemnor] simply had to produce appropriate
affidavits attesting to the impossibility of compliance and the [contempt]
judgment would be lifted”). Similar principles apply in the context of
22 When this course of events moves too quickly to allow for an adequate executive
privilege review, the President may make a “protective” assertion of executive privilege
over a class of documents in order “to ensure [his] ability to make a final decision, after
consultation with the Attorney General, as to which specific documents are deserving of a
conclusive claim of executive privilege.” Protective Assertion of Executive Privilege
Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 1, 1 (1996) (Reno,
Att’y Gen.); accord Protective Assertion of Executive Privilege Over Unredacted Mueller
Report and Related Investigative Files, 43 Op. O.L.C. __ (May 8, 2019) (Barr, Att’y
Gen.).
58
Congressional Oversight of the White House
congressional subpoenas, particularly given that “Congress and the courts
have similar subpoena powers.” Nixon v. Sirica, 487 F.2d 700, 731 (D.C.
Cir. 1973) (en banc) (per curiam).
*****
It has long been the Executive Branch’s policy to “comply with Con-
gressional requests for information to the fullest extent consistent with the
constitutional and statutory obligations of the Executive Branch.” Reagan
Memorandum at 1. But the critical functions that White House staff mem-
bers play when advising and assisting the President in the performance of
his constitutional duties require that congressional oversight of the White
House be conducted differently from oversight of the departments and
agencies. The necessary approach has been described at length in this
memorandum opinion, but the core principle is that congressional com-
mittees and the White House must work together to accommodate con-
gressional needs for information about the Executive Branch’s discharge
of statutory obligations in a manner that does not undermine the White
House staff ’s ability to advise and assist the President.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
59