Testimonial Immunity Before Congress of the Former Counsel to the President ( 2019 )

(Slip Opinion)
Testimonial Immunity Before Congress of
the Former Counsel to the President
The immunity of the President’s immediate advisers from compelled congressional
testimony on matters related to their official responsibilities has long been recognized
and arises from the fundamental workings of the separation of powers. This immunity
applies to former senior advisers such as the former White House Counsel. According-
ly, the former Counsel is not legally required to appear and testify about matters relat-
ed to his official duties as Counsel to the President.
The President does not waive an adviser’s immunity from compelled congressional
testimony by authorizing disclosure of any particular information. The disclosure’s
impact on executive privilege does not ultimately bear on any underlying immunity
from compelled testimony.
Because Congress may not constitutionally compel the former Counsel to testify about his
official duties, he may not be civilly or criminally penalized for following a presiden-
tial directive not to appear. The same rationale applies equally to an exercise of inher-
ent contempt powers against a senior aide who has complied with a presidential direc-
tion that he not provide testimony to a congressional committee.
May 20, 2019
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
On April 22, 2019, the Committee on the Judiciary of the House of
Representatives subpoenaed Donald F. McGahn II, the former Counsel to
the President, to testify about matters described in the report of Special
Counsel Robert S. Mueller, III. You have asked whether Mr. McGahn is
legally required to appear.
We provide the same answer that the Department of Justice has repeat-
edly provided for nearly five decades: Congress may not constitutionally
compel the President’s senior advisers to testify about their official duties.
This testimonial immunity is rooted in the constitutional separation of
powers and derives from the President’s independence from Congress. As
Attorney General Janet Reno explained, “[s]ubjecting a senior presidential
advisor to the congressional subpoena power would be akin to requiring
the President himself to appear before Congress on matters relating to the
performance of his constitutionally assigned executive functions.” Asser-
tion of Executive Privilege with Respect to Clemency Decision, 23 Op.
O.L.C. 1, 5 (1999) (“Reno Opinion”). Yet Congress may no more sum-
mon the President to a congressional committee room than the President
may command Members of Congress to appear at the White House. See
Memorandum for Edward C. Schmults, Deputy Attorney General, from
1
Opinions of the Office of Legal Counsel in Volume 43
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel
at 2 (July 29, 1982) (“Olson Memorandum”).
Although the White House has opposed sending senior advisers to testi-
fy for almost as long as there has been an Executive Office of the Presi-
dent, Assistant Attorney General William Rehnquist first described the
legal basis for immunity in a 1971 memorandum. See Memorandum for
John D. Ehrlichman, Assistant to the President for Domestic Affairs, from
William H. Rehnquist, Assistant Attorney General, Office of Legal Coun-
sel, Re: Power of Congressional Committee to Compel Appearance or
Testimony of “White House Staff ” (Feb. 5, 1971) (“Rehnquist Memoran-
dum”). The Rehnquist Memorandum has been consistently reaffirmed by
administrations of both political parties, most recently during the Obama
Administration. See, e.g., Immunity of the Assistant to the President and
Director of the Office of Political Strategy and Outreach from Congres-
sional Subpoena, 38 Op. O.L.C. __, *1 & n.1 (July 15, 2014) (“Immunity
of the Assistant to the President ”).
We believe that these established principles apply to bar the Committee
from compelling Mr. McGahn to testify. The Counsel to the President
clearly qualifies as a senior adviser entitled to testimonial immunity.
Attorney General Reno reached that conclusion in her 1999 opinion, and
this Office has made the same determination on at least three other occa-
sions. We have also recognized that the immunity continues to apply after
the Counsel leaves the White House. See Immunity of the Former Counsel
to the President from Compelled Congressional Testimony, 31 Op. O.L.C.
191, 192 (2007) (“Immunity of the Former Counsel ”).
The Chairman of the Committee has suggested that the justification for
Mr. McGahn’s testimonial immunity is undermined by the President’s
decision not to assert executive privilege over the redacted version of the
Special Counsel’s report that the Attorney General released last month.
See, e.g., Letter for Donald F. McGahn II, from Jerrold Nadler, Chairman,
Committee on the Judiciary, U.S. House of Representatives at 1 (May 17,
2019) (“Nadler Letter”). But the question whether an adviser need comply
with a subpoena purporting to require an appearance is different from the
question whether the adviser’s testimony would itself address privileged
matters. Therefore, the public disclosure of the Special Counsel’s report
does not have any legal bearing upon the force of the congressional sub-
poena. For these reasons, and consistent with nearly 50 years of executive
branch precedent, we conclude that Mr. McGahn is not legally required to
appear and testify before the Committee.
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Testimonial Immunity Before Congress of the Former Counsel to the President
I.
Since the 1970s, this Office has consistently advised that “the President
and his immediate advisers are absolutely immune from testimonial
compulsion by a Congressional committee” on matters related to their
official duties. Memorandum for All Heads of Offices, Divisions, Bureaus
and Boards of the Department of Justice, from John M. Harmon, Acting
Assistant Attorney General, Office of Legal Counsel, Re: Executive
Privilege at 5 (May 23, 1977) (“Harmon Memorandum”); see also
Rehnquist Memorandum at 7 (“The President and his immediate advis-
ers—that is, those who customarily meet with the President on a regular
or frequent basis—should be deemed absolutely immune from testimonial
compulsion by a congressional committee.”). Indeed, this Office has
endorsed that legal principle on more than a dozen occasions, over the
course of the last eight presidential administrations. 1
1 See Immunity of the Assistant to the President, 38 Op. O.L.C. at *1; Letter for Fred F.
Fielding, Counsel to the President, from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, Office of Legal Counsel at 1–2 (Aug. 1, 2007) (“Bradbury Letter”);
Immunity of the Former Counsel, 31 Op. O.L.C. at 191; Reno Opinion, 23 Op. O.L.C.
at 4; Immunity of the Counsel to the President from Compelled Congressional Testimony,
20 Op. O.L.C. 308, 308 (1996) (“Immunity of the Counsel to the President ”); Letter for
Jack Brooks, Chairman, Committee on the Judiciary, U.S. House of Representatives, from
Nicholas E. Calio, Assistant to the President for Legislative Affairs at 1 (June 16, 1992)
(“Calio Letter”); Olson Memorandum at 2; Memorandum for Rudolph W. Giuliani,
Associate Attorney General, from Theodore B. Olson, Assistant Attorney General, Office
of Legal Counsel, Re: Congressional Demand for Deposition of Counsel to the President
Fred F. Fielding at 2 (July 23, 1982) (“Congressional Demand for Deposition of Coun-
sel ”); Memorandum for Fred F. Fielding, Counsel to the President, from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Testimo-
ny by Presidential Assistants at 1 (Apr. 14, 1981); Memorandum for Margaret McKenna,
Deputy Counsel to the President, from John M. Harmon, Assistant Attorney General,
Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers at 5 (Aug. 11, 1977);
Harmon Memorandum at 5; Letter to Phillip E. Areeda, Counsel to the President, from
Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept. 25, 1974)
(enclosing a memorandum, hereinafter “Scalia Memorandum”); Memorandum for John
W. Dean III, Counsel to the President, from Roger C. Cramton, Assistant Attorney
General, Office of Legal Counsel, Re: Availability of Executive Privilege Where Congres-
sional Committee Seeks Testimony of Former White House Official on Advice Given
President on Official Matters at 6 (Dec. 21, 1972) (“Cramton Memorandum”); Memoran-
dum for John W. Dean III, Counsel to the President, from Ralph E. Erickson, Assistant
Attorney General, Office of Legal Counsel, Re: Appearance of Presidential Assistant
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Opinions of the Office of Legal Counsel in Volume 43
This testimonial immunity is distinct from, and broader than, executive
privilege. Like executive privilege, the immunity protects confidentiality
within the Executive Branch and the candid advice that the Supreme
Court has acknowledged is essential to presidential decision-making. See
United States v. Nixon, 418 U.S. 683, 705 (1974) (“Human experience
teaches that those who expect public dissemination of their remarks
may well temper candor with a concern for appearances and for their
own interests to the detriment of the decisionmaking process.”). But the
immunity extends beyond answers to particular questions, precluding
Congress from compelling even the appearance of a senior presidential
adviser—as a function of the independence and autonomy of the President
himself. In this regard, the President’s immediate advisers are constitu-
tionally distinct from the heads of executive departments and agencies,
whose offices are created by acts of Congress, whose appointments re-
quire the Senate’s advice and consent, and whose responsibilities entail
the administration of federal statutes. Those officers can and do testify
before Congress. The President’s immediate advisers, however, exercise
no statutory authority and instead act solely to advise and assist the Presi-
dent. Their independence from Congress reflects that of the President.
A.
The President stands at the head of a co-equal branch of government.
Yet allowing Congress to subpoena the President to appear and testify
would “promote a perception that the President is subordinate to Con-
gress, contrary to the Constitution’s separation of governmental powers
into equal and coordinate branches.” Immunity of the Assistant to the
President, 38 Op. O.L.C. at *3. As Assistant Attorney General Theodore
Olson explained in 1982: “The President is a separate branch of govern-
ment. He may not compel congressmen to appear before him. As a matter
of separation of powers, Congress may not compel him to appear before
it.” Olson Memorandum at 2. The President’s immediate advisers are an
extension of the President and are likewise entitled to absolute immunity
from compelled congressional testimony.
In 2014, our most recent opinion on the topic described the bases for
this immunity in detail. “For the President’s absolute immunity to be fully
meaningful,” we explained, “and for these separation of powers principles
Peter M. Flanigan Before a Congressional Committee at 1 (Mar. 15, 1972) (“Erickson
Memorandum”); Rehnquist Memorandum at 7.
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Testimonial Immunity Before Congress of the Former Counsel to the President
to be adequately protected, the President’s immediate advisers must
likewise have absolute immunity from congressional compulsion to testify
about matters that occur during the course of discharging their official
duties.” Immunity of the Assistant to the President, 38 Op. O.L.C. at *2.
The demands of the office require the President to rely on senior advisers
who serve “as the President’s alter ego, assisting him on a daily basis in
the formulation of executive policy and resolution of matters affecting the
military, foreign affairs, and national security and other aspects of his
discharge of his constitutional responsibilities.” Id. at *3 (quoting Reno
Opinion, 23 Op. O.L.C. at 5); see also In re Sealed Case, 121 F.3d 729,
750 (D.C. Cir. 1997) (“The President himself must make decisions relying
substantially, if not entirely, on the information and analysis supplied by
advisers.”).
There are dozens of congressional committee and subcommittees with
the authority to conduct hearings and subpoena witnesses. Recognizing a
congressional authority to compel the President’s immediate advisers to
appear and testify at the times and places of their choosing would inter-
fere directly with the President’s ability to faithfully discharge his respon-
sibilities. It would allow congressional committees to “wield their com-
pulsory power to attempt to supervise the President’s actions, or to harass
those advisers in an effort to influence their conduct, retaliate for actions
the committee disliked, or embarrass and weaken the President for parti-
san gain.” Immunity of the Assistant to the President, 38 Op. O.L.C. at *3.
And in the case of the President’s current advisers, preparing for such
examinations would force them to divert time and attention from their
duties to the President at the whim of congressional committees. This
“would risk significant congressional encroachment on, and interference
with, the President’s prerogatives and his ability to discharge his duties
with the advice and assistance of his closest advisers,” ultimately subordi-
nating senior presidential advisers to Congress rather than the President.
Id.; see also Loving v. United States, 517 U.S. 748, 757 (1996) (“Even
when a branch does not arrogate power to itself . . . the separation-of-
powers doctrine requires that a branch not impair another in the perfor-
mance of its constitutional duties.”).
The immunity of senior presidential advisers also protects the Execu-
tive Branch’s strong interests in confidentiality as well as the President’s
ability to obtain sound and candid advice. As the Supreme Court
has recognized, “[a] President and those who assist him must be free to
explore alternatives in the process of shaping policies and making deci-
sions and to do so in a way many would be unwilling to express except
5
Opinions of the Office of Legal Counsel in Volume 43
privately.” Nixon, 418 U.S. at 708. While a senior presidential adviser,
like other executive officials, could rely on executive privilege to decline
to answer specific questions at a hearing, the privilege is insufficient to
ameliorate several threats that compelled testimony poses to the inde-
pendence and candor of executive councils.
First, compelled congressional testimony “create[s] an inherent and
substantial risk of inadvertent or coerced disclosure of confidential infor-
mation,” despite the availability of claims of executive privilege with
respect to the specific questions asked during such testimony. Immunity
of the Assistant to the President, 38 Op. O.L.C. at *4. As we explained
in 2014, senior presidential advisers
could be asked, under the express or implied threat of contempt of
Congress, a wide range of unanticipated and hostile questions about
highly sensitive deliberations and communications. In the heat of the
moment, without the opportunity for careful reflection, the adviser
might have difficulty confining his remarks to those that do not re-
veal such sensitive information. Or the adviser could be reluctant to
repeatedly invoke executive privilege, even though validly applica-
ble, for fear of the congressional and media condemnation she or the
President might endure.
Id.; see also Congressional Demand for Deposition of Counsel, supra
note 1, at 2 (“A witness before a Congressional committee may be
asked—under threat of contempt—a wide range of unanticipated ques-
tions about highly sensitive deliberations and thought processes. He
therefore may be unable to confine his remarks only to those which do not
impair the deliberative process.”).
Second, even “[t]he prospect of compelled interrogation by a potential-
ly hostile congressional committee about confidential communications
with the President or among the President’s immediate staff could chill
presidential advisers from providing unpopular advice or from fully
examining an issue with the President or others.” Immunity of the Assis-
tant to the President, 38 Op. O.L.C. at *4. This is true whether or not the
President might ultimately assert executive privilege over the testimony in
question, given the adviser’s uncertainty over whether a particular matter
will become the subject of future congressional inquiry and whether the
President would choose to incur the political costs associated with invok-
ing the privilege.
Finally, given the frequency with which the testimony of a senior pres-
idential adviser—whose sole and daily responsibility is to advise and
6
Testimonial Immunity Before Congress of the Former Counsel to the President
assist the President—would fall within the scope of executive privilege,
compelling the adviser’s appearance is not likely to promote any valid
legislative interests. Coercing senior presidential advisers into situations
where they must repeatedly decline to provide answers, citing executive
privilege, would be inefficient and contrary to good-faith governance. The
President’s immediate advisers, if compelled to testify, are unlikely to
answer many of the Members’ questions, suggesting that the hearing itself
will not serve any legitimate purpose for the Committee.
B.
The Executive Branch’s position on testimonial immunity reflects his-
torical practices dating back nearly to the 1939 establishment of the
Executive Office of the President. As Assistant Attorney General Antonin
Scalia explained in a 1974 memorandum, “at least since the Truman
Administration,” presidential advisers “have appeared before congres-
sional committees only where the inquiry related to their own private
affairs or where they had received Presidential permission.” Scalia Memo-
randum, supra note 1, at 6. Although Presidents have occasionally permit-
ted such testimony, the long-standing policy has been to decline invita-
tions for voluntary appearances and to resist congressional subpoenas for
involuntary ones.
In surveying the history through 1971, Assistant Attorney General
Rehnquist described the earliest application of the policy to be inconclu-
sive and at times inconsistent. See Rehnquist Memorandum at 4–6. But
even when senior presidential advisers did appear, those appearances were
frequently accompanied by a claim of legal privilege not to do so. Assis-
tant Attorney General Rehnquist thus described the claim as an absolute
testimonial immunity for the President’s immediate advisers, see id. at 7,
and this Office has reaffirmed and expanded upon that conclusion in the
decades since. The following examples, while not exhaustive, demonstrate
the strong historical foundation for the Executive Branch’s position that
Congress may not compel the President’s senior advisers to appear and
testify.
In 1944, during the Administration of Franklin D. Roosevelt, a sub-
committee of the Senate Committee on Agriculture and Forestry sub-
poenaed Jonathan Daniels, an Administrative Assistant to President
Roosevelt, to testify about his reported attempts to compel the resigna-
tion of the Rural Electrification Administrator. See Administration of
the Rural Electrification Act: Hearing on S. 197 Before a Subcomm. of
7
Opinions of the Office of Legal Counsel in Volume 43
the S. Comm. on Agric. and Forestry, 78th Cong., pt. 3, at 611–28, 629
(1944). Mr. Daniels appeared at the hearing but advised that he could not
answer questions that would concern his confidential relationship with the
President. Id. After the hearing ended with the subcommittee threatening
contempt, Mr. Daniels wrote to the subcommittee and reiterated his belief
that the subcommittee could not compel his testimony. See id. at 740.
However, he stated that the President had determined that his testimony
would not be contrary to the public interest and that he therefore was
willing to appear in the future. See id.; see also id. at 695–740. The New
York Times reported that “[w]ith Mr. Daniels’ agreement to testify disap-
peared the possibility of using his previous defiance as the first test of the
division between executive and legislative power before the Senate.”
Daniels to Answer Senators’ Queries: President Agrees, N.Y. Times,
Mar. 5, 1944, at 1.
The first outright refusal of a presidential adviser to appear apparently
occurred during the Truman Administration, in 1948, when a special
subcommittee of the House Committee on Education and Labor twice
subpoenaed John R. Steelman, an Assistant to the President, to testify
about his communications with President Truman regarding administra-
tion of the Taft-Hartley Act during a strike. See Investigation of GSI
Strike: Hearing Before a Special Subcomm. of the H. Comm. on Educ. and
Labor, 80th Cong. 347–53 (1948). Mr. Steelman declined to comply and
returned the subpoenas with a letter stating: “[I]n each instance the Presi-
dent directed me, in view of my duties as his Assistant, not to appear
before your subcommittee.” H.R. Rep. No. 80-1595, at 3 (1948).
During the Eisenhower Administration, in 1955, a subcommittee of the
Senate Committee on the Judiciary invited the President’s Chief of Staff,
Sherman Adams, to testify about a contract between the Atomic Energy
Commission and two power companies. He declined, citing in part his
“official and confidential relationship with the President.” Power Policy,
Dixon-Yates Contract: Hearing Before the Subcomm. on Antitrust and
Monopoly of the S. Comm. on the Judiciary, 84th Cong., pt. 2, at 675–76,
779 (1955). Later, in 1958, Mr. Adams testified, with President Eisen-
hower’s approval, before a House subcommittee concerning allegations of
impropriety relating to his relationship with a New England industrialist.
Investigation of Regulatory Commissions and Agencies: Hearing Before
a Subcomm. of the H. Comm. on Interstate and Foreign Commerce, 85th
Cong., pt. 10, at 3712–40 (1958).
During the Administration of President Lyndon B. Johnson, in 1968,
the Senate Committee on the Judiciary requested the testimony of Associ-
8
Testimonial Immunity Before Congress of the Former Counsel to the President
ate Special Counsel to the President W. DeVier Pierson to testify concern-
ing the nomination of Associate Justice Abe Fortas to be Chief Justice of
the United States. The inquiry concerned whether Justice Fortas had
inappropriately participated in developing certain legislation. Mr. Pierson
responded that “[i]t has been firmly established, as a matter of principle
and precedents, that members of the President’s immediate staff shall not
appear before a Congressional committee to testify with respect to the
performance of their duties on behalf of the President.” Nominations of
Abe Fortas and Homer Thornberry: Hearing Before the S. Comm. on the
Judiciary, 90th Cong., pt. 2, at 1348 (1968). He continued: “This limita-
tion, which has been recognized by the Congress as well as the Executive,
is fundamental to our system of government. I must, therefore, respectful-
ly decline the invitation to testify in these hearings.” Id.
In 1972, during the Nixon Administration, the Senate Committee on the
Judiciary invited Peter M. Flanigan, an Assistant to the President, to
testify. This Office advised that Mr. Flanigan occupied “a close and
confidential relationship with the President and share[d] the President’s
immunity from congressional process.” Erickson Memorandum, supra
note 1, at 1. Our disposition was clear: “[I]t has been firmly established
that members of the President’s immediate staff may not appear before a
congressional committee to testify with respect to the performance of
their duties.” Id. 2
In 1979, during the Carter Administration, Special Assistant to the
President Sarah Weddington was invited to testify before the Senate
Human Resources Committee as part of a hearing on “Women in the
Coming Decade.” At the instruction of the Counsel to President, she
declined to appear, explaining that “it is White House policy for personal
aides to the President to decline invitations to testify before Congressional
committees.” Letter for Harrison A. Williams, U.S. Senate, from Sarah
Weddington, Special Assistant to the President at 1 (Jan. 31, 1979)
2 In connection with the Watergate investigations, President Nixon reached an agree-
ment with the Senate’s Watergate Select Committee to authorize current and former
White House officials to appear voluntarily and under oath before the committee in closed
session. See Remarks Announcing Procedures and Developments in Connection with the
Watergate Investigations (Apr. 17, 1973), Pub. Papers of Pres. Richard Nixon 298, 298–
99 (1973). President Nixon later determined that he would not claim executive privilege
over the subject matters of the testimony and would allow the witnesses to testify in open
hearings. See Statements About the Watergate Investigations (May 22, 1973), Pub.
Papers of Pres. Richard Nixon 547, 554 (1973). He therefore waived the testimonial
immunity to authorize those appearances.
9
Opinions of the Office of Legal Counsel in Volume 43
(“Weddington Letter”). She offered, however, to meet informally with
committee members or staff to discuss related programs and proposals.
Id. at 2.
In 1980, the Subcommittee on Investigations of the House Committee
on Armed Services requested the testimony of Deputy Assistant to the
President for National Security Affairs David Aaron concerning leaks to
The Washington Post. President Carter directed Mr. Aaron not to appear.
The Counsel to the President, Lloyd N. Cutler, explained that “Congress
has always respected the privilege of the President to decline requests that
the President himself or his immediate White House advisors appear to
testify before Congressional committees,” instead provided a sworn
affidavit by Mr. Aaron denying the allegations, and offered to make Mr.
Aaron available for an interview or deposition under oath. Letter for
Samuel S. Stratton, Chairman, Subcommittee on Investigation of the
Committee on Armed Services, U.S. House of Representatives, from
Lloyd N. Cutler, Counsel to the President at 1–2 (Sept. 30, 1980).
In 1982, during the Reagan Administration, the Senate Labor and Hu-
man Resources Committee sought the testimony of Counsel to the Presi-
dent Fred F. Fielding concerning allegations of corruption against Secre-
tary of Labor Raymond Donovan. Mr. Fielding declined to appear and
testify. See Olson Memorandum at 1–4 (explaining the legal basis for
that decision). Deputy Attorney General Edward C. Schmults notified
the Committee that, “[a]s an institutional matter, the President cannot
permit his Counsel to provide sworn testimony to the Legislative Branch
regarding the performance of his duties,” but offered to arrange for writ-
ten responses to a reasonable number of written inquiries. Letter for
Orrin G. Hatch, Chairman, Committee on Labor and Human Resources,
U.S. Senate, from Edward C. Schmults, Deputy Attorney General at 2–3
(Apr. 19, 1983) (“Schmults Letter”).
In 1992, during the George H.W. Bush Administration, the House
Committee on the Judiciary requested that C. Boyden Gray, Counsel to
the President, and Nicholas Rostow, Special Assistant to the President and
a Senior Director for Legal Affairs at the National Security Council,
testify concerning Bush Administration policies towards Iraq prior to the
first Gulf War. The White House declined, citing “the longstanding prac-
tice of the Executive Branch to decline requests for testimony by mem-
bers of the President’s personal staff.” Calio Letter, supra note 1, at 1.
In 1999, President Clinton directed Counsel to the President Beth No-
lan not to appear in response to a subpoena from the House Committee on
Government Reform and Oversight concerning a clemency decision.
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Testimonial Immunity Before Congress of the Former Counsel to the President
President Clinton relied on an opinion from Attorney General Reno that
concluded that “the Counsel serves as an immediate adviser to the Presi-
dent and is therefore immune from compelled congressional testimony”
on matters related to the performance of official duties. Reno Opinion,
23 Op. O.L.C. at 4.
In 2007, during the George W. Bush Administration, the House Com-
mittee on the Judiciary subpoenaed former Counsel to the President
Harriet Miers to testify about the Department of Justice’s decision to
request the resignation of certain United States Attorneys. President Bush
directed Ms. Miers not to testify after this Office concluded that she was
“immune from compelled congressional testimony about matters . . . that
arose during her tenure as Counsel to the President and that relate to her
official duties in that capacity.” Immunity of the Former Counsel, 31 Op.
O.L.C. at 193.
Also in 2007, the Senate Committee on the Judiciary subpoenaed the
testimony of Karl Rove, the Deputy White House Chief of Staff, on the
same subject. This Office confirmed that Mr. Rove was “immune from
compelled congressional testimony about matters (such as the U.S. Attor-
ney resignations) that arose during his tenure as an immediate presidential
adviser and that relate to his official duties in that capacity.” Bradbury
Letter, supra note 1, at 1–2. In 2008, a subcommittee of the House Com-
mittee on the Judiciary also subpoenaed Mr. Rove, and he was again
directed not to testify. See Letter for Robert D. Luskin, Patton Boggs
LLP, from Fred F. Fielding, Counsel to the President at 1 (July 9, 2008).
In 2014, during the Obama Administration, the House Committee on
Oversight and Government Reform issued a subpoena to David Simas to
testify about matters related to his official responsibilities as Assistant to
the President and Director of the Office of Political Strategy and Out-
reach. In particular, the committee requested testimony regarding “the
role and function of the White House Office of Political Strategy and
Outreach” and the question “whether the White House [was] taking ade-
quate steps to ensure that political activity by Administration officials
complies with relevant statutes, including the Hatch Act.” Immunity of the
Assistant to the President, 38 Op. O.L.C. at *1 (internal quotation marks
omitted). This Office concluded that Mr. Simas was “immune from com-
pulsion to testify before the [c]ommittee on these matters,” id., and he
declined to testify.
The foregoing historical record demonstrates that the immunity of sen-
ior presidential advisers from congressional testimony is long-standing
and has been repeatedly asserted against the requests of Congress. These
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Opinions of the Office of Legal Counsel in Volume 43
examples do not indicate that senior presidential advisers have always
declined to testify before Congress. The practice of asserting testimonial
immunity—just like the practice of asserting executive privilege—has
long reflected the “spirit of dynamic compromise” that reflects the “effi-
cient and effective functioning” of the political branches of government.
United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977).
Presidents have occasionally made senior advisers available to accommo-
date congressional requests, even while defending their legal authority to
decline such requests. But these accommodations between the political
branches do not compromise the underlying immunity of the President or
his senior presidential advisers from compelled congressional testimony.
Nor do they nullify the many instances where Presidents have successful-
ly asserted immunity and affirmatively directed their immediate aides not
to testify before Congress.
C.
While the Executive Branch has asserted for 75 years that senior presi-
dential advisers may decline to testify before Congress, and has formally
asserted an immunity for nearly 50 years, neither the Supreme Court nor
any court of appeals has specifically addressed the question. This is
because disputes over congressional demands for information from the
Executive Branch are inherently political, and the historical practice has
been to resolve such questions in the political arena. When such conflicts
have arisen, Congress has either acceded to the President’s claims of
immunity or the Executive Branch has accommodated the congressional
interest in some fashion. Only one district court has ever addressed the
testimonial immunity of the President’s senior advisers, and that decision
did not come until 2008. See Comm. on the Judiciary, U.S. House of
Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). Although the
district court held that presidential advisers were not entitled to absolute
immunity from compelled congressional testimony, the court of appeals
stayed that decision pending appeal, and the parties settled without any
appellate decision on the merits.
Nonetheless, this Office has recognized that the Executive Branch’s
long-standing position is consistent with related Supreme Court prece-
dent. See Immunity of the Assistant to the President, 38 Op. O.L.C. at *5.
In Gravel v. United States, 408 U.S. 606 (1972), the Court held that
legislative aides share in the constitutional immunity enjoyed by Members
of Congress under the Speech or Debate Clause. Id. at 616–17. The Court
12
Testimonial Immunity Before Congress of the Former Counsel to the President
reasoned that the Clause “was designed to assure a co-equal branch of
the government wide freedom of speech, debate, and deliberation without
intimidation or threats from the Executive Branch,” and “protect[ion] . . .
against prosecutions that directly impinge upon or threaten the legislative
process.” Id. at 616. Because “it is literally impossible . . . for Members
of Congress to perform their legislative tasks without the help of aides
and assistants,” the Court recognized that such aides “must be treated
as the [Members’] alter egos.” Id. at 616–17. For purposes of immunity,
the Court concluded, Members of Congress and their aides should be
“treated as one.” Id. at 616 (internal quotation marks omitted). The same
logic applies with respect to the President and his senior advisers. The
failure to recognize the extension of the President’s immunity from com-
pelled congressional testimony to senior advisers would call into question
the well-established extension of derivative immunity to congressional
staffers.
It is true that in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court
declined to extend Gravel’s alter-ego reasoning to a civil suit for damages
against senior presidential advisers, and instead concluded that such
advisers are entitled only to qualified immunity in those civil actions.
Id. at 810–11, 813–15. Harlow thus distinguished the President’s immedi-
ate advisers from the President himself, whom the Court held (in another
decision issued the same day) to be absolutely immune from civil suits
based on official acts. See Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).
Yet we have previously declined to extend Harlow to the context of
testimonial immunity because 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 Assis-
tant to the President, 38 Op. O.L.C. at *5–7. 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. at *6. In a
private lawsuit, the court “acts as a disinterested arbiter of a private dis-
pute, not as a party in interest to the very lawsuit it adjudicates,” and it “is
charged with impartially administering procedural rules designed to
protect witnesses from irrelevant, argumentative, harassing, cumulative,
privileged, and other problematic questions.” Id. By contrast, congres-
sional hearings involving the President’s immediate advisers contain none
of those assurances, and they threaten the President’s autonomy and
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Opinions of the Office of Legal Counsel in Volume 43
ability to receive sound and candid advice in a way that private civil
damages suits do not. Cf. Archibald Cox, Executive Privilege, 122 U. Pa.
L. Rev. 1383, 1429 (1974) (stating that as compared to a civil action,
“[t]he need to protect aides and subordinates from reprisals on Capitol
Hill and in the media of public debate is a thousand-fold greater in the
case of congressional hearings, which are often the preserves of individual
Senators and Congressmen not all of whom are invariably characterized
by judicious self-restraint”).
We recognize that in Miers, a federal district court read Harlow to
imply that senior presidential advisers do not enjoy absolute immunity
from congressionally compelled testimony. See Miers, 558 F. Supp. 2d
at 100–03. But we believe that the court did not adequately consider the
different and heightened separation of powers concerns bearing upon
the testimony of the President’s immediate advisers before Congress.
Moreover, the district court’s decision was stayed pending appeal. See
Comm. on the Judiciary of the U.S. House of Representatives v. Miers,
542 F.3d 909, 910–11 (D.C. Cir. 2008) (per curiam). The case settled and
the appeal was dismissed before any further action by the court of ap-
peals. Comm. on the Judiciary of the U.S. House of Representatives v.
Miers, No. 08-5357, 2009 WL 3568649, at *1 (D.C. Cir. Oct. 14, 2009).
For the reasons set forth above, and in greater detail in our 2014 opinion,
Immunity of the Assistant to the President, 38 Op. O.L.C. at *5–9, we
respectfully disagree with the district court’s conclusion in Miers and
adhere to this Office’s long-established position that the President’s
immediate advisers are absolutely immune from compelled congressional
testimony.
II.
Having reaffirmed the existence of the testimonial immunity of the
President’s immediate advisers, we now consider its application to Mr.
McGahn, the former Counsel to the President. Plainly, the Counsel to the
President qualifies as an immediate adviser to the President. As Attorney
General Reno recognized, “the Counsel serves as an immediate adviser to
the President and is therefore immune from compelled congressional
testimony.” Reno Opinion, 23 Op. O.L.C. at 4. Indeed, we have recog-
nized the Counsel’s immunity from congressional testimony on multiple
occasions. See, e.g., Immunity of the Former Counsel, 31 Op. O.L.C. at
192 (“[T]he Counsel to the President ‘serves as an immediate adviser to
the President and is therefore immune from compelled congressional
14
Testimonial Immunity Before Congress of the Former Counsel to the President
testimony.’” (quoting Reno Opinion, 23 Op. O.L.C. at 4)); Immunity of
the Counsel to the President, 20 Op. O.L.C. at 309 (“There is no question
that the Counsel to the President falls within Assistant Attorney General
Rehnquist’s description of the type of Presidential advisers who are im-
mune from testimonial compulsion.”); Congressional Demand for Deposi-
tion of Counsel, supra note 1, at 2 (“I believe the Counsel to the President
possesses an absolute privilege not to testify with regard to any matters
relating to his official duties as legal adviser to the President.”).
In addition, we have recognized that testimonial immunity continues
after the tenure of a particular Counsel to the President. As we explained
in 2007, “[s]eparation of powers principles dictate that former presidents
and former senior presidential advisers remain immune from compelled
congressional testimony about official matters that occurred during their
time as President or senior presidential advisers.” Immunity of the Former
Counsel, 31 Op. O.L.C. at 192–93. The Supreme Court has explicitly
recognized this principle in the context of executive privilege. The privi-
lege must outlast the tenure of a particular President because, absent a
guarantee of lasting confidentiality, “a President could not expect to
receive the full and frank submissions of facts and opinions upon which
effective discharge of his duties depends.” Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 449 (1977) (adopting the view of the Solicitor General); see
also United States v. Johnson, 383 U.S. 169 (1966) (applying the Speech
or Debate Clause to a former Member of Congress).
In concluding that the former Counsel to the President retained her tes-
timonial immunity, we relied upon the actions of former President Tru-
man, who explained his own refusal to appear and testify before the
House Committee on Un-American Activities in the following terms:
“[I]f the doctrine of separation of powers and the independence of the
Presidency is to have any validity at all, it must be equally applicable to
a President after his term of office has expired when he is sought to
be examined with respect to any acts occurring while he is President.”
Immunity of the Former Counsel, 31 Op. O.L.C. at 193 (quoting Texts
of Truman Letter and Velde Reply, N.Y. Times, Nov. 13, 1953, at 14
(reprinting Nov. 12, 1953 letter by President Truman)). It is “just as
important to the independence of the Executive that the actions of the
President should not be subjected to the questioning by the Congress after
he has completed his term of office as that his actions should not be
questioned while he is serving as President.” Id. (quoting Text of Address
by Truman Explaining to Nation His Actions in the White Case, N.Y.
Times, Nov. 17, 1953, at 26). Because the immunity of senior presidential
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Opinions of the Office of Legal Counsel in Volume 43
advisers derives from the immunity of the President, this same logic
extends to them as well.
Our 2007 conclusion in Immunity of the Former Counsel was consistent
with the analysis of the immunity interests of former officials during the
George H.W. Bush and Nixon Administrations. See Letter for Arthur B.
Culvahouse, O’Melveny & Myers, from C. Boyden Gray, Counsel to
the President at 1 (June 17, 1992) (“[I]t is long-standing White House
policy not to assent to formal testimony to Congressional committees by
former White House officials about matters occurring during their White
House service.”). It is true that the President does not have the same need
for the daily advice and assistance of his former advisers, as with his
current advisers, yet the confidentiality interests associated with the
advisers’ former role remain just as strong. See Cramton Memorandum,
supra note 1, at 5–6 (“If advice from a staff member were protected from
congressional and public scrutiny only for so long as the staff member
remained employed in the White House, the protection would be signifi-
cantly reduced. It would only be a question of time when staff turnovers
or a change in administration would remove the shield.”).
Even more significantly, 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. See id. at 6
(“[T]he same considerations that were persuasive to former President
Truman would apply to justify a refusal to appear by such a former staff
member, if the scope of his testimony is to be limited to his activities
while serving in that capacity.”). Accordingly, consistent with our prior
precedents, we find no material distinction between the compelled con-
gressional testimony of current and former senior advisers to the Presi-
dent. Mr. McGahn’s departure as Counsel to the President does not alter
his immunity from compelled congressional testimony on matters related
to his service to the President.
III.
In this instance, the Committee seeks to question Mr. McGahn concern-
ing matters addressed in the report of Special Counsel Robert S. Mueller,
III, on the Investigation into Russian Interference in the 2016 Presidential
Election. The Chairman of the Committee has suggested that the White
House’s voluntary cooperation with this investigation and the President’s
decision not to assert executive privilege over the Special Counsel’s
report may undermine any claim that Mr. McGahn is immune from com-
16
Testimonial Immunity Before Congress of the Former Counsel to the President
pelled testimony. Nadler Letter at 1. However, the concept of immunity is
distinct from, and broader than, the question whether executive privilege
would protect a witness’s response to any particular question. See
Rehnquist Memorandum at 4 (recognizing the “distinction between a
claim of absolute immunity from even being sworn as a witness, and a
right to claim privilege in answer certain questions in the course of one’s
testimony as a witness”). 3 The President does not waive an adviser’s
immunity from compelled congressional testimony by authorizing disclo-
sure of any particular information. To the contrary, Presidents have fre-
quently authorized aides to share information as an accommodation to
Congress, notwithstanding claims of immunity.
The immunity from compelled congressional testimony implicates fun-
damental separation of powers principles that are separate from the confi-
dentiality of specific information. See supra Part I.A. The constitutional
interest in protecting the autonomy and independence of the Presidency
remains the same no matter whether the compelled testimony from a
presidential adviser would implicate public or potentially privileged
matters. The President does not waive his own immunity from compelled
congressional testimony by making public statements on a given subject.
It follows then that the derivative immunity of senior presidential advisers
is not waived either.
Were the rule otherwise, Presidents could not offer partial accommoda-
tions to Congress without waiving all privileges or immunities bearing
upon the subject. Such a rule would severely hinder the “spirit of dynamic
compromise” and “implicit constitutional mandate to seek optimal ac-
commodation” that currently facilitates resolution of inter-branch disputes
over information. Am. Tel. & Tel. Co., 567 F.2d at 127. And such a rule
would stand in marked contrast to many instances of historical practice in
which senior advisers declined to testify before Congress, but instead
offered accommodations through informal meetings or written responses.
See, e.g., Schmults Letter at 2–3; Weddington Letter at 1–2. Yet no one
has viewed such accommodations, or the testimony of other executive
advisers on similar subjects, to constitute a general waiver of immunity.
3 The Reno Opinion described the testimonial immunity as “a separate legal basis that
would support a claim of executive privilege for the entirety of the Counsel’s testimony,
thereby eliminating any need for her to appear at the hearing.” 23 Op. O.L.C. at 4. We
think that the Rehnquist Memorandum’s distinction between an immunity and a privilege
reflects the more precise formulation, but the distinction appears to be merely a semantic
one.
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Opinions of the Office of Legal Counsel in Volume 43
The Chairman’s suggestion that Mr. McGahn can no longer claim im-
munity appears to be based upon the assumption that the President waived
executive privilege by authorizing Mr. McGahn and his senior aides to
cooperate with the Special Counsel’s investigation. But the question of
privilege is distinct from the issue of immunity. And in any event, the
premise of the Committee’s position is incorrect. The sharing of infor-
mation between one arm of the Executive Branch and another does not
compromise the President’s interest in confidentiality. Indeed, in Nixon v.
Administrator of General Services, the Supreme Court rejected a separa-
tion of powers objection to the disclosure of presumptively confidential
information because “[t]he Executive Branch remains in full control of the
Presidential materials, and . . . the materials can be released only when
release is not barred by some applicable privilege inherent in that branch.”
433 U.S. at 444. Information that was shared with the Special Counsel
was shared within the Executive Branch. Such voluntary sharing does not
waive confidentiality or the underlying privilege.
This conclusion is consistent with past assertions of executive privi-
lege. In Assertion of Executive Privilege Concerning the Special Coun-
sel’s Interviews of the Vice President and Senior White House Staff,
32 Op. O.L.C. 7 (2008), Attorney General Michael Mukasey advised that
the President could assert executive privilege against Congress over
memoranda recording interviews of White House witnesses with Depart-
ment of Justice investigators. Id. at 9–13. As he explained, “[w]ere future
presidents, vice presidents or White House staff to perceive that such
voluntary cooperation would create records that would likely be made
available to Congress (and then possibly disclosed publicly outside of
judicial proceedings such as a trial), there would be an unacceptable risk
that such knowledge could adversely impact their willingness to cooperate
fully and candidly in a voluntary interview.” Id. at 11. Implicit in that
explanation was the understanding that the White House’s voluntary
cooperation with the Department’s investigation did not constitute a
waiver of privilege against third parties outside the Executive Branch. So,
too, the White House’s voluntary cooperation with the Special Counsel’s
investigation did not effect a waiver of privilege, much less a waiver of
testimonial immunity.
In contrast with the White House’s cooperation with the Special Coun-
sel, the Attorney General’s public release of a redacted version of the
Special Counsel’s report (with the President’s consent) does extinguish
the Executive Branch’s confidentiality interests in the precise information
that has already been revealed. But, as the D.C. Circuit has held, the
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Testimonial Immunity Before Congress of the Former Counsel to the President
“release of a document only waives [executive] privileges for the docu-
ment or information specifically released, and not for related materials.”
In re Sealed Case, 121 F.3d at 741; see id. (“[An] all-or-nothing approach
has not been adopted with regard to executive privileges generally, or to
the deliberative process privilege in particular.”). As Assistant Attorney
General Scalia explained, the purposes underlying executive privilege
“would be jeopardized if harmful information had to be disclosed merely
because the President permitted the release of related information that
could be revealed safely.” Scalia Memorandum, supra note 1, at 6–7.
Such a result “would have the effect of requiring the concealment of much
information which would be released, merely because it was connected
with sensitive information.” Id. at 7.
Thus, the public disclosure of particular information does not waive the
Executive Branch’s confidentiality interests over the subject matters
involved in the prior disclosure. See, e.g., Assertion of Executive Privilege
Concerning the Dismissal and Replacement of U.S. Attorneys, 31 Op.
O.L.C. 1, 8 (2007) (opinion of Acting Attorney General Paul Clement)
(“The Department[ of Justice]’s accommodation with respect to some
White House-Department communications does not constitute a waiver
and does not preclude the President from asserting executive privilege
with respect to White House materials or testimony concerning such
communications.”). Consequently, the public disclosure of the Special
Counsel’s report did not constitute a general waiver concerning Mr.
McGahn’s communications with the President on those subjects or on any
other subjects. And in any event, as discussed above, the disclosure’s
impact on executive privilege with respect to particular subjects does not
ultimately bear on Mr. McGahn’s underlying immunity from compelled
testimony.
IV.
Because Congress may not constitutionally compel Mr. McGahn to tes-
tify about his official duties, the President may lawfully direct him not to
appear in response to the House Judiciary Committee’s subpoena. Should
the President provide that direction, Mr. McGahn may not constitutionally
be penalized, civilly or criminally, for following it.
The Department of Justice has long recognized “that the contempt of
Congress statute was not intended to apply and could not constitutionally
be applied to an Executive Branch official who asserts the President’s
claim of executive privilege.” Prosecution for Contempt of Congress of
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Opinions of the Office of Legal Counsel in Volume 43
an Executive Branch Official Who Has Asserted a Claim of Executive
Privilege, 8 Op. O.L.C. 101, 102 (1984) (“Prosecution for Contempt ”);
see also Application of 28 U.S.C. § 458 to Presidential Appointment of
Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (“[T]he criminal con-
tempt of Congress statute does not apply to the President or presidential
subordinates who assert executive privilege.”). As Assistant Attorney
General Olson explained, “the Constitution does not permit Congress to
make it a crime for an official to assist the President in asserting a consti-
tutional privilege that is an integral part of the President’s responsibilities
under the Constitution.” Prosecution for Contempt, 8 Op. O.L.C. at 140.
To do so “would be to deter the President from asserting executive privi-
lege and to make it difficult for him to enlist the aid of his subordinates in
the process,” thereby “burden[ing] and immeasurably impair[ing] the
President’s ability to fulfill his constitutional duties.” Id. at 134, 137.
Assistant Attorney General Walter Dellinger adhered to that reasoning in
1995, recounting that the “application of the contempt statute against an
assertion of executive privilege would seriously disrupt the balance be-
tween the President and Congress.” Application of 28 U.S.C. § 458 to
Presidential Appointment of Federal Judges, 19 Op. O.L.C. at 356.
This Office has further confirmed that the same “principles . . . similar-
ly shield a current or former senior adviser to the President from prosecu-
tion for lawfully invoking his or her immunity from compelled congres-
sional testimony.” Whether the Department of Justice May Prosecute
White House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 68
(2008). Subjecting a senior presidential adviser to prosecution for assert-
ing a good-faith claim of testimonial immunity would equally impose
upon the President “‘the untenable position of having to place a subordi-
nate at the risk of a criminal conviction and possible jail sentence in order
for the President to exercise a responsibility he found necessary to the
performance of his constitutional duty.’” Id. (quoting Prosecution for
Contempt, 8 Op. O.L.C. at 136). In sum, “‘[t]o seek criminal punishment
for those who have acted to aid the President’s performance of his duty
would be . . . inconsistent with the Constitution.’” Id. at 69 (quoting
Prosecution for Contempt, 8 Op. O.L.C. at 142).
We similarly believe that Congress could not lawfully exercise any
inherent contempt authority against Mr. McGahn for asserting immunity.
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 immeasura-
20
Testimonial Immunity Before Congress of the Former Counsel to the President
bly burden the President’s ability to assert the privilege and to carry out
his constitutional functions.” Prosecution for Contempt, 8 Op. O.L.C. at
136. This is so because, as Assistant Attorney General Olson concluded,
“the same reasoning that suggests that the [criminal contempt] statute
could not constitutionally be applied against a Presidential assertion of
privilege applies to Congress’ inherent contempt powers as well.” Id. at
140 n.42. Congress may not impede the President’s ability to carry out his
constitutionally assigned functions by “arrest[ing], bring[ing] to trial, and
punish[ing] an executive official who asserted a Presidential claim of
executive privilege.” Id. The same rationale applies equally to an exercise
of inherent contempt powers against a senior aide who has complied with
a presidential direction that he not provide testimony to a congressional
committee.
V.
The immunity of the President’s immediate advisers from compelled
congressional testimony on matters related to their official responsibilities
has long been recognized and arises from the fundamental workings of the
separation of powers. This immunity applies to the former White House
Counsel. Accordingly, Mr. McGahn is not legally required to appear and
testify about matters related to his official duties as Counsel to the Presi-
dent.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
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