As we saw in my last post, for presidential advisers to have testimonial immunity it is necessary but not sufficient that the president himself have such immunity. Assistant Attorney General Rehnquist noted in 1971 that “[e]veryone associated with the Executive Branch from [the Aaron Burr treason trial] until now, so far as I know, has taken the position that the President himself is absolutely immune from subpoena by anyone . . .” Rehnquist Memorandum at 3. Of course, taking a position is not the same thing as establishing that the position is correct.
OLC’s current justification for the president’s immunity consists of little more than the bare assertion that “Congress may no more summon the President to a congressional committee room than the President may command Members of Congress to appear at the White House.” 5-20-19 OLC Opinion at 1. I have three observations about this assertion. First, it should be noted that it is more modest than the position stated by Rehnquist in 1971. The latter was that the president was immune from “subpoena by anyone.” OLC today refers only to subpoena by Congress, although its reasoning, premised on the fact that the “President stands at the head of a co-equal branch of government,” would seem to apply equally to judicial subpoenas. See 5-20-19 OLC Opinion at 4. By confining its claim, OLC avoids the need to deal with the Supreme Court’s decision in United States v. Nixon, 418 U.S. 683 (1974), which suggests that “even the President may not be absolutely immune from compulsory process more generally.” Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, __ (2008).
Second, as others have noted, the attempt to equate congressional and presidential subpoena authority makes no sense because the president has no subpoena authority and thus lacks the power to command anyone (other than, I suppose, his subordinates) to appear at the White House. The president’s inability to compel the appearance of members of the Congress therefore says nothing about the subpoena authority of congressional committees.
Third, the comparison makes even less sense when one considers that members of Congress have no immunity from subpoenas themselves. Representatives and senators have been required to appear and testify in many types of proceedings despite the existence of an express constitutional privilege against arrest which was designed to allow them to carry out their legislative duties without interruption while Congress is in session. Though no less authorities than Thomas Jefferson and Joseph Story believed this provision gave members a (temporary) immunity from subpoenas ad testificandum, this position has never been accepted by the courts. See 2 Deschler’s Precedents of the U.S. House of Representatives 817 (“The rulings of the courts, both state and federal, have uniformly expressed the principle that a summons or subpena is not an arrest, and is not precluded by the Constitution.”). Similarly, although members have a privilege against being questioned about legislative activities under the Speech or Debate Clause, this does not equate to an absolute testimonial immunity or the right to refuse to appear when subpoenaed. See Miers, 558 F.Supp.2d at __ (“Members cannot simply assert, without more, that the Speech or Debate Clause shields their activities and thereby preclude all further inquiry.”) Thus, OLC’s comparison would seem to support, rather than refute, the president’s amenability to subpoena. Id.
Interestingly, while OLC relies on many of its prior memoranda in support of its contention that presidential advisers have absolute testimonial immunity, it fails to mention a 1973 memorandum which expresses doubt as to whether even the president himself has such immunity. After discussing the dispute between Chief Justice Marshall and President Jefferson over whether the latter could be required to give evidence in the Aaron Burr treason trial, the memorandum notes that “[m]odern legal discussion of the power of the courts to subpoena the President still adheres to Chief Justice Marshall’s view that the President is not exempt from judicial process, in particular the judicial power compel anyone to give testimony.” Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Presidential Amenability to Judicial Subpoenas 5 (June 25, 1973) (available in OLC FOIA electronic reading room) (hereinafter “Dixon memorandum”). It goes on to note that it is “questionable whether there is adequate precedent for the proposition that the constitutional doctrine of separation of powers precludes vel non the issuance of judicial subpoenas to the President.” Dixon Memorandum at 7.
The same memorandum suggests that any presidential immunity or protection against subpoenas may be limited in cases of alleged official wrongdoing:
A special situation exists with respect to claims of privilege where charges of official wrongdoings are concerned. There appears to be no pertinent precedent as to whether a President can claim privilege in judicial proceedings in that situation. There have been, however, several statements made by Presidents and Attorneys General that privilege will not be invoked vis-a-vis Congress where charges of official wrongdoing are involved. Significantly those statements have usually been made [in the context of] the Congressional power of impeachment.
Dixon Memorandum at 12 (citations omitted) (emphasis added).
Dixon concludes that “the subpoenaing of a President involves a number of complex issues depending on the circumstances in which and the purposes for which the subpoena is issued.” Dixon Memorandum at 13. For example, “it could be argued that a President will not or cannot claim privilege where official misconduct is the subject matter of grand jury proceedings or of a criminal prosecution.” Id. Moreover, “it may well be that a President will not or even may not claim privilege where Congress performs its specific constitutional responsibilities in the field of impeachment.” Id. These observations, it should be noted, precede the Supreme Court’s decision in United States v. Nixon, which only bolsters Dixon’s skepticism regarding the president’s absolute immunity from subpoena.
While OLC’s position on presidential testimonial immunity has little support in judicial precedent or legal doctrine, historical practice is more favorable. As Andy Wright details here, presidents rarely have testified in judicial or congressional proceedings and when they have done so it is generally with an accommodation to indicate the voluntariness of their cooperation. Perhaps most strikingly, neither Andrew Johnson nor Bill Clinton testified in their impeachment trials, nor did Nixon testify in the House Judiciary Committee inquiry regarding his impeachment. I would summarize this history as reflecting a strong constitutional convention against forcing a president to testify in any but the most compelling circumstances.
All this being said, there is no direct judicial precedent on the question of whether a sitting president is entitled to absolute testimonial immunity. I tend to agree with Steve Vladeck and Ben Wittes that it is more likely than not that the Supreme Court would reject a claim of such immunity, but I also agree with them that “it is not a sure thing, and the President has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.” There is particular uncertainty as to how newer members of the Court may view the president’s claim of absolute testimonial immunity (and some reason to believe that Justice Kavanaugh, in particular, may be sympathetic to such a claim).
What About Former Presidents?
On the other hand, it seems to me quite unlikely the Court would recognize testimonial immunity for former presidents. The sole “precedent” for the alleged immunity of a former president is Harry Truman’s refusal in 1953 to appear before the House Un-American Activities Committee in response to a subpoena. OLC cites Truman’s response to HUAC that 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.” 5-20-19 OLC Opinion at 15. (We will assume, charitably, that Truman meant that the president should not be subject to compulsory questioning about his actions, rather than that his actions “should not be questioned.).
There are several problems with this position. First, it disregards the fact that former presidents have in fact testified before Congress. As Wright explains, an 1848 House investigation into financial improprieties resulted in subpoenas to former Presidents John Tyler and John Quincy Adams, both of whom cooperated with the investigation. In contrast, the then-sitting president, James Polk, declined to cooperate. Notably, OLC does not discuss this episode, which suggests that former presidents were considered to be private citizens, rather than a separate class of nobility. Cf. Dixon Memorandum at 7 (noting that “while in England certain members of the nobility could be tried only in the House of Lords, or before a jury of their peers, they could [still] be summoned as witnesses before any judicial tribunal”).
Second, the notion that it is “just as important” to recognize testimonial immunity for a former president as for a sitting president is obviously wrong. A primary, if not the primary, justification offered in support of testimonial immunity is to protect the president’s time and to prevent interference with his ability to perform his constitutional responsibilities. These considerations are simply inapplicable to a former president.
Third, to the extent OLC attempts to ground testimonial immunity in the need for executive branch confidentiality, this consideration is particularly weak for former presidents. It may be true, as OLC asserts, that a president’s confidentiality interests with respect to his former advisers are just as strong as with respect to his current advisers, but this observation applies to the interests of the current president. Once an administration is over, confidentiality interests diminish over time. See Nixon v. Administrator of GSA, 433 U.S. 425, 451 (1977) (“The expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office.”). Thus, the confidentiality interests of a former president are less than those of the incumbent. In any event, it is hard to see how confidentiality interests would require an absolute testimonial immunity since the former president would remain free to decline to answer any questions that he believed to infringe on executive branch confidentiality.
This leaves only one consideration that could justify recognizing an absolute testimonial for former presidents. OLC refers to this as the need to protect the president’s “independence” and “autonomy,” but in the case of a former president this can mean nothing other than a quasi-royal elevation of his person and dignity above the ordinary obligations of private citizenship. As the cases of former Presidents Tyler and John Quincy Adams show, this is not the traditional view of the presidency in a constitutional republic.
To be sure, it has not been congressional practice to drag former presidents before Congress simply to be questioned about controversial policies or decisions, nor would this be a desirable practice to start. One might argue that Congress has tacitly accepted the proposition that former presidents are entitled to a qualified testimonial immunity (or, as suggested earlier, that they are protected by a constitutional convention or norm) which prevents them from being called to testify except in compelling or extraordinary circumstances. There is, however, little or no justification for affording former presidents an absolute testimonial immunity.
Conclusion
We can draw three conclusions from the foregoing. First, the question of whether a sitting president is entitled to testimonial immunity is an open one (though, in my opinion, the stronger argument is against it). Second, even if the president is generally entitled to testimonial immunity in congressional proceedings, this does not necessarily apply in impeachment proceedings, as OLC itself has recognized. Third, there is no serious or persuasive argument for affording absolute testimonial immunity to a former president.
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