OLC’s Fig Leaf Can’t Cover McGahn

Now we come to the crux of the matter, OLC’s claim that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” 5-20-19 OLC Opinion at 1. Specifically, OLC contends that Don McGahn, the former White House counsel, may not be compelled to testify before the House Judiciary Committee about matters described in the report of Special Counsel Robert Mueller. See id. at 1-2. These include, for example, the question whether McGahn truthfully told the special counsel that President Trump directed him to fire the special counsel or whether McGahn lied about this, as Trump apparently now alleges. See Mueller Report, vol. II, at 84-87. For the reasons that follow, OLC (sometimes known as the Keeper of the Presidential Fig Leaf) is wrong.

Adam White, a keen legal observer who unaccountably agrees with OLC’s analysis, summarizes its reasoning as follows:

As OLC explained, the president’s core advisors are entitled to absolute immunity from compelled appearances before Congress; they are his alter egos, and just as Congress cannot force the president himself to testify before its committees, nor can Congress force his closest advisors to appear. Such compelled testimony would subjugate the president to Congress; it would significantly impair (if not destroy altogether) the president’s ability to receive candid advice from his closest advisors, and it would enable congressional committees to prevent the president’s advisors from actually doing their own work for the president.

In essence, OLC offers a syllogism (1) the president has absolute testimonial immunity; (2) his closest advisers are his “alter egos”; and hence (3) his advisers also have absolute immunity. As we have already seen, however, it is far from established that the president himself has absolute testimonial immunity. Moreover, there is nothing other than OLC’s say-so to support the proposition that White House aides should be considered the president’s “alter egos’ and, in any event, this assertion does little more than assume the conclusion. Saying that an aide is the president’s “alter ego” is simply another way of saying that the aide is entitled to the same immunity as the president. However, as Assistant Attorney General Rehnquist recognized in 1971, the (assumed) fact that the president enjoys an immunity “does not answer the question as to whether his immediate advisers are likewise exempt.” Rehnquist Memorandum at 3.

As it happens, since 1971 the Supreme Court has addressed this very question in a closely related context. In a 1982 opinion joined by Justice Rehnquist, the Court held that senior presidential advisers were not entitled to absolute immunity in civil actions arising out of their official activities, even though the Court held in a companion case that the president was entitled to such immunity. The Court did not dispute “the importance to the President of loyal and efficient subordinates in executing his duties of office,” but found this was simply not enough to justify extending absolute immunity to presidential aides. Harlow v. Fitzgerald, 457 U.S. 800, 808-09 (1982); see also Nixon v. Fitzgerald, 457 U.S. 731 (1982) (holding the president is absolutely immune from civil suits arising from his official duties).

Harlow not only establishes that the president’s advisers may be sued for civil damages, but, as OLC tacitly concedes, it also demonstrates that they can be compelled to testify in judicial proceedings. It would make no sense to claim that White House aides were immune from giving testimony in civil damages actions in which they were the defendants and, in any event, in such cases they would be “compelled” to testify as a practical matter to defend their conduct. Furthermore, despite the numerous criminal investigations that have involved White House aides over the past decades (to name just a few that come to mind in addition to the Mueller probe, Watergate, Iran-Contra, Whitewater, the 1996 campaign fundraising scandal, and the Valerie Plame leak matter), as far as I know OLC has not contended that presidential advisers are immune from testifying in either grand jury proceedings or criminal prosecutions. Thus, there seems to be no serious contention that White House aides have any immunity from testifying in judicial proceedings.

Harlow would seem to be fatal to OLC’s argument. Leaving aside the difficulty of explaining why the Constitution would require that presidential advisers have immunity in congressional, but not judicial, proceedings, Harlow establishes that these advisers are not constitutionally entitled to an immunity simply because it is available to the president. This might seem like a self-evident point (it was to Rehnquist even while he still worked at OLC), but OLC’s syllogism doesn’t work once it is recognized. See Comm. on the Judiciary, U.S. House of Representatives, v. Miers, 558 F.Supp.2d 53, __ (D.D.C. 2008) (executive branch’s argument for presidential adviser immunity from compelled congressional testimony is “virtually foreclosed” by Harlow).

OLC tries to “distinguish” Harlow on the ground that congressional proceedings are fundamentally different than judicial proceedings. But this misses the main point. Harlow doesn’t preclude the possibility White House aides (or executive officials generally) will be treated differently than ordinary citizens in certain situations, but it does preclude the argument that they are entitled to special treatment just because the president is. Thus, even if we grant the proposition that the president is immune from compelled congressional testimony (which, unlike his immunity from civil actions, has not been approved by the Supreme Court or any other court), this is insufficient to establish that his aides are.

White says “[n]o court has ever held that all presidential advisors must testify when subpoenaed.” This is true in the sense that no court has ever held that all firefighters must testify when subpoenaed. But the Supreme Court has made clear that all citizens have a duty to comply with congressional subpoenas:

A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.

United States v. Bryan, 339 U.S. 323, 331 (1950) (emphasis added) (upholding a contempt conviction for failure to comply with a congressional subpoena). The relevant fact, then, is that no court has ever held that presidential advisers have immunity from this “public duty,” and the only court (Judge Bates in the Miers case) to directly address the claimed immunity has roundly rejected it.

Indeed, no court has ever held that any class of citizens or officials is categorically immune from compelled congressional testimony. Witnesses can assert the Fifth Amendment in congressional proceedings, for example, but that does not excuse them from the duty of appearing to invoke the privilege in response to specific questions. Therefore, OLC carries a heavy burden to establish that senior presidential advisers are constitutionally distinct from ordinary citizens and other executive branch officials in such a way that they are entitled to this unique immunity. It must carry this burden, moreover, without the benefit of any supporting authority (other than its own prior memoranda) because, as Judge Bates points out, “[t]he Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context.” Miers, 558 F.Supp.2d at __.

It is also noteworthy that despite the fact that OLC refers to “absolute immunity from compelled congressional testimony,” it acknowledges that this immunity does not extend to testimony regarding the adviser’s “private affairs.” 5-20-19 OLC Opinion at 4, 7. OLC does not elaborate on what it means by this exception (which it refers to simply by quoting an apparently unpublished 1974 memorandum by Assistant Attorney General Antonin Scalia). However, as we saw in an earlier post, in his 1971 congressional testimony, Rehnquist associated this exception with two instances (Donald Dawson in 1951 and Sherman Adams in 1958) in which senior White House officials were alleged to have misused their offices for personal gain. These are hardly “private affairs” as that term would ordinarily be understood. And regardless of what one calls it, OLC fails to explain why the Constitution permits compelled congressional testimony in this instance and not in other cases where a senior adviser has important and non-privileged information that Congress needs.

OLC’s Policy Rationales

As White notes, OLC offers three basic reasons why senior presidential aides must have testimonial immunity in congressional proceedings. Absent such immunity, OLC maintains, (1) the president would be “subjugated” to Congress; (2) the president’s ability to receive candid advice from his closest advisers would be impaired or destroyed; and (3) committees could interfere with the work that these advisers must perform for the president. Let’s take these in reverse order.

Interference with the Work of Presidential Advisers.You may recall that Rehnquist’s 1971 memorandum offered only one justification for deeming senior presidential advisers as “absolutely immune” from compelled congressional testimony, namely the fact that they “are presumptively available to the President 24 hours a day.” Rehnquist Memorandum at 7. If this is interpreted as a statement about constitutional requirements, it would suggest that the president’s advisers must be immune from all proceedings, judicial or congressional, about all subjects, official or personal. Presumably they would have to be exempt from jury duty and traffic citations as well. Heaven forbid that the president’s aides be pulled over for speeding whilst on route to an important meeting.

I do not believe, however, that this is what Rehnquist was suggesting. Instead, as discussed in a prior post, it is more likely that he was proposing a prophylactic policy under which the executive branch would treat the president’s senior advisers as presumptively immune from testifying before Congress, but would nonetheless treat each request or demand for testimony on a case-by-case basis.

Whatever Rehnquist’s intent, however, his rationale cannot support a claim of constitutional immunity. When the Brownlow Committee proposed the president “be given a small number of executive assistants who would be his direct aides in dealing with the managerial agencies and administrative departments of the Government,” it did not suggest that Congress was constitutionally required to provide the president with such assistants, much less that they had to be made available 24 hours a day. See Report of the President’s Committee on Administrative Management 5 (Jan. 1937). If Congress can choose not to fund such assistants at all, it is hard to see how it is prohibited from inquiring of these assistants to ensure, for example, that their activities are consistent with the purposes of the funding that is provided. See id. (explaining the proposed aides “would have no power to make decisions or issue instructions in their own right”).

OLC argues, however, that congressional proceedings are so burdensome that senior presidential advisers must be absolutely immune from any congressional inquiry. See 5-20-19 OLC Opinion at 5 (“There are dozens of congressional committees and subcommittees with the authority to conduct hearings and subpoena witnesses [so] [r]ecognizing a congressional authority to compel the President’s immediate advisers to appear and testify at the times and places of their choosing would interfere directly with the President’s ability to faithfully discharge his responsibilities.”). OLC claims that otherwise the president’s advisers would have to “divert time and attention from their duties to the President at the whim of congressional committees.” Id.

If absolute immunity were necessary to avert these dire consequences, it could hardly be limited to the president’s immediate advisers. In the midst of the current situation with Iran, for example, the secretary of defense (or the acting secretary, as the case may be) and the director of the Central Intelligence Agency are at least as critical to the president’s ability to discharge his responsibilities as any White House aide. See generally, Harlow, 457 U.S. at 809 (“Members of the Cabinet are direct subordinates of the President, frequently with greater responsibilities, both to the President and to the Nation, than White House staff.”). As in Harlow, there is no need to grant immunity to presidential advisers that is not available to cabinet officers and other executive officials.

Although OLC acknowledges that cabinet officers and other executive branch officials have no testimonial immunity, it provides no evidence that congressional committees have summoned them on “whim” or have used the power of testimonial compulsion to interfere with their duties. Similarly, there is no evidence that Congress has or would use its power to interfere with the duties of presidential advisers. As Judge Bates noted, “in an environment where there is no judicial support whatsoever for the Executive’s claim of absolute immunity, the historical record . . . does not reflect the wholesale compulsion by Congress of testimony from senior presidential advisors that the Executive fears.” Miers, 558 F.Supp.2d at __ (emphasis in original). In the more than a decade that has elapsed since the Miers decision, there has been no rash of presidential aides being required to testify on the Hill either.

Finally, even if there were something to OLC’s concern, it obviously has no application to former presidential aides like McGahn.

Impairment of the President’s ability to obtain candid advice. OLC contends that absolute testimonial immunity “protects the Executive Branch’s strong interests in confidentiality as well as the President’s ability to obtain sound and candid advice.” 5-20-19 OLC Opinion at 5. Merely refusing to answer specific questions that implicate executive privilege, it argues, is insufficient.

For one thing, presidential advisers will allegedly be hesitant to provide candid advice if they fear they could be dragged before congressional committees to testify about it. The potential protection of executive privilege is not enough “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 invoking the privilege.” 5-20-19 OLC Opinion at 6.

This argument is unpersuasive. Like the prior rationale, it would suggest that cabinet officers and others who advise the president should also have absolute immunity because they too might be concerned that their advice will subject them to invasive questioning. Yet the Supreme Court held in United States v. Nixon, that the executive branch’s interest in confidentiality and candid advice did not justify an absolute privilege, but only a presumptive privilege that can be overcome by a sufficient showing of need for the information. OLC’s doctrine of absolute immunity is effectively an effort to end run Nixon’s holding and establish a doctrine of absolute privilege for presidential advisers. See Miers, 558 F.Supp.2d at __ (“Permitting the Executive to determine the limits of its own privilege would impermissibly transform the presumptive privilege into an absolute one, yet that is what the Executive seeks through its assertion of . . . absolute immunity from compulsory process.”).

Adopting a doctrine of absolute immunity, moreover, would not guarantee presidential advisers that their advice would never be disclosed. In the first place, presidents can and have declined to invoke testimonial immunity just as they have declined to invoke executive privilege. Second, the asserted absolute immunity only applies to oral testimony. It provides no additional protection against disclosure of advice that has been committed to writing. Third, even under OLC’s theory, presidential advisers would still be subject to testimonial compulsion regarding matters unrelated to their official duties (as when former presidential aide Hope Hicks recently testified about her activities on the Trump presidential campaign and other matters before and after her White House tenure) and their “private affairs” while in office.

OLC also argues that absent absolute immunity, there would be a substantial risk of inadvertent or coerced disclosure of confidential or privileged information. 5-20-19 OLC Opinion at 6. Its evidence for this consists solely of an earlier OLC memorandum which makes the same claim. It provides no evidence that this risk exists and no explanation as to why the risk would be greater for senior presidential advisers than for any other witness who might be asked about confidential or privileged matters. Cabinet officers and other executive branch officials, unlike White House aides, routinely appear before congressional committees, and yet they seem to be able to protect confidential presidential communications, classified information and other executive branch secrets without much difficulty.

Finally, OLC asserts that “given the frequency with which the testimony of a senior presidential adviser—whose sole and daily responsibility is to advise and 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.” 5-20-19 OLC Opinion at 6-7.  This statement has the benefit of being true, but it also demonstrates why an absolute testimonial immunity is unwarranted. Congress rarely calls presidential advisers to testify in ordinary oversight hearings precisely because their testimony is likely to be privileged and therefore “not likely” to advance any legislative interests. However, in certain situations, such as where the adviser has unique information as a fact witness or where there are significant issues of wrongdoing, Congress has demanded (and the White House has generally acceded) that senior presidential advisers testify.

In McGahn’s case, OLC acknowledges that the subject matter of his testimony is set forth in the Special Counsel’s report, yet it advances no argument that this testimony would be protected by executive privilege. It does assert that the report constitutes a waiver of executive privilege only for the specific information released, not “a general waiver concerning with Mr. McGahn’s communications with the President on those subjects or any other subjects.” 5-20-19 OLC Opinion at 19. However, it notably does not analyze the subject matter of the report or the House Judiciary Committee’s interest in that subject matter to determine whether executive privilege applies or whether the committee’s need for the information outweighs the confidentiality interests of the executive branch. Compare Assertion of Executive Privilege with Respect to Clemency Decision, 23 OLC 1, 2-4 (Sept. 16, 1999) (first addressing the executive privilege issue before determining that the counsel to the president would be absolutely immune from appearing even if some of her testimony might be non-privileged).

In essence, OLC’s argument is that even if Congress has a compelling need for nonprivileged factual information that only McGahn possesses, it should be deprived of this information because under ordinary circumstances it is “not likely” the White House counsel would have such information. To state this argument should be to refute it.

“Subjugation” to Congress. OLC contends that allowing Congress to subpoena the president would promote the perception that he is subordinate to Congress. 5-20-19 OLC Opinion at 4. This is an inherently subjective assertion which is hard to evaluate. It is also somewhat unclear what exactly is promoting the “perception” of subordination. Is it the fact that Congress would subpoena the president in the first place, thus asserting the power to command him to take a particular action? If so, then neither Congress nor the judiciary would be able to subpoena the president to provide evidence at all, a position rejected by the Supreme Court in United States v. Nixon.

As a matter of historical practice, sitting presidents have not been asked to testify in either congressional or judicial proceedings except in extraordinary circumstances. Undoubtedly this in part reflects a desire to respect the president’s dignity and autonomy. However, it is doubtful whether this should be viewed as reflecting a constitutional principle, rather than simply as a matter of comity.

Regardless, there is no coherent constitutional principle that could be invoked to justify an equivalent protection for the president’s staff. To begin with, as already noted, nothing in the Constitution requires the president to have paid advisers in the first place. Every president has relied on numerous sources for advice, including close friends, family members, political allies and other confidantes not on the government payroll. Unless all of these advisers also enjoy testimonial immunity, it is difficult to see why a group of paid advisers would.

If the “anti-subjugation” principle were taken seriously, it should apply based on a witness’s actual or perceived “closeness” to the president, regardless of whether the individual provides advice to the president on his constitutional responsibilities. It would apply first and foremost to the president’s spouse and other members of his immediate family, as well as to his closest friends and associates. There is no particular reason it should apply to members of the White House staff unless they have a relationship with the president that goes beyond the purely professional.

One could have no better illustration of this point than the current administration. Numerous Trump associates have testified before Congress, including Donald Trump, Jr. (the president’s son), Jared Kushner (the president’s son-in-law and a key White House adviser), Michael Cohen (the president’s longtime personal lawyer), Roger Stone (a longtime political ally of the president) and Keith Schiller (the president’s longtime bodyguard). None of these individuals invoked absolute immunity, presumably because they either were not government employees at all or were being questioned solely about non-official matters (i.e., the 2016 presidential election). But these facts have absolutely nothing to do with whether their appearance before Congress promoted the perception (or reality) of the president’s alleged “subjugation” to Congress.

The only possible defense of this line-drawing would have to go something like this. The “anti-subjugation” principle is a quasi-monarchical concept that is designed to protect the autonomy and dignity of the king (I mean, president) and his entourage. However, because OLC realizes that we are not actually a monarchy, it restricts its application to members of the entourage who are actual government employees.

If that were so, however, then it would be particularly nonsensical to invoke absolute immunity for a former White House official like McGahn, who had a professional relationship with the president when he served as White House counsel and now has little or no relationship at all. Granting for the sake of argument the dubious proposition that requiring the current White House counsel to testify before Congress would somehow promote the perception that the president is subordinate to the legislative branch, it makes no sense to extend that proposition to a former White House counsel who is now a private citizen.

Further illustration of the concept’s incoherence comes from the recent congressional appearance of Hope Hicks, the former White House communications director who played a similar role for the Trump presidential campaign. The administration allowed Hicks to testify before the House Judiciary Committee (in closed session), but only about matters that occurred before or after her White House tenure. Thus, Hicks, who was accompanied by both a White House and OLC lawyer as well as her personal attorney, was permitted to answer questions about the 2016 election campaign, but not even the most anodyne questions about her time in the White House (such as where her office was located). How allowing a private citizen to provide clearly nonprivileged information about her time in the White House would promote a perception of the president’s “subjugation” is anyone’s guess.

Part of OLC’s confusion may stem from its inappropriate analogy between asserting absolute testimonial immunity for former presidents and asserting it for former staffers. While there is little support for the former, it at least makes intuitive sense to suggest that protecting the dignity and autonomy of the presidency may require extending some protection to a former president. On the other hand, the notion that the presidency must be protected by according absolute testimonial immunity to former staffers, simply because they once held one of an ill-defined group of positions in the White House, is entirely arbitrary and smacks of creating a class of super-citizens who are permitted to ignore the ordinary obligations of citizenship.

Oversight and Impeachment

For the reasons stated above, OLC’s arguments for absolute testimonial immunity simply do not stand up to scrutiny. To a large extent OLC attempts to divert attention from this fact by attacking the process and importance of congressional oversight in general. Thus, OLC unfavorably contrasts congressional proceedings with judicial proceedings on the grounds that the latter involves a “disinterested arbiter” monitoring the “careful development of evidence” and “charged with impartially administering procedural rules designed to protect witnesses from irrelevant, argumentative, harassing, cumulative, privileged, and other problematic questions.” See 5-20-19 OLC Opinion at 13-14. By contrast, congressional hearings are nothing more than political show trials run by power-hungry monsters who act with all the grace and dignity of feces-throwing monkeys.

Okay, I paraphrased that last part, but the fundamental premise of OLC’s argument is that all congressional proceedings are based on whim and so inherently unfair that presidential advisers are constitutionally exempt from participating in them. This is an extraordinary claim and less of a legal argument than an attempt to flatter the judicial branch into refusing to assist Congress in its efforts to obtain information.

Notably, OLC cites no judicial authority for its claim. Nowhere in the numerous Supreme Court and other judicial opinions discussing congressional investigations and subpoenas can it identify any language suggesting that congressional proceedings are less important or legitimate, or Congress’s compulsory process less compulsory, than judicial proceedings. Compare Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, __ (D.C. Cir. 1974) (Mackinnon, J., concurring) (stressing that the decision not to enforce the committee’s subpoena in that case “evidences no retreat from my previously expressed views on the force, validity and importance of congressional subpoenas . . . nor does it reflect a comparatively greater esteem for judicial proceedings.”).  It is particularly difficult to square the Supreme Court’s language in Bryan, discussed earlier, with the notion that the “great power of testimonial compulsion” is entirely negated when the legislative (but not the judicial) branch demands that presidential aides perform their “public duty.”

Interestingly, the sole authority OLC cites is a law review article by Archibald Cox in which he alludes to the fact that congressional hearings are not always characterized by “judicious self-restraint.” See Archibald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1429 (1974) (cited at 5-20-19 OLC Opinion at 14). However, Cox never suggests that presidential aides should therefore be immune from testifying in congressional hearings; rather, he concludes that the proper check on overreach by individual committees is to require the full legislative body to vote in cases where the executive branch refuses to provide information demanded by the committee. Cox, Executive Privilege, 122 U. Pa. L. Rev. at 1434. Nothing in his article remotely supports OLC’s position on testimonial immunity.

Finally, even if there were merit to OLC’s argument, it should be stressed that it applies only to congressional oversight. Nowhere in OLC’s opinion is the word “impeachment” mentioned, and neither this opinion nor any of its prior ones (to the extent they are available) suggest that presidential advisers would be immune from testifying in impeachment proceedings. Indeed, in its Miers reply brief, the Justice Department circumspectly but clearly distinguished cases in which the House is acting pursuant to an express constitutional grant of authority, as opposed to “the House’s implied power under Article I to obtain information in support of its legislative function.” Reply in Support of Defendants’ Motion to Dismiss at 49 n.15 (June 12, 2008).

Thus, when the House acts pursuant to express constitutional authority to consider impeachment, it must have the same powers of testimonial compulsion as a court or grand jury. It would be absurd to argue that the president can surround himself with advisers who are constitutionally immune from testifying in an impeachment proceeding about potential high crimes and misdemeanors they may have witnessed. Cox makes this point clear in the very law review article OLC cites:

On principle, the House should have a right to evidence. The House cannot serve as the “grand inquest of the nation,” as the Constitution intends, if the very President whose conduct of his official duties is under investigation can balk the inquiry by withholding the recorded evidence of his conduct in the Executive Branch. The general interest in protecting the confidentiality of internal executive discussions as a means of encouraging candor is surely not as great as the interest in examining charges of executive misconduct serious enough to warrant formal consideration of impeachment.

Cox, Executive Privilege, 122 U. Pa. L. Rev. at 1436-37.

In short, even if there were merit to OLC’s argument that McGahn cannot be compelled to testify in ordinary oversight hearings (and, as we have seen, there is little to none), even OLC could not (and, I believe, would not) contend this argument applies in a formal impeachment proceeding.