Remember the Roger Cramton memorandum we discussed a few months ago? (Of course you do, scarcely a waking moment goes by when you don’t think “I wonder what ever happened with that Roger Cramton memorandum?”). This was one of the memoranda cited by the Office of Legal Counsel in footnote 1 of its opinion declaring that former White House counsel Don McGahn was absolutely immune from having to appear in response to a congressional subpoena.
As we have discussed, OLC’s argument for absolute immunity is based in large part on “precedent” consisting of its own prior statements on the subject. But, as two federal judges have now pointed out, OLC cannot create precedent simply on its own say-so. Last month Judge Ketanji Brown Jackson wrote, in her scathing rejection of McGahn’s claim of immunity, that OLC’s initial theory of absolute immunity set forth in the 1971 Rehnquist memorandum “was seemingly formed out of nothing” and “it appears that an endorsement of the principles that OLC espouses would amount to adopting the absolute testimonial immunity for senior-level presidential aides by ipse dixit.” Comm. on the Judiciary, U.S. House of Representatives v. McGahn, No. 19-cv-2379, slip op. at 99, 102 (D.D.C. Nov. 25, 2019); see also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp.2d 53, 86 (D.D.C. 2008) (rejecting OLC’s opinions on absolute immunity as “conclusory and recursive”). Furthermore, as both Judge Jackson and Judge Bates noted, the original justification for immunity set forth in the Rehnquist memorandum would not apply to former White House officials at all. See McGahn, slip op. at 100; Miers, 558 F. Supp.2d at 88 n. 36.
Enter the aforementioned Cramton memorandum of December 21, 1972 to “the Honorable John W. Dean, III,” Counsel to the President. Although OLC cited this memorandum in its opinion on McGahn, it did not make it public at the time, nor did it bother to mention that this memorandum differed in an important respect from the argument that it was making. We know this now because OLC has just posted it on its website. Hat tip: @kpolantz and @EricColumbus.
To wit, the Cramton memorandum concludes that former White House officials should not be entitled to the same absolute immunity as current officials. It states:
We have one caveat with respect to our conclusion. While we believe that an assertion of Executive privilege with respect to specific testimony on the subject of advice given by the former staff member to the President is entirely proper, we have some reservations about the propriety of invoking the privilege to direct the former staff member not to appear at all. This aspect of the Executive privilege has in the past been claimed only for the President and his most intimate, immediate advisers. One of the justifications that has been advanced for an immediate adviser declining to appear is that he is presumptively available to the President 24 hours a day; the necessity to appear before congressional committees therefore could impair that availability. This consideration would obviously not justify a refusal to appear by a former staff member. However, this justification is in our view neither the only nor the best one. An immediate assistant to the President may be said to serve as his alter ego in implementing Presidential policies. On this theory, the 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.
In conclusion, we believe that an invocation of the privilege with respect to particular testimony by a former staff member on the subject of advice given the President is quite clearly proper; on the other hand, we believe an invocation of the privilege as a basis for refusal to appear at all is a closer question. An intention to invoke the privilege with respect to particular testimony could certainly be announced. This as a practical matter may solve the problem. If, however, the interrogation is expected to extend to non-privileged matters, a decision that the former staff member should not appear at all would not, in our opinion, be justified.
Memorandum of 12-21-1972 at 6-7 (emphasis added).
To be sure, this language does not foreclose a refusal to appear by a former White House official if the testimony is expected to involve only privileged matters (though it suggests this is a “closer question”). If, on the other hand, non-privileged matters are involved, it indicates that such a refusal would not be justified. This position is inconsistent with OLC’s current stance, which is that former officials are absolutely immune from any questioning about their official activities, regardless whether they are privileged. As OLC “explained” in its McGahn opinion, “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.” 5-20-19 Opinion at 17. Moreover, it asserted that “consistent with our prior precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” Id. at 16. This again is inconsistent with the Cramton memorandum.
Furthermore, the Cramton memorandum implicitly rejects OLC rationales for extending immunity to former officials. If allowing such officials to testify about non-privileged matters will not impair the president’s ability to obtain confidential advice, there is no reason why they should not appear and invoke the privilege on a question by question basis (like every other executive official outside the White House). Moreover, Cramton obviously did not believe that allowing former officials to appear would adversely impact the president’s “autonomy.”
It seems to me that if you are going to rest an argument on ipse dixit, you ought at least to be honest about the ipse. Maybe the D.C. Circuit will have some questions about this too.