Who Loves Testimonial Immunity? Just Us.

The Department of Justice, at the invitation of presiding judge Carl Nichols, has filed a statement of its views regarding whether former Trump chief of staff Mark Meadows is entitled to assert testimonial immunity in response to a subpoena from the House select committee investigating the January 6 attack on the Capitol. Because the DOJ brief ultimately concludes that Meadows must provide testimony in this instance, its reasoning may escape serious scrutiny in most quarters. But not on this blog.

So let us count the ways DOJ is full of crap.

  1. DOJ’s fundamental position on testimonial immunity has not changed, and it is still supported by nothing more than ipse dixit.  DOJ reiterates “the Executive Branch’s longstanding position” that “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” DOJ Br. at 7. As it routinely does, DOJ stresses that its position has been consistent over many years and through administrations of both parties, thus proving self-interestedness is a bipartisan phenomenon and little else.

To support this (longstanding- did I mention that?) position, DOJ offers a cursory regurgitation of arguments/assertions it has made many times before: (1) immunity is needed to protect the president’s independence and autonomy; (2) the president’s advisers should not have to appear because their testimony would largely be protected by executive privilege anyway; and (3) without immunity the president’s advisers would be subject to congressional harassment and distraction from their important duties. DOJ Br. at 5-7.

To be sure, DOJ acknowledges that “some judges” have disagreed with its view, citing in a footnote four opinions, two by judges of the U.S. District Court for the District of Columbia and two by judges of the U.S. Court of Appeals for the D.C. Circuit. See DOJ Br. at 7 & n. 4. Left unmentioned is the fact that exactly zero judges have agreed with DOJ’s position or even expressed the slightest interest in adopting it.

More importantly, DOJ makes no effort whatsoever to respond to the judicial criticisms of its position, which were first voiced by Judge Bates in 2008 litigation involving Harriet Miers. See Comm. on the Judiciary v. Miers, 558 F.Supp.2d 53, 100-06 (D.D.C. 2008). Instead, it simply says that it will adhere to its position unless the D.C. Circuit and/or the Supreme Court definitively reject it. DOJ Br. at 7.

This stance is particularly remarkable because another judge called out DOJ for precisely the same obstinacy in 2019:

DOJ . . . assert[s] that Miers was wrongly decided . . . [and] has emphasized that Miers’s sphere of influence is exceedingly limited. The thrust of the latter contention is that Miers is only one opinion . . . and implicitly, that the law is not established by the word of a single district court judge. On the other hand, says DOJ, scores of OLC attorneys have considered this issue over the past five decades, and in a series of opinions, OLC has carefully concluded that senior-level presidential aides do enjoy absolute testimonial immunity. . . . DOJ suggests that, in the absence of a groundswell of judges rejecting the concept, this Court should not readily find that the law is what Miers concluded.

Comm. on the Judiciary v. McGahn, 415 F.Supp.3d 148, 203 (D.D.C. 2019). Instead of confronting the analysis in Miers directly or giving the court “any principled reason to interpret the law in a different fashion than Judge Bates did,” the judge noted, DOJ simply dismissed his ruling “before proceeding to draw solely from OLC opinions to support the argument that senior-level presidential aides have absolute testimonial immunity.” Id.

The judge in question, of course, was none other than Ketanji Brown Jackson, who recently became the first (and so far only) Supreme Court appointment of the current occupant of the White House. Given that the McGahn opinion was Jackson’s most important and well-known opinion prior to her Supreme Court nomination, one might have expected DOJ to at least acknowledge her harsh criticism of its testimonial immunity theory. One would be wrong.

Judge Jackson went far beyond merely disagreeing with DOJ on the issue of testimonial immunity. She agreed with Judge Bates that DOJ’s legal position “is all but foreclosed by the binding case law Miers cites,” and she dissected at length “the logical flaws in DOJ’s legal analysis.” McGahn, 415 F.Supp.3d at 202. The judge found that “absolute testimonial immunity for senior-level White House aides seems to be a fiction that has been fastidiously maintained over the course of time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.” Id. at 214. DOJ’s contention “simply has no basis in law,” its argument “truly makes no sense,” and its position is ultimately based on nothing more than “ipse dixit.” Id. at 206-07, 212 & 214.

In short, Jackson makes clear that she does not view this as a close legal question about which reasonable minds can disagree. Either her McGahn opinion was overwrought and hyperbolic, or DOJ’s testimonial immunity theory is utterly without merit. There is no middle ground.

Maybe someone should ask President Biden which it is.

  1. DOJ’s effort to distinguish former advisers to a sitting president from former advisers to a former president is unpersuasive. Although DOJ stands by its position that current and former advisers to a sitting president are entitled to absolute immunity from compelled congressional testimony, it contends that former advisers to a former president should be entitled to only qualified immunity. Such qualified immunity would prevent Congress from calling a former president’s senior advisers to testify “when such testimony is not necessary to the exercise of Congress’s investigative authority” but “would allow Congress to obtain such testimony when it can make a sufficiently strong showing of need.” DOJ Br. at 9.

It is true that DOJ’s reasons for granting absolute immunity to current presidential advisers—such as they are—seem even weaker as applied to former presidential advisers. But this is just as true (or very nearly so) of former advisers to current presidents as it is of former advisers to former presidents. Thus, Judge Jackson observed:

[I]f the purpose of providing certain senior-level presidential aides with absolute testimonial immunity is that the practicalities of their special roles demand it, then what justifies allowing that entitlement to follow them when they return to private life? As a matter of pure logic, it would seem that if one’s access to the Oval Office is the reason that a categorical exemption from compelled congressional process is warranted, then that trump card should, at most, be a raincheck, and not the lifetime pass DOJ proposes.

McGahn, 415 F.Supp.3d at 210.

Although McGahn involved a former White House counsel to a sitting president, Jackson’s reference to a “lifetime pass” indicates that she understood DOJ’s immunity theory to extend beyond a president’s term of office. This understanding was consistent with how DOJ had approached the issue since 2007, when it first opined that former presidential aides were entitled to absolute immunity. See Immunity of the Former Counsel to the President from Compelled Congressional Testimony, 31 Op. O.L.C. 191 (2007). There OLC explained “[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.” Id. at 192-93 (emphasis added). While the opinion does not specifically address former advisers to former presidents, its reasoning suggests that such advisers are also entitled to absolute immunity.

The 2007 opinion relies heavily (indeed almost exclusively) on the fact that former President Truman refused to comply with a congressional subpoena during his post-presidency, stating “if 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.” 31 Op. O.L.C. at 193 (quotingTruman letter of Nov. 12, 1953). The opinion then goes on to say that “[b]ecause a presidential adviser’s immunity is derivative of the President’s, former President Truman’s rationale directly applies to former presidential advisers.” Id. To the extent that one can follow this reasoning, it seems to be that if Truman is correct that former presidents are immune from testifying (which OLC assumes), their (former) aides or “alter egos” must also be, and thus all former advisers enjoy the same immunity as current advisers. This doesn’t make much sense, but it makes even less sense if one says, as DOJ now does, that current presidents, current presidential advisers, former presidents, and former advisers to current presidents are absolutely immune from compelled congressional testimony, while former advisers to former presidents have only qualified immunity.

One suspects that DOJ came to this conclusion, despite its inconsistency with the rest of the fictional world it has created, because it did not want to explain to a court why Mark Meadows is absolutely immune from testifying to a congressional committee about former President Trump’s efforts to overturn the election and unleash a mob on the Capitol. Yet as outrageous as such a result would be, it would be even more so if Trump were still the president.

  1. DOJ’s attempt to recharacterize its immunity theory as an implied limitation on congressional investigative authority should be rejected. At two points in its brief DOJ suggests that the word “immunity” might not be the best term for the doctrine that scores of OLC attorneys have unaccountably been calling “immunity” for decades. See DOJ Br. at 5 & 8 n.5. Instead, it might better be referred to as “we really, really don’t like congressional subpoenas.”

Ha, just kidding! In actuality, DOJ suggests, albeit tentatively, that the immunity doctrine could be alternatively understood as a limitation on Congress’s implied investigative power analogous to that recognized in Trump v. Mazars USA, LLC, 140 S.Ct. 2019 (2020).

One can understand why DOJ would be tempted to recast a legal theory that has received such a chilly reception in the courts. One reason for judicial resistance to the idea of testimonial immunity for White House staff is that the idea of such immunity in judicial proceedings would be laughable. Indeed, the courts have rejected the proposition that even the sitting president is categorically immune from judicial process. So better to stay away from the concept of witness immunity, which courts hate, and instead talk about limits on congressional investigative power, toward which courts feel more sympathy.

But it is hard to see how DOJ can salvage its immunity theory by seizing on Mazars, where the Court rejected the proposition that congressional subpoenas for the president’s personal financial information should be subject to the “exacting standards” established to protect confidential presidential communications in United States v. Nixon, 418 U.S. 683 (1974). The Mazars Court found that “[s]uch a categorical approach would represent a significant departure from the longstanding way of doing business between the branches, giving short shrift to Congress’s important interests in conducting inquiries to obtain the information it needs to legislate effectively.” Nothing in Mazars suggests the Court would be open to giving White House aides even more protection than the ”exacting standards” already available for privileged communications. Certainly an approach of providing absolute immunity to White House aides while ignoring congressional interests in conducting legislative investigations would be totally inconsistent with Mazars.

Furthermore, it may have slipped DOJ’s mind, but it has not limited its immunity theory to cases in which Congress is exercising its implied legislative power of investigation. During the first Trump impeachment, OLC asserted (without much more than ipse dixit) that “testimonial immunity applies in an impeachment inquiry just as it applies in a legislative oversight inquiry.” Letter from Steven Engel, Assistant Attorney General for the Office of Legal Counsel, to Pat A. Cipollone, Counsel to the President, at 2 (Nov. 3, 2019). Before DOJ can try repackaging its immunity theory as a limitation on the implied legislative power of investigation, it will need to withdraw this opinion regarding the express constitutional power of impeachment.

  1. DOJ’s ambivalence regarding who may invoke immunity creates substantial uncertainty. DOJ initially asserts that “[t]estimonial immunity for immediate advisers to the President is not designed for the benefit of such advisers in their individual capacities, nor for the personal benefit of any particular President” and thus “the determination whether to invoke such immunity should be made by the singular officer who ‘speaks authoritatively for the interests of the Executive Branch’ . . . –the sitting President.” DOJ Br. at 14 (quoting Trump v. Thompson, 20 F.4th 10, 33 (D.C. Cir. 2021)).

This seemingly clear statement is then immediately undermined by the assertion that where a former and current president disagree about the assertion of immunity the former’s views “should not—at least absent extraordinary circumstances—overcome the sitting President’s conclusion that an assertion of immunity is not warranted.” DOJ Br. at 15. This implies (1) that the former president has a role in deciding whether immunity is to be invoked in the first instance and (2) in “extraordinary circumstances” the former president’s views might even trump the sitting president’s express finding that invoking immunity would be contrary to the public interest. DOJ says that Judge Nichols need not address this issue, however, because in the current case the select committee has met the burden of overcoming Meadows’ qualified immunity regardless of the positions taken by the current and former presidents. DOJ Br. at 16.

Accepting DOJ’s approach creates a situation where certain former advisers to former presidents are permitted to assert qualified immunity in response to congressional subpoenas so long as (1) the matter relates to their official duties and (2) Congress has failed to demonstrate sufficient need for the information if they are instructed to assert immunity by the current president or (maybe) if they are instructed to do so by the former president unless the current president objects except possibly under some undefined “extraordinary circumstances.”

It sure is great that DOJ has developed this doctrine to avoid a lot of messy legal disputes. Compare DOJ Br. at 6 (explaining that one advantage of testimonial immunity is to prevent “a series of contentious incidents in proceedings before [congressional committees]” and the “potentially endless resort to the courts to resolve specific privilege disputes.”).

DOJ’s muddled position likely explains why it declined to prosecute Meadows for contempt of Congress. Cf. Rohini Kurup & Jonathan Shaub, Dissecting the Justice Department’s Prosecutorial Decisions on Navarro, Meadows and Scavino, Lawfare (July 20, 2022) (arguing that one possible reason for DOJ’s decision not to prosecute Meadows and Dan Scavino, another top Trump White House official, for contempt is that they “could reasonably believe that they had been authorized to assert [] immunity by someone with authority to give such a direction: former President Trump”).

Although mistake of law is not a defense to a contempt of Congress charge (as Judge Nichols held in the Bannon case), DOJ has long taken the position that separation of powers principles preclude prosecuting an executive official who asserts privilege at the president’s direction, even if the privilege is ultimately rejected. Here DOJ would have to argue that Meadows could not similarly rely on instruction from the former president, even while admitting there are “extraordinary circumstances” where that instruction might legally exempt him from testifying. Perhaps nothing prevents DOJ from drawing that distinction (after all, there are few limiting principles in an area of law it has invented out of whole cloth), but it would invite more scrutiny of its immunity doctrine than it might prefer.

DOJ’s position would have been stronger had it simply concluded that the former president had no role in the decision to assert immunity. But this would be in considerable tension with its proffered rationales for immunity. One of the main reasons for granting immunity to former advisers (whether of the current or former president) is to protect the president’s “autonomy and independence,” which would allegedly be infringed by the indignity of having his retainers dragged before congressional committees to testify. However, it then makes little sense to have the decision whether to assert immunity made solely by someone else, particularly if the decisionmaker (the current president) may be a political rival. That would uncomfortably highlight the fact that the former president is merely a private citizen who is not entitled to any more “autonomy and independence” than the rest of us.

Finally, DOJ’s position may even create a potential appeal issue for Steve Bannon, who was just convicted on two counts of contempt of Congress. Bannon argues that he was instructed to assert immunity by former President Trump just like Meadows and Scavino. Bannon’s case is distinguishable because he was not in the White House or the government at the relevant time and thus his testimony could not relate to his “official duties.” But Bannon might respond that he was unsure whether the committee’s questioning might relate to his official duties from his prior stint in the White House and/or whether DOJ’s immunity theory might cover his role as an informal outside adviser to the president. In any event, why should he go to jail for obeying a legally erroneous instruction from the former president when Meadows and Scavino did the same thing? Particularly when DOJ itself seems unsure about the contours of its evolving immunity theory?

Conclusion

“Stated simply,” Judge Jackson wrote, “the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” McGahn, 415 F.Supp.3d at 213. Senior White House officials like Meadows are not personal extensions of the president, “bound by loyalty or blood,” but “work for the People of the United States” and “take an oath to protect and defend the Constitution of the United States.” Id. It simply makes no sense to claim that they are immune from testifying to Congress when they have information Congress needs for legislative purposes, much less when that information concerns their knowledge of or involvement in an attack on the Constitution itself.

No matter how many OLC opinions say otherwise.

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