I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.

What to Look For in the Mazars Oral Argument

Tomorrow the Mazars subpoena case will be argued before the D.C. Circuit (Judges Tatel, Millett and Rao). In this appeal, President Trump (in his private capacity) has advanced a novel and audacious theory in support of his contention that the congressional subpoena at issue lacks a “legitimate legislative purpose.” Trump is asking the D.C. Circuit to reverse the decision of the district court, which denied Trump’s application for an injunction to prevent Mazars, his accounting firm, from producing financial records responsive to the subpoena.

As Judge Mehta pointed out in his decision below, the legal standards employed by the courts to review congressional subpoenas and investigations are generally so deferential that they “do not substantially constrain Congress.” Rather than fighting this proposition head on, Trump’s lawyers focus primarily on seeking a carve-out from Congress’s broad investigatory and oversight authority for those who hold constitutional offices (i.e., the president and Supreme Court justices).

The lynchpin of this argument is the distinction between Congress’s legislative and judicial powers. Although it has long been understood that Congress must have some ability to obtain information needed to consider and craft legislative measures, the scope of this power was once highly controversial. Following the Supreme Court’s decision in Kilbourn v. Thompson, 103 U.S. 168 (1880), which stressed that Congress, unlike the British Parliament, was not a court of general jurisdiction, it was widely believed that Congress’s authority to compel the production of information for legislative purposes was limited at best. This reading of Kilbourn, however, was undermined by later Supreme Court cases beginning with McGrain v. Daugherty, 273 U.S. 135 (1927). These subsequent cases, Judge Mehta noted, render Kilbourn “largely impotent as a guiding constitutional principle.”

Trump attempts to revive Kilbourn for a limited purpose. His theory goes something like this. Congress generally has broad legislative and oversight authority with respect to the departments and agencies of government, including offices created by statute. With respect to constitutional offices, however, Congress’s legislative authority is “severely constrained.” Trump Br. at 4, 38. Thus, Trump claims that Congress cannot rely on its legislative authority to seek his financial records because these records are not relevant to a subject on which legislation may be had.

To be sure, Trump acknowledges that Congress also has powers of a judicial nature. But, following Kilbourn, he stresses that these are not of general scope, but are limited to those areas expressly identified in the Constitution, namely judging elections, disciplining members, and, most importantly, impeachment. For those who hold constitutional offices, therefore, impeachment is the only method (Trump argues) by which Congress can investigate alleged wrongdoing.

Thus, “[w]hile Congress could presumably use subpoenas to advance these non-legislative powers, the Committee has not invoked them.” Trump Br. at 45. In fact, Trump takes pains to demonstrate that Speaker Pelosi has disavowed any intent to go down the path of impeachment. Trump Br. at 47-48.

The novelty of this argument is illustrated by the fact that one of the principal “authorities” cited in Trump’s brief is a three-page law student note that is more than a century old. See Note, Congressional Power to Punish for Contempt, 30 Harv. L. Rev. 384 (1917) (cited in Trump Br. at 17-18). The apparent utility of this note from Trump’s perspective is that it vividly distinguishes congressional contempt in the context of impeachment from that in the context of legislative oversight:

A committee of the House considering an impeachment is like a Grand Jury hearing evidence which may lead to the return of an indictment– it is a judicial body and it is one provided for by the Constitution. It must surely have the power to call witnesses, and the power is of little avail if these witnesses may contemptuously refuse to respond, or may be influenced or intimidated by outside contempts of the body before whom they are testifying. If the House is to sit in a judicial capacity, it must have the protection that a court has.

Note, 30 Harv. L. Rev. at 385. Yet even this note, which predates McGrain, concludes that “[t]he power to legislate . . . by necessary implication include[s] the power to examine witnesses and to compel them to respond by contempt proceedings.” Id. at 386.

Why would the Trump team rely on what seems like a very long shot argument? The short answer is I don’t know, but three possibilities come to mind. First, Trump’s lawyers may simply believe this is the best argument available to them. Second, it may be thought that stressing the lack of impeachment proceedings helps Trump’s cause beyond the confines of this particular case (e.g., with public opinion and/or with courts that will be ruling on more difficult subpoena enforcement issues in the months ahead). Third, Trump’s legal team may believe that advancing a bold legal theory is the best way to get the Supreme Court to grant certiorari, which strings out the proceedings even if it is unlikely to deliver an ultimate victory.

The two things to look for in tomorrow’s argument: (1) how much interest does the panel show in impeachment and why the House has declined to initiate impeachment proceedings to date, and (2) whether Judge Rao (the lone Republican appointee) seems at all open to Trump’s arguments. A unanimous panel opinion will make further review less likely.

Roger Cramton on Executive Privilege

Who is Roger Cramton, I hear you ask? He was the author of a 1972 memorandum cited in footnote 1 of the OLC’s 5-20-19 opinion on the testimonial immunity of former White House counsel Don McGahn. It is cited as “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 Congressional Committee Seeks Testimony of Former White House Official on Advice Given President on Official Matters (Dec. 21, 1972) (Cramton Memorandum).

I have not located a copy of the Cramton Memorandum (if anyone has, please forward), but I did come across this March 23, 1973 New York Times piece (an op-ed, I assume) written by Mr. Cramton. It is entitled “Why Executive Privilege Won’t Kill You,” which, you have to admit, sets a pretty low bar. Cramton addresses the controversy over the Nixon administration’s refusal to allow high level advisers, such as Henry Kissinger, John Ehrlichman, H.R. Haldeman, Peter Flanigan and John W. Dean, to testify before Congress.

Cramton’s defense of this practice is entirely based on the premise that these witnesses will be asked about privileged matters relating to advice given to the president. He contended that “[p]residential adverser are not subject to interrogation any more than a law clerk can be asked about the factors or discussions that preceded a decision of his judge or legislative aide asked about conversations with his Congressman.” The president’s “official family” must be able to give him candid advice uninhibited by fear their views “will be subject to subsequent disclosure or second-guessing.”

I have three observations about Cramton ‘s position. First, it was obviously part of an effort to justify the Nixon administration’s refusal to cooperate with Congress’s Watergate investigation. Just a couple weeks after the New York Times piece, Chairman Sam Ervin held a press conference calling this position “executive poppycock” and saying “Divine right went out with the American  Revolution and doesn’t belong to White House aides.” Karl Campbell, Senator Sam Ervin, Last of the Founding Fathers 285 (2007). Nixon backed down shortly thereafter and allowed his closest aides to testify. Id. at 285-86.

Second, Cramton’s public statement, at least, does not claim that White House aides have absolute immunity from appearing on  Capitol Hill or testifying about non-privileged matters. In this it is consistent with public pronouncements of William Rehnquist and other executive branch lawyers. It does suggest that presidential communications are absolutely privileged, but this position was rejected by the Supreme Court a year later in United States v. Nixon.

Finally, it is odd that OLC today relies on Cramton’s position, given that it failed in every conceivable way. Top White House advisers such as Haldeman, Ehrlichman and Dean were forced to testify before Congress when President Nixon realized it was politically and legally unsustainable to refuse. The Supreme Court subsequently rejected the legal reasoning on which the refusal was based. And the entire effort was revealed to be part of a criminal conspiracy which resulted in Haldeman, Ehrlichman and Dean going to prison.

It seems odd, anyway.

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. Continue reading “OLC’s Fig Leaf Can’t Cover McGahn”

Does the President Enjoy Absolute Testimonial Immunity?

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). Continue reading “Does the President Enjoy Absolute Testimonial Immunity?”

OLC’s Evolving Position on Testimonial Immunity

In this post I will look at OLC’s claim that its advice on testimonial immunity of senior presidential advisers has been consistent “for nearly five decades.” See 5-20-19 OLC Opinion at 1. As we saw in my first post, since the 1940s the executive branch has generally resisted congressional demands for testimony from such advisers, but on a number of occasions it has permitted these advisers to testify in open congressional hearings and on other occasions it has agreed or offered to provide information from these advisers in alternative ways. Until the mid to late-1990s, the executive branch’s position on this subject was not presented to Congress as an assertion of absolute constitutional immunity, but more like the prophylactic rule described in my last post. Moreover, when OLC’s internal memoranda from this time period are scrutinized (to the extent they are available), they are compatible with this more modest interpretation of its position.

It was not until the Clinton administration that OLC articulated a formal and definitive defense of the proposition that senior presidential advisers are constitutionally immune from compelled congressional testimony. Even then, OLC seems to have accepted this proposition without any serious legal analysis and, in particular, without any consideration of important developments in the case law since Assistant Attorney General William Rehnquist first casually suggested it in 1971. Continue reading “OLC’s Evolving Position on Testimonial Immunity”

What Does OLC Really Mean By “Testimonial Immunity”?

Following up on my first post on the Office of Legal Counsel’s May 20, 2019 opinion regarding the “testimonial immunity” of senior presidential advisers, let’s turn to OLC’s claim that “for nearly five decades” it has advised that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.” See 5-20-19 OLC Opinion at 1.

Today I want to ask what this advice actually means. After all, it is not at all clear that OLC believes Congress may “constitutionally compel” anyone in the executive branch to provide any information, whether in the form of testimony or documents, regarding their official duties or anything else. Although it would concede that Congress has the constitutional right to demand information needed for legislative and oversight purposes, OLC would deny that Congress ever has the right to “compel” the executive branch to produce such information, at least where the president has asserted executive privilege.

Perhaps OLC would offer the distinction that the president is constitutionally obligated to provide information to Congress unless a valid constitutional basis exists for withholding it; thus, he is “compelled” to provide information where no such basis exists, even though he is the final decisionmaker as to whether or not information should be withheld. In the case of senior presidential advisers, however, the president has complete discretion as to whether to allow them to testify and thus is never “compelled” to do so.

There are a couple problems with this distinction. First, even in OLC’s theory, the immunity of presidential advisers is limited. It does not apply to everyone who works in the White House, but only the president’s “senior” or “immediate” advisers. It does not apply to those with statutory or operational responsibilities. It does not apply to testimony about “personal affairs,” a term which OLC does not define but which, we will see, includes at least matters involving misuse of the adviser’s public position. Thus, even under OLC’s theory, it would seem the president is “compelled” to provide testimony of his advisers under certain circumstances.

More fundamentally, however, OLC and the executive branch maintain that all congressional demands for information are subject to a constitutionally-mandated accommodation process, which consists of a “back-and-forth process under which each branch is constitutionally obligated to negotiate in good faith, articulate with particularity their legitimate institutional needs and interests, and weigh the legitimate needs and interests of the other branch.” This is “not simply an exchange of concessions or a test of political strength” but “an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Congressional demands for testimony from senior presidential advisers are not exempt from this accommodation process. OLC acknowledges that “Presidents have occasionally made senior advisers available to accommodate congressional requests, even while defending their legal authority to decline such requests.” 5-20-19 OLC Opinion at 12. During the 2008 litigation in which the House Judiciary Committee attempted to compel former White House counsel Harriet Miers to testify, the Justice Department stressed that the committee was trying to end run the accommodation process. See, e.g., Reply in Support of Defendants’ Motion to Dismiss at 47 (June 12, 2008) (“rather than relying on good faith negotiations and cooperation (including the President’s offer that Ms. Miers appear for an interview), the Committee has invoked this Court’s jurisdiction to judicially compel Ms. Miers’s attendance and sworn testimony at a public hearing”).

It is hard to see how one can square OLC’s understanding of the accommodation process with a claim that presidential advisers are “absolutely immune” from testifying before Congress. If Congress has a “legitimate need” for the testimony of a senior presidential adviser (e.g., because the adviser is an essential fact witness to wrongdoing) and there is no principled reason to withhold the information (e.g., because of the executive’s longstanding position that executive privilege will not be invoked to conceal evidence of criminal or unlawful wrongdoing by executive officials), it would seem that the president would be obligated to permit the adviser to testify. Thus, when Presidents Nixon and Reagan permitted senior advisers to testify about Watergate and Iran-Contra, respectively, they were not merely engaging in acts of presidential grace but carrying out their constitutional obligations.

Any other interpretation would create bizarre inconsistencies in the executive branch position. For example, suppose Congress has a legitimate legislative need for information known only to a senior presidential adviser. If the adviser wrote the information down in a document, the executive branch would have a constitutional obligation (under some circumstances) to provide the document to Congress. But if the same information were only in the adviser’s head, there would be no constitutional obligation to acknowledge the legislative need for the information and any accommodation would be purely a matter of political bargaining. This simply makes no sense.

To be sure, OLC would deny that Congress can use the methods of testimonial compulsion (inherent contempt, criminal contempt or civil litigation) to force senior presidential advisers to testify. However, as already noted, OLC would take the same position with regard to any other type of testimony or evidence if the president has invoked executive privilege. This was made clear in the government’s briefs in the Miers case:

At no time during the long history of interbranch negotiations and accommodations has a court ordered an Executive Branch official—let alone one of the President’s senior advisers—to testify before Congress, nor has the Executive Branch been required by court order to produce documents or a privilege log to Congress. This uniform past practice also has been followed with respect to congressional demands that senior White House advisers appear before congressional committees to justify the President’s decisions. Although such advisers have, from time-to-time, appeared before Congress, at no time in the Nation’s history has a court ordered a senior White House adviser to testify as a result of a congressional subpoena.

Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and in Opposition to Plaintiff’s Motion for Partial Summary Judgment on Counts I and II at 9 (May 9, 2008).

Of course, if the executive branch is wrong about the justiciability of executive-legislative information disputes, OLC would want its absolute immunity argument available as a backup. But the justification for absolute immunity is premised on the notion that without such immunity Congress would routinely use its power to compel the appearance of key White House officials. If the argument is only relevant in judicial proceedings to compel appearance, it is not necessary because courts will prevent any abuse and will not order senior White House aides to testify unless there is a legitimate legislative need for the information.

In short, the only way OLC’s position makes sense is if one understands the “immunity” of senior presidential advisers to be a prophylactic rule or policy asserted by the executive branch in order to keep senior White House officials from having to testify before Congress as a routine matter. Because in most cases their testimony will be largely if not entirely protected by executive privilege, such a policy protects legitimate executive branch interests and is generally accepted by Congress as a matter of comity.

As we will see in my next post on this subject, this is also the best way to interpret OLC’s position on this issue for most of the “nearly five decades” it has offered advice on it.

 

OLC’s Law Office History of Testimonial Immunity

On May 20, 2019, the Office of Legal Counsel released an opinion entitled “Testimonial Immunity Before Congress of the Former Counsel to the President,” in which OLC concludes that former White House counsel Don McGahn is constitutionally immune from being required to appear, much less testify, before the House Judiciary Committee. Before analyzing OLC’s substantive argument, I want to address two factual assertions it makes about historical practice and its own legal advice regarding this issue.

OLC makes two basic claims. First, it contends that executive branch practice “at least since the Truman Administration” provides a “strong historical foundation for the Executive Branch’s position that Congress may not compel the President’s senior advisers to appear and testify.” Second, it asserts that “for nearly five decades” the Justice Department has maintained that “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”

One might question the relevance of these assertions even if they were true. Neither the executive branch’s unilateral practice of objecting to congressional testimony by White House officials nor its internal opinions regarding the constitutional basis for this practice would constitute authority binding on the other branches, particularly in the absence of any evidence or even allegation of congressional acquiescence. Nevertheless, it is worth scrutinizing OLC’s claims if for no other reason than that it seems to place a great deal of reliance on them. Perhaps this is because, as Judge Bates observed in 2008, the only authority offered by the executive branch for the proposition that White House officials enjoy testimonial immunity is OLC’s prior opinions on the subject.

That being said, the historical record does not support either of OLC’s claims. Today we will look at the evidence with regard to OLC’s description of the historical record. In a future post we will look at its claims regarding its prior advice.

Practice Prior to the Nixon Administration. The Executive Office of the President dates back only to the 1930s, and OLC maintains that since that time “the long-standing policy has been to decline invitations for voluntary appearances and to resist congressional subpoenas for involuntary ones” with respect to White House officials.

OLC has identified only six instances in which White House officials attempted to refuse congressional invitations or demands for testimony during the period prior to the Nixon administration. In three of these cases, the official in question ultimately agreed to testify as the result of political or legal pressure (or both) exerted by Congress.

[Note: CRS has identified a couple of additional instances during the 1940s where White House officials testified regarding allegations they misused their positions for personal gain, but it is not apparent there was any objection in those cases. See CRS Report on Presidential Advisers’ Testimony Before Congressional Committees: An Overview 7-8 (Apr. 10, 2007).]

First, in 1944 during the Franklin D. Roosevelt administration, a Senate subcommittee subpoenaed a presidential aide, Jonathan Daniels, to testify about his reported attempts to compel the head of the Rural Electrification Administration to resign. The aide appeared but refused to testify based on his confidential relationship with the president. After the subcommittee unanimously recommended Daniels be held in contempt, the aide wrote to the subcommittee that he had conferred with the president, who had decided his testimony would not be contrary to the public interest, and was therefore willing to return to the Hill and testify.

A second instance (which is not mentioned in OLC’s May 20 opinion but comes from earlier OLC discussions of this period) concerns Donald Dawson, an aide to President Truman, who was asked in 1951 to testify before a Senate subcommittee investigating the Reconstruction Finance Corporation. Truman “reluctantly” gave permission to Dawson to testify because the inquiry included allegations of wrongdoing against Dawson and Truman wished to give the aide an opportunity to clear his name.

Finally, in 1958 during the Eisenhower administration, the president’s chief of staff, Sherman Adams, testified (with the president’s approval) before a House subcommittee regarding allegations he had improperly interfered with administrative proceedings for the benefit of a New England industrialist with whom he had a longstanding friendship.

On the other hand, OLC identifies three instances in which presidential advisers successfully refused to testify before Congress during this period. One concerned John Steelman, an aide to President Truman, who in 1948 refused subpoenas to testify before a House subcommittee about his communications with Truman regarding administration of the Taft-Hartley Act during a strike. Another also involved Sherman Adams, who in 1955 successfully refused an invitation from a Senate subcommittee to testify regarding a contract between the Atomic Energy Commission and two power companies. Finally, in 1968 an aide to President Lyndon Johnson, W. DeVier Pierson, declined to testify before the Senate Judiciary Committee regarding allegations that Associate Justice Abe Fortas, whose nomination to become chief justice was pending, had inappropriately been involved in drafting certain legislation while serving on the Supreme Court.

It is difficult to see how this history shows anything other than the fact that the White House generally prefers that its staff not testify before Congress. Indeed, in a 1971 internal memorandum (about which more later), Assistant Attorney General William Rehnquist described the practice during this period as “erratic” and noted that “[t]hese precedents are obviously quite inconclusive.” See Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Testimony of “White House Staff” 4, 6 (Feb. 5, 1971) (“Rehnquist Memorandum”). This would seem to directly contradict OLC’s current assertion that these “precedents” provide a “strong historical foundation” for its constitutional theory.

Practice Since the Nixon Administration. While the  pre-Nixon history provides little or no support for OLC’s position, at least its description of that history appears to be fair. On the other hand, its description of the later history suffers from egregious cherry-picking. Although OLC acknowledges that its examples are “not exhaustive,” it implies that they fairly represent the practice during this period. This is not so.

Nixon administration. OLC cites the refusal of Peter Flanigan, a White House aide, to testify before the Senate Judiciary Committee regarding the nomination of Richard Kleindienst to be attorney general. Somehow it fails to mention that the White House relented within a few days and that Flanigan both appeared before the committee and answered written questions for the record. See Louis Fisher, The Politics of Executive Privilege 73 (2004).

Carter administration. OLC cites two examples of Carter White House aides declining to appear in public congressional hearings, but it neglects to mention that both the White House counsel and national security adviser appeared at congressional hearings regarding alleged misconduct by the president’s brother. Fisher, supra, at 202.

Reagan administration. OLC cites the refusal of the White House counsel to appear in person before a congressional committee (he did agree to answer written questions) regarding allegations of corruption against the secretary of labor. It does not mention President Reagan’s directive to all administration officials to cooperate with the congressional investigation of Iran-Contra, which resulted in a number of former White House officials testifying before Congress. Fisher, supra, at 62-64, 202.

Clinton administration. OLC cites President Clinton’s directive to Beth Nolan, counsel to the president, not to testify before a House committee regarding a clemency decision, but it does not mention that Nolan, along with a number of other former White House aides, testified before the same committee regarding Clinton’s subsequent pardons. Fisher, supra, at 219. It also overlooks the fact that “[a] series of congressional investigations throughout the Clinton years required a large number of White House aides to testify about procedures and actions involving contacts with the Treasury Department, the dismissals of employees in the Travel Office, Whitewater, and access to FBI files.” Fisher, supra, at 203.

Even where OLC acknowledges that presidential  aides have testified, it downplays the significance of these facts. For example, OLC acknowledges in a footnote that during Watergate President Nixon allowed current and former White House officials to appear before Congress, first in closed session and then later in open hearings. However, OLC interprets such occurrences as merely “accommodations” to Congress, as opposed to evidence that executive branch practice with respect to congressional testimony by presidential advisers has been inconsistent, non-absolute, or both. This approach renders OLC’s position non-falsifiable since it only counts evidence that supports it.

Conclusion

Rather than constituting a “strong historical foundation” for OLC’s claim of absolute immunity, the evidence supports Lou Fisher’s conclusion that while Congress does not call White House officials to testify regarding routine oversight matters, it does do so when the circumstances warrant, particularly in cases where these officials have an operational role or are fact witnesses to alleged misconduct. See Fisher, supra, at 226-227. Under these conditions White House officials have in fact testified, “and in large numbers.” Id. at 199; see also CRS Report, supra, at 7-20.