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?”