US. Department of Justice
Of?ce of Legal Counsel

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530

May 20, 2019

MEMORANDUM FOR PAT A. CIPOLLONE
COUNSEL TO THE PRESIDENT

Re: Testimonial Immunity Before Congress of
the Former Counsel to the President

On April 22, 2019, the Committee on the Judiciary of the House of Representatives
subpoenaed Donald F. McGahn II, the former Counsel to the President, to testify about matters
described in the report of Special Counsel Robert S. Mueller, 111. You have asked whether Mr.
McGahn is legally required to appear.

We provide the same answer that the Department of Justice has repeatedly provided for
nearly ?ve decades: Congress may not constitutionally compel the President?s senior advisers to
testify about their of?cial duties. This testimonial immunity is rooted in the constitutional
separation of powers and derives from the President?s independence from Congress. As
Attorney General Janet Reno explained, ?[s]ubjecting a senior presidential advisor to the
congressional subpoena power would be akin to requiring the President himself to appear before
Congress on matters relating to the performance of his constitutionally assigned executive
functions.? Assertion of Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C.
1, 5 (1999) (?Reno Opinion?). Yet 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. See Memorandum for Edward C. Schmults, Deputy Attorney General, from
Theodore B. Olson, Assistant Attorney General, Of?ce of Legal Counsel at 2 (July 29, 1982)
(?Olson Memorandum?).

Although the White House has opposed sending senior advisers to testify for almost as
long as there has been an Executive Of?ce of the President, Assistant Attorney General William
Rehnquist ?rst described the legal basis for immunity in a 1971 memorandum. See
Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from
William H. Rehnquist, Assistant Attorney General, Of?ce of Legal Counsel, Re: Power of
Congressional Committee to Compel Appearance or Testimony of ?White House Sta?? (Feb. 5,
1971) (?Rehnquist Memorandum?). The Rehnquist Memorandum has been consistently
reaf?rmed by administrations of both political parties, most recently during the Obama
Administration. See, e. g. Immunity of the Assistant to the President and Director of the O?ice
of Political Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C. *1 n.1
(July 15, 2014) (?Immunity of the Assistant to the President?).

We believe that these established principles apply to bar the Committee from compelling
Mr. McGahn to testify. The Counsel to the President clearly quali?es as a senior adviser entitled
to testimonial immunity. Attorney General Reno reached that conclusion in her 1999 opinion,
and this Of?ce has made the same determination on at least three other occasions. We have also.
recognized that the immunity continues to apply after the Counsel leaves the White House. See
Immunity of the Former Counsel to the President from Compelled Congressional Testimony, 31
Op. O.L.C. 191, 192 (2007) (?Immunity of the Former Counsel?).

The Chairman of the Committee has suggested that the justi?cation for Mr. McGahn?s
testimonial immunity is undermined by the President?s decision not to assert executive privilege
over the redacted version of the Special Counsel?s report that the Attorney General released last
month. See, e. g. Letter for Donald F. McGahn II, from Jerrold Nadler, Chairman, Committee on
the Judiciary, US. House of Representatives at 1 (May 17, 2019) (?Nadler Letter?). But the
question whether an adviser need comply with a subpoena purporting to require an appearance is
different from the question whether the adviser?s testimony would itself address privileged
matters. Therefore, the public disclosure of the Special Counsel?s report does not have any legal
bearing upon the force of the congressional subpoena. For these reasons, and consistent with
nearly 50 years of executive branch precedent, we conclude that Mr. McGahn is not legally
required to appear and testify before the Committee.

I.

Since the 19705, this Of?ce has consistently advised that ?the President and his
immediate advisers are absolutely immune from testimonial compulsion by a Congressional
committee? on matters related to their of?cial duties. Memorandum for All Heads of Of?ces,
Divisions, Bureaus and Boards of the Department of Justice, from John M. Harmon, Acting
Assistant Attorney General, Of?ce of Legal Counsel, Re: Executive Privilege at 5 (May 23,
1977) (?Harmon Memorandum?); see also Rehnquist Memorandum at 7 (?The President and his
immediate advisers??that is, those who customarily meet with the President on a regular or
frequent basisw?should be deemed absolutely immune from testimonial compulsion by a
congressional committee?). Indeed, this Of?ce has endorsed that legal principle on more than a
dozen occasions, over the course of the last eight presidential administrations.1

 

1 See Immunity of the Assistant to the President, 38 Op. O.L.C. at Letter for Fred F. Fielding, Counsel
to the President, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Of?ce of Legal Counsel at
1?2 (Aug. 1, 2007) (?Bradbury Letter?); Immunity of the Former Counsel, 31 Op. O.L.C. at 191; Reno Opinion, 23
Op. O.L.C. at 4; Immunity of the Counsel to the President from Compellea? Congressional Testimony, 20 Op. O.L.C.
308, 308 (1996) (?Immunity of the Counsel to the President?); Letter for Jack Brooks, Chairman, Committee on the
Judiciary, US. House of Representatives, from Nicholas E. Calio, Assistant to the President for Legislative Affairs
at 1 (June 16, 1992) (?Calio Letter?); Olson Memorandum at 2; Memorandum for Rudolph W. Giuliani, Associate
Attorney General, from Theodore B. Olson, Assistant Attorney General, Of?ce of Legal Counsel, Re:
Congressional Demand for Deposition of Counsel to the President Fred F. Fielding at 2 (July 23, 1982)
(?Congressional Demand for Deposition of Counsel Memorandum for Fred F. Fielding, Counsel to the President,
from Theodore B. Olson, Assistant Attorney General, Of?ce of Legal Counsel, Re: Congressional Testimony by
Presidential Assistants at 1 (Apr. 14, 1981); Memorandum for Margaret McKenna, Deputy Counsel to the President,
from John M. Harmon, Assistant Attorney General, Of?ce of Legal Counsel, Re: Dual-Purpose Presidential
Advisers at 5 (Aug. 11, 1977); Harmon Memorandum at 5; Letter to Phillip E. Areeda, Counsel to the President,

This testimonial immunity is distinct from, and broader than, executive privilege. Like
executive privilege, the immunity protects con?dentiality within the Executive Branch and the
candid advice that the Supreme Court has acknowledged is essential to presidential decision-
making. See United States v. Nixon, 418 US. 683, 705 (1974) (?Human experience teaches that
those who expect public dissemination of their remarks may well temper candor with a concern
for appearances and for their own interests to the detriment of the decisionmaking process?).
But the immunity extends beyond answers to particular questions, precluding Congress from
compelling even the appearance of a senior presidential adviser?as a function of the
independence and autonomy of the President himself. In this regard, the President?s immediate
advisers are constitutionally distinct from the heads of executive departments and agencies,
whose of?ces are created by acts of Congress, whose appointments require the Senate?s advice
and consent, and whose responsibilities entail the administration of federal statutes. Those
of?cers can and do testify before Congress. The President?s immediate advisers, however,
exercise no statutory authority and instead act solely to advise and assist the President. Their
independence from Congress re?ects that of the President.

A.

The President stands at the head of a co?equal branch of government. Yet allowing
Congress to subpoena the President to appear and testify would ?promote a perception that the
President is subordinate to Congress, contrary to the Constitution?s separation of governmental
powers into equal and coordinate branches.? Immunity of the Assistant to the President, 38 Op.
O.L.C. at As Assistant Attorney General Theodore Olson explained in 1982: ?The President
is a separate branch of government. He may not compel congressmen to appear before him. As
a matter of separation of powers, Congress may not compel him to appear before it.? Olson
rMemorandum at 2. The President?s immediate advisers are an extension of the President and are
likewise entitled to absolute immunity from compelled congressional testimony.

In 2014, our most recent opinion on the topic described the bases for this immunity in
detail. ?For the President?s absolute immunity to be fully meaningful,? we explained, ?and for
these separation of powers principles to be adequately protected, the President?s immediate
advisers must likewise have absolute immunity from congressional compulsion to testify about
matters that occur during the course of discharging their of?cial duties.? Immunity of the
Assistant to the President, 38 Op. O.L.C. at The demands of the of?ce require the President
to rely on senior advisers who serve ?as the President?s alter ego, assisting him on a daily basis
in the formulation of executive policy and resolution of matters affecting the military, foreign
affairs, and national security and other aspects of his discharge of his constitutional
responsibilities.? Id. at *3 (quoting Reno Opinion, 23 Op. O.L.C. at see also In re Sealed

 

from Antonin Scalia, Assistant Attorney General, Of?ce of Legal Counsel (Sept. 25, 1974) (enclosing a
memorandum, hereinafter ?Scalia Memorandum?); Memorandum for John W. Dean Counsel to the President,
from Roger C. Cramton, Assistant Attorney General, Of?ce of Legal Counsel, Re: Availability of Executive
Privilege Where Congressional Committee Seeks Testimony of Former White House Official 0n Advice Given
President on Of?cial Matters at 6 (Dec. 21, 1972) (?Cramton Memorandum?); Memorandum for John W. Dean 
Counsel to the President, from Ralph E. Erickson, Assistant Attorney General, Of?ce of Legal Counsel, Re:
Appearance of Presidential Assistant Peter lanigan Before a Congressional Committee at 1 (Mar. 15, 1972)
(?Erickson Memorandum?); Rehnquist Memorandum at 7.

Case, 121 F.3d 729, 750 (DC. Cir. 1997) (?The President himself must make decisions relying
substantially, if not entirely, on the information and analysis supplied by advisers?).

There are dozens of congressional committee and subcommittees with the authority to 
conduct hearings and subpoena witnesses. Recognizing a congressional authority to compel the
President?s immediate advisers to appear and testify at the times and places of their choosing
would interfere directly with the President?s ability to faithfully discharge his responsibilities. It
would allow congressional committees to ?wield their compulsory power to attempt to supervise
the President?s actions, or to harass those advisers in an effort to in?uence their conduct, retaliate
for actions the committee disliked, or embarrass and weaken the President for partisan gain.?
Immunity of the Assistant to the President, 38 Op. O.L.C. at And in the case of the
President?s current advisers, preparing for such examinations would force them to divert time
and attention from their duties to the President at the whim of congressional committees. This
?would risk signi?cant congressional encroachment on, and interference with, the President?s
prerogatives and his ability to discharge his duties with the advice and assistance of his closest
advisers,? ultimately subordinating senior presidential advisers to Congress rather than the
President. Id; see also Loving v. United States, 517 US. 748, 757 (1996) (?Even when a branch
does not arrogate power to itself . . . the separation?of-powers doctrine requires that a branch not
impair another in the performance of its constitutional duties?).

The immunity of senior presidential advisers also protects the Executive Branch?s strong
interests in con?dentiality as well as the President?s ability to obtain sound and candid advice.
As the Supreme Court has recognized, President and those who assist him must be free to
explore alternatives in the process of shaping policies and making decisions and to do so in a
way many would be unwilling to express except privately.? Nixon, 418 US. at 708. While a
senior presidential adviser, like other executive of?cials, could rely on executive privilege to
decline to answer speci?c questions at a hearing, the privilege is insuf?cient to ameliorate
several threats that compelled testimony poses to the independence and candor of executive
councils.

First, compelled congressional testimony ?create[s] an inherent and substantial risk of
inadvertent or coerced disclosure of con?dential information,? despite the availability of claims
of executive privilege with respect to the speci?c questions asked during such testimony.
Immunity of the Assistant to the President, 38 Op. O.L.C. at As we explained in 2014, senior
presidential advisers

could be asked, under the express or implied threat of contempt of Congress, a wide
range of unanticipated and hostile questions about highly sensitive deliberations and
communications. In the heat of the moment, without the opportunity for careful
re?ection, the adviser might have dif?culty con?ning his remarks to those that do not
reveal such sensitive information. Or the adviser could be reluctant to repeatedly invoke
executive privilege, even though validly applicable, for fear of the congressional and
media condemnation she or the President might endure.

Id; see also Congressional Demand for Deposition of Counsel, supra note 1, at 2 witness
before a Congressional committee may be asked-under threat of contempt?a wide range of
unanticipated questions about highly sensitive deliberations and thought processes. He therefore

may be unable to con?ne his remarks only to those which do not impair the deliberative
process?).

Second, even ?[t]he prospect of compelled interrogation by a potentially hostile
congressional committee about con?dential communications with the President or among the
President?s immediate staff could chill presidential advisers from providing unpopular advice or
from fully examining an issue with the President 0r others.? Immunity of the Assistant to the
President, 38 Op. O.L.C. at*4. This is true whether or not the President might ultimately assert
executive privilege over the testimony in question, given the adviser?s uncertainty over whether a
particular matter will become the subject of future congressional inquiry and whether the
President would choose to incur the political costs associated with invoking the privilege.

Finally, given the frequency with which the testimony of a senior presidential adviser?
whose sole and daily responsibility is to advise and assist the President??would fall within the
scope of executive privilege, compelling the adviser?s appearance is not likely to promote any
valid legislative interests. Coercing senior presidential advisers into situations where they must
repeatedly decline to provide answers, citing executive privilege, would be inef?cient and
contrary to good-faith governance. The President?s immediate advisers, if compelled to testify,
are unlikely to answer many of the Members? questions, suggesting that the hearing itself will
not serve any legitimate purpose for the Committee.

B.

The Executive Branch?s position on testimonial immunity re?ects historical practices
dating back nearly to the 1939 establishment of the Executive Of?ce of the President. As
Assistant Attorney General Antonin Scalia explained in a 1974 memorandum, ?at least since the
Truman Administration,? presidential advisers f?have appeared before congressional committees
only where the inquiry related to their own private affairs or where they had received
Presidential permission.? Sealia Memorandum, supra note 1, at 6. Although Presidents have
occasionally permitted such testimony, the long-standing policy has been to decline invitations
for voluntary appearances and to resist congressional subpoenas for involuntary ones.

In surveying the history through 1971, Assistant Attorney General Rehnquist described
the earliest application of the policy to be inconclusive and at times inconsistent. See Rehnquist
Memorandum at 4?6. But even when senior presidential advisers did appear, those appearances
were frequently accompanied by a claim of legal privilege not to do so. Assistant Attorney
General Rehnquist thus described the claim as an absolute testimonial immunity for the
President?s immediate advisers, see id at 7, and this Of?ce has reaf?rmed and expanded upon
that conclusion in the decades since. The following examples, while not exhaustive, demonstrate
the strong historical foundation for the Executive Branch?s position that Congress may not
compel the President?s senior advisers to appear and testify.

In 1944, during the Administration of Franklin D. Roosevelt, a subcommittee of the
Senate Committee on Agriculture and Forestry subpoenaed Jonathan Daniels, an Administrative
Assistant to President Roosevelt, to testify about his reported attempts to compel the resignation
of the Rural Electri?cation Administrator. See Administration of the Rural Electri?cation Act:
Hearing on S. 197 Before a Subcomm. of the S. Comm. on Agric. and Forestry, 78th Cong, pt. 3,

at 611?28, 629 (1944). Mr. Daniels appeared at the hearing but advised that he could not answer
questions that would concern his con?dential relationship with the President. Id. After the
hearing ended with the subcommittee threatening contempt, Mr. Daniels wrote to the
subcommittee and reiterated his belief that the subcommittee could not compel his testimony.
See id. at 740. However, he stated that the President had determined that his testimony would
not be contrary to the public interest and that he therefore was willing to appear in the future.

See id; see also id at 695?740. The New York Times reported that ?[w]ith Daniels? agreement to
testify disappeared the possibility of using his previous de?ance as the ?rst test of the division
between executive and legislative power before the Senate.? Daniels to Answer Senators?
Queries: President Agrees, NY. Times, Mar. 5, 1944, at 1.

The ?rst outright refusal of a presidential adviser to appear apparently occurred during
the Truman Administration, in 1948, when a special subcommittee of the House Committee on
Education and Labor twice subpoenaed John R. Steelman, an Assistant to the President, to testify
about his communications with President Truman regarding administration of the Taft-Hartley
Act during a strike. See Investigation of GSI Strike: Hearing Before a Special Subcomm. of the
Comm. on Educ. and Labor, 80th Cong. 347?53 (1948). Mr. Steelman declined to comply
and returned the subpoenas with a letter stating: each instance the President directed me, in

View of my duties as his Assistant, not to appear before your subcommittee.? H.R. Rep. No. 80-
1595, at 3 (1948).

During the Eisenhower Administration, in 1955, a subcommittee of the Senate
Committee on the Judiciary invited the President?s Chief of Staff, Sherman Adams, to testify
about a contract between the Atomic Energy Commission and two power companies. He
declined, citing in part his ?of?cial and con?dential relationship with the President.? Power
Policy, Dixon-Y ates Contract: Hearing Before the Subcomm. on Antitrust and Monopoly 0f the
S. Comm. on the Judiciary, 84th Cong, pt. 2, at 675?76, 779 (1955). Later, in 1958, Mr. Adams
testi?ed, with President Eisenhower?s approval, before a House subcommittee concerning
allegations of impropriety relating to his relationship with a New England industrialist.
Investigation of Regulatory Commissions and Agencies: Hearing Before a Subcomm. of the H.
Comm. on Interstate and Foreign Commerce, 85th Cong, pt. 10, at 3712?40 (1958).

During the Administration of President Lyndon B. Johnson, in 1968, the Senate
Committee on the Judiciary requested the testimony of Associate Special Counsel to the
President W. DeVier Pierson to testify concerning the nomination of Associate Justice Abe
Fortas to be Chief Justice of the United States. The inquiry concerned whether Justice Fortas
had inappropriately participated in developing certain legislation. Mr. Pierson responded that
has been ?rmly established, as a matter of principle and precedents, that members of the
President?s immediate staff shall not appear before a Congressional committee to testify with
respect to the performance of their duties on behalf of the President.? Nominations of Abe
Fortas and Homer hornberry: Hearing Before the S. Comm. on the Judiciary, 90th Cong, pt. 2,
at 1348 (1968). He continued: ?This limitation, which has been recognized by the Congress as
well as the Executive, is fundamental to our system of government. I must, therefore,
respectfully decline the invitation to testify in these hearings.? Id.

In 1972, during the Nixon Administration, the Senate Committee on the Judiciary invited
Peter M. Flanigan, an Assistant to the President, to testify. This Of?ce advised that Mr. Flanigan

occupied ?a close and con?dential relationship with the President and share[d] the President?s
immunity from congressional process.? Erickson Memorandum, supra note 1, at 1. Our
disposition was clear: has been ?rmly established that members of the President?s
immediate staff may not appear before a congressional committee to testify with respect to the
performance of their duties.? Id.2

In 1979, during the Carter Administration, Special Assistant to the President Sarah
Weddington was invited to testify before the Senate Human Resources Committee as part of a
hearing on ?Women in the Coming Decade.? At the instruction of the Counsel to President, she
declined to appear, explaining that ?it is White House policy for personal aides to the President
to decline invitations to testify before Congressional committees.? Letter for Harrison A.
Williams, US. Senate, from Sarah Weddington, Special Assistant to the President at 1 (Jan. 31,
1979) (?Weddington Letter?). She offered, however, to meet informally with committee
members or staff to discuss related programs and proposals. Id. at 2.

In 1980, the Subcommittee on Investigations of the House Committee on Armed Services
requested the testimony of Deputy Assistant to the President for National Security Affairs David
Aaron concerning leaks to The Washington Post. President Carter directed Mr. Aaron not to
appear. The Counsel to the President, Lloyd N. Cutler, explained that ?Congress has always
respected the privilege of the President to decline requests that the President himself or his
immediate White House advisors appear to testify before Congressional committees,? instead
provided a sworn af?davit by Mr. Aaron denying the allegations, and offered to make Mr. Aaron
available for an interview or deposition under oath. Letter for Samuel S. Stratton, Chairman,
Subcommittee on Investigation of the Committee on Armed Services, US. House of
Representatives, from Lloyd N. Cutler, Counsel to the President at 1?2 (Sept. 30, 1980).

In 1982, during the Reagan Administration, the Senate Labor and Human Resources
Committee sought the testimony of Counsel to the President Fred F. Fielding concerning
allegations of corruption against Secretary of Labor Raymond Donovan. Mr. Fielding declined
to appear and testify. See Olson Memorandum at 1?4 (explaining the legal basis for that
decision). Deputy Attorney General Edward C. Schmults noti?ed the Committee that, an
institutional matter, the President cannot permit his Counsel to provide sworn testimony to the
Legislative Branch regarding the performance of his duties,? but offered to arrange for written
responses to a reasonable number of written inquiries. Letter for Orrin G. Hatch, Chairman,
Committee on Labor and Human Resources, US. Senate, from Edward C. Schmults, Deputy
Attorney General at 2?3 (Apr. 19, 1983) (?Schmults Letter?).

In 1992, during the George H.W. Bush Administration, the House Committee on the
Judiciary requested that C. Boyden Gray, Counsel to the President, and Nicholas Rostow,

 

2 In connection with the Watergate investigations, President Nixon reached an agreement with the Senate?s
Watergate Select Committee to authorize current and former White House of?cials to appear voluntarily and under
oath before the committee in closed session. See Remarks Announcing Procedures and Developments in
Connection With the Watergate Investigations (Apr. 17, 1973), Pub. Papers of Pres. Richard Nixon 298, 298?~99
(1973). President Nixon later determined that he would not claim executive privilege over the subject matters of the
testimony and would allow the witnesses to testify in open hearings. See Statements About the Watergate
Investigations (May 22, 1973), Pub. Papers of Pres. Richard Nixon at 547, 554 (1973). He therefore waived the
testimonial immunity to authorize those appearances.

Special Assistant to the President and a Senior Director for Legal Affairs at the National Security
Council, testify concerning Bush Administration policies towards Iraq prior to the ?rst Gulf War.
The White House declined, citing ?the longstanding practice of the Executive Branch to decline
requests for testimony by members of the President?s personal staff.? Calio Letter, supra note I,
at 1.

In 1999, President Clinton directed Counsel to the President Beth Nolan not to appear in
response to a subpoena from the House Committee on Government Reform and Oversight
concerning a clemency decision. President Clinton relied on an opinion from Attorney General
Reno that concluded that ?the Counsel serves as an immediate adviser to the President and is
therefore immune from compelled congressional testimony? on matters related to the
performance of of?cial duties. Reno Opinion, 23 Op. O.L.C. at 4.

In 2007, during the George W. Bush Administration, the House Committee on the
Judiciary subpoenaed former Counsel to the President Harriet Miers to testify about the
Department of Justice?s decision to request the resignation of certain United States Attorneys.
President Bush directed Ms. Miers not to testify after this Of?ce concluded that she was
?immune from compelled congressional testimony about matters . . . that arose during her tenure
as Counsel to the President and that relate to her of?cial duties in that capacity.? Immunity 0f the
Former Counsel, 31 Op. O.L.C. at 193.

Also in 2007, the Senate Committee on the Judiciary subpoenaed the testimony of Karl
Rove, the Deputy White House Chief of Staff, on the same subject. This Of?ce con?rmed that
Mr. Rove was ?immune from compelled congressional testimony about matters (such as the US.
Attorney resignations) that arose during his tenure as an immediate presidential adviser and that
relate to his of?cial duties in that capacity.? Bradbury Letter, supra note 1, at 1?2. In 2008, a
subcommittee of the House Committee on the Judiciary also subpoenaed Mr. Rove, and he was
again directed not to testify. See Letter for Robert D. Luskin, Patton Boggs LLP, from Fred F.
Fielding, Counsel to the President at 1 (July 9, 2008).

In 2014, during the Obama Administration, the House Committee on Oversight and
Government Reform issued a subpoena to David Simas to testify about matters related to his
of?cial responsibilities as Assistant to the President and Director of the Of?ce of Political
Strategy and Outreach. In particular, the committee requested testimony regarding ?the role and
function of the White House Of?ce of Political Strategy and Outreach? and the question
?whether the White House [was] taking adequate steps to ensure that political activity by
Administration of?cials complies with relevant statutes, including the Hatch Act.? Immunity 0f
the Assistant to the President, 38 Op. O.L.C. at *1 (internal quotation marks omitted). This
Of?ce concluded that Mr. Simas was ?immune from compulsion to testify before the
[c]ommittee on these matters,? id. and he declined to testify.

The foregoing historical record demonstrates that the immunity of senior presidential
advisers from congressional testimony is long-standing and hasbeen repeatedly asserted against
the requests of Congress. These examples do not indicate that senior presidential advisers have
always declined to testify before Congress. The practice of asserting testimonial immunity?just
like the practice of asserting executive privilege?has long re?ected the ?spirit of dynamic
compromise? that re?ects the ?ef?cient and effective functioning? of the political branches of

government. United States v. Am. Tel. Tel. 567 F.2d 121, 127 (DC. Cir. 1977).
Presidents have occasionally made senior advisers available to accommodate congressional
requests, even while defending their legal authority to decline such requests. But these
accommodations between the political branches do not compromise the underlying immunity of
the President or his senior presidential advisers from compelled congressional testimony. Nor do
they nullify the many instances where Presidents have successfully asserted immunity and
af?rmatively directed their immediate aides not to testify before Congress.

C.

While the Executive Branch has asserted for 75 years that senior presidential advisers
may decline to testify before Congress, and has formally asserted an immunity for nearly 50
years, neither the Supreme Court nor any court of appeals has speci?cally addressed the
question. This is because disputes over congressional demands for information from the
Executive Branch are inherently political, and the historical practice has been to resolve such
questions in the political arena. When such con?icts have arisen, Congress has either acceded to
the President?s claims of immunity or the Executive Branch has accommodated the
congressional interest in some fashion. Only one district court has ever addressed the testimonial
immunity of the President?s senior advisers, and that decision did not come until 2008. See
Comm. 0n the Judiciary, US. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C.
2008). Although the district court held that presidential advisers were not entitled to absolute
immunity from compelled congressional testimony, the court of appeals stayed that decision
pending appeal, and the parties settled without any appellate decision on the merits.

Nonetheless, this Office has recognized that the Executive Branch?s long-standing
position is consistent with related Supreme Court precedent. See Immunity of the Assistant to the
President, 38 Op. O.L.C. at In Gravel v. United States, 408 US. 606 (1972), the Court held
that legislative aides share in the constitutional immunity enjoyed by Members of Congress
under the Speech or Debate Clause. Id. at 616?17. The Court reasoned that the Clause ?was
designed to assure a co?equal branch of the government wide freedom of speech, debate, and
deliberation without intimidation or threats from the Executive Branch,? and ?protect[ion] . . .
against prosecutions that directly impinge upon or threaten the legislative process.? Id. at 616.
Because ?it is literally impossible . . . for Members of Congress to perform their legislative tasks
without the help of aides and assistants,? the Court recognized that such aides ?must be treated as
the [Members?] alter egos.? Id. at 616-17. For purposes of immunity, the Court concluded,
Members of Congress and their aides should be ?treated as one.? Id. at 616 (internal quotation
marks omitted). The same logic applies with respect to the President and his senior advisers.
The failure to recognize the extension of the President?s immunity from compelled congressional
testimony to senior advisers would call into question the well?established extension of derivative
immunity to congressional staffers.

It is true that in Harlow v. Fitzgerald, 457 US. 800 (1982), the Court declined to extend
Gravel ?s alter?ego reasoning to a civil suit for damages against senior presidential advisers, and
instead concluded that such advisers are entitled only to quali?ed immunity in those civil
actions. Id. at 810?1 1, 813?15. Harlow thus distinguished the President?s immediate advisers
from the President himself, whom the Court held (in another decision issued the same day) to be
absolutely immune from civil suits based on official acts. See Nixon v. Fitzgerald, 457 US. 731,

749 (1982). Yet we have previously declined to extend Harlow to the context of testimonial
immunity because the prospect of compelled congressional testimony raises separation of powers
concerns that are not present in a civil damages lawsuit brought by a private party. Immunity of
the Assistant to the President, 38 Op. O.L.C. at Compelled congressional testimony
?threatens to subject presidential advisers to coercion and harassment, create a heightened
impression of presidential subordination to Congress, and cause public disclosure of con?dential
presidential communications in a way that the careful development of evidence through a
judicially monitored [proceeding] does not.? Id. at In a private lawsuit, the court ?acts as a
disinterested arbiter of a private dispute, not as a party in interest to the very lawsuit it
adjudicates,? and it ?is charged with impartially administering procedural rules designed to
protect witnesses from irrelevant, argumentative, harassing, cumulative, privileged, and other
problematic questions.? Id. By contrast, congressional hearings involving the President?s
immediate advisers contain none of those assurances, and they threaten the President?s autonomy
and ability to receive sound and candid advice in a way that private civil damages suits do not.
Cf Archibald Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383, 1429 (1974) (stating that as
compared to a civil action, ?[t]he need to protect aides and subordinates from reprisals on Capitol
Hill and in the media of public debate is a thousand-fold greater in the case of congressional .
hearings, which are often the preserves of individual Senators and Congressmen not all of whom
are invariably characterized by judicious self?restraint?).

We recognize that in Miers, a federal district court read Harlow to imply that senior
presidential advisers do not enjoy absolute immunity from congressionally compelled testimony.
See Miers, 558 F. Supp. 2d at 100?03. But we believe that the court did not adequately consider
the different and heightened separation of powers concerns bearing upon the testimony of the
President?s immediate advisers before Congress. Moreover, the district court?s decision was
stayed pending appeal. See Comm. on the Judiciary of the US. House of Representatives v.
Miers, 542 F.3d 909, 910?11 (DC. Cir. 2008) (per curiam). The case settled and the appeal was
dismissed before any further action by the court of appeals. Comm. on the Judiciary of the US.
House of Representatives v. Miers, No. 08-5357, 2009 WL 3568649, at *1 (DC. Cir. Oct. 14,
2009). For the reasons set forth above, and in greater detail in our 2014 opinion, Immunity of the
Assistant to the President, 38 Op. O.L.C. at we respectfully disagree with the district
court?s conclusion in Miers and adhere to this Of?ce?s long-established position that the
President?s immediate advisers are absolutely immune from compelled congressional testimony.

11.

Having reaf?rmed the existence of the testimonial immunity of the President?s immediate
advisers, we now consider its application to Mr. McGahn, the former Counsel to the President.
Plainly, the Counsel to the President quali?es as an immediate adviser to the President. As
Attorney General Reno recognized, ?the Counsel serves as an immediate adviser to the President
and is therefore immune from compelled congressional testimony.? Reno Opinion, 23 Op.
O.L.C. at 4. Indeed, we have recognized the Counsel?s immunity from congressional testimony
on multiple occasions. See, e. g, Immunity of the Former Counsel, 31 Op. O.L.C. at 192 
Counsel to the President ?serves as an immediate adviser to the President and is therefore
immune from compelled congressional testimony.? (quoting Reno Opinion, 23 Op. O.L.C.
at Immunity of the Counsel to the President, 20 Op. O.L.C. at 309 (?There is no question that
the Counsel to the President falls within Assistant Attorney General Rehnquist?s description of

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the type of Presidential advisers who are immune from testimonial compulsion?); Congressional
Demand for Deposition of Counsel, supra note 1, at 2 believe the Counsel to the President
possesses an absolute privilege not to testify with regard to any matters relating to his of?cial
duties as legal adviser to the President?).

In addition, we have recognized that testimonial immunity continues after the tenure of a
particular Counsel to the President. As we explained in 2007, ?[s]eparation of powers principles
dictate that former presidents and former senior presidential advisers remain immune from
compelled congressional testimony about of?cial matters that occurred during their time as
President or senior presidential advisers.? Immunity of the Former Counsel, 31 Op. O.L.C. at
192?93. The Supreme Court has explicitly recognized this principle in the context of executive
privilege. The privilege must outlast the tenure of a particular President because, absent a
guarantee of lasting con?dentiality, ?a President could not expect to receive the full and frank
submissions of facts and opinions upon which effective discharge of his duties depends.? Nixon
v. Adm ?r of Gen. Servs., 433 U.S. 425, 449 (1977) (adopting the view of the Solicitor General);
see also United States v. Johnson, 383 U.S. 169 (1966) (applying the Speech or Debate Clause to
a former Member of Congress).

In concluding that the former Counsel to the President retained her testimonial immunity,
we relied upon the actions of former President Truman, who explained his own refusal to appear
and testify before the House Committee on Un?American Activities in the following terms: 
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 of?ce has expired
when he is sought to be examined with respect to any acts occurring while he is President.?
Immunity of the Former Counsel, 31 Op. O.L.C. at 193 (quoting Texts of Truman Letter and
Vela?e Reply, NY. Times, Nov. 13, 1953, at 14 (reprinting Nov. 12, 1953 letter by President
Truman)). It is ?just as important to the independence of the Executive that the actions of the
President should not be subjected to the questioning by the Congress after he has completed his
term of of?ce as that his actions should not be questioned while he is serving as President.? Id.
(quoting ext of Address by Truman Explaining to Nation His Actions in the White Case, NY.
Times, Nov. 17, 1953, at 26). Because the immunity of senior presidential advisers derives from
the immunity of the President, this same logic extends to them as well.

Our 2007 conclusion in Immunity of the Former Counsel was consistent with the analysis
of the immunity interests of former of?cials during the George H.W. Bush and Nixon
Administrations. See Letter for Arthur B. Culvahouse, O?Melveny Myers, from C. Boyden
Gray, Counsel to the President at 1 (June 17, 1992) is long?standing White House policy
not to assent to formal testimony to Congressional committees by former White House of?cials
about matters occurring during their White House service?). It is true that the President does not
have the same need for the daily advice and assistance of his former advisers, as with his current
advisers, yet the con?dentiality interests associated with the advisers? former role remain just as
strong. See Cramton Memorandum, supra note 1, at 5?6 (?If advice from a staff member were
protected from congressional and public scrutiny only for so long as the staff member remained
employed in the White House, the protection would be signi?cantly reduced. It would only be a
question of time when staff turnovers or a change in administration would remove the shield?).

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Even more signi?cantly, the risk to the separation of powers and to the President?s
autonomy posed by a former adviser?s testimony on of?cial matters continues after the
conclusion of that adviser?s tenure. See id. at 6 same considerations that were persuasive
to former President Truman would apply to justify a refusal to appear by such a former staff
member, if the scope of his testimony is to be limited to his activities while serving in that
capacity?). Accordingly, consistent with our prior precedents, we ?nd no material distinction
between the compelled congressional testimony of current and former senior advisers to the
President. Mr. McGahn?s departure as Counsel to the President does not alter his immunity from
compelled congressional testimony on matters related to his service to the President.



In this instance, the Committee seeks to question Mr. McGahn concerning matters
addressed in the report of Special Counsel Robert S. Mueller, on the Investigation into
Russian Interference in the 2016 Presidential Election. The Chairman of the Committee has
suggested that the White House?s voluntary cooperation with this investigation and the
President?s decision not to assert executive privilege over the Special Counsel?s report may
undermine any claim that Mr. McGahn is immune from compelled testimony. Nadler Letter at 1.
However, the concept of immunity is distinct from, and broader than, the question whether
executive privilege would protect a witness?s response to any particular question. See Rehnquist
Memorandum at 4 (recognizing the ?distinction between a claim of absolute immunity from even
being sworn as a witness, and a right to claim privilege in answer certain questions in the course
of one?s testimony as a The President does not waive an adviser?s immunity from
compelled congressional testimony by authorizing disclosure of any particular information. To
the contrary, Presidents have frequently authorized aides to share information as an
accommodation to Congress, notwithstanding claims of immunity.

The immunity from compelled congressional testimony implicates fundamental
separation of powers principles that are separate from the con?dentiality of speci?c information.
See supra Part IA. The constitutional interest in protecting the autonomy and independence of
the Presidency remains the same no matter whether the compelled testimony from a presidential
adviser would implicate public or potentially privileged matters. The President does not waive
his own immunity from compelled congressional testimony by making public statements on a
given subject. It follows then that the derivative immunity of senior presidential advisers is not
waived either.

Were the rule otherwise, Presidents could not offer partial accommodations to Congress
without waiving all privileges or immunities bearing upon the subject. Such a rule would
severely hinder the ?spirit of dynamic compromise? and ?implicit constitutional mandate to seek
optimal accommodation? that currently facilitates resolution of inter?branch disputes over
information. Am. Tel. Tel. Ca, 567 F.2d at 127. And such a rule would stand in marked

 

3 The Reno Opinion described the testimonial immunity as ?a separate legal basis that would support a
claim of executive privilege for the entirety of the Counsel?s testimony, thereby eliminating any need for her to
appear at the hearing.? 23 Op. O.L.C. at 4. We think that the Rehnquist Memorandum?s distinction between an
immunity and a privilege reflects the more precise formulation, but the distinction appears to be merely a semantic
one.

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contrast to many instances of historical practice in which senior advisers declined to testify
before Congress, but instead offered accommodations through informal meetings or written
responses. See, e. g, Schmults Letter at 2~3; Weddington Letter at 1?2. Yet no one has viewed
such accommodations, or the testimony of other executive advisers on similar subjects, to
constitute a general waiver of immunity.

The Chairman?s suggestion that Mr. McGahn can no longer claim immunity appears to
be based upon the assumption that the President waived executive privilege by authorizing Mr.
McGahn and his senior aides to cooperate with the Special Counsel?s investigation. But the
question of privilege is distinct from the issue of immunity. And in any event, the premise of the
Committee?s position is incorrect. The sharing of information between one arm of the Executive
Branch and another does not compromise the President?s interest in con?dentiality. Indeed, in
Nixon v. Administrator of General Services, the Supreme Court rejected a separation of powers
objection to the disclosure of presumptively con?dential information because ?[t]he Executive
Branch remains in full control of the Presidential materials, and . . . the materials can be released
only when release is not barred by some applicable privilege inherent in that branch.? 433 US
at 444. Information that was shared with the Special Counsel was shared within the Executive
Branch. Such voluntary sharing does not waive con?dentiality or the underlying privilege.

This conclusion is consistent with past assertions of executive privilege. In Assertion of
Executive Privilege Concerning the Special Counsel ?s Interviews of the Vice President and
Senior White House Sta?, 32 Op. O.L.C. 7 (2008), Attorney General Michael Mukasey advised
that the President could assert executive privilege against Congress over memoranda recording
interviews of White House witnesses with Department of Justice investigators. Id at 9?13. As
he explained, ?[w]ere future presidents, vice presidents or White House staff to perceive that
such voluntary cooperation would create records that would likely be made available to Congress
(and then possibly disclosed publicly outside of judicial proceedings such as a trial), there would
be an unacceptable risk that such knowledge could adversely impact their willingness to
cooperate fully and candidly in a voluntary interview.? Id at 11. Implicit in that explanation
was the understanding that the White House?s voluntary cooperation with the Department?s
investigation did not constitute a waiver of privilege against third parties outside the Executive
Branch. So, too, the White House?s voluntary cooperation with the Special Counsel?s
investigation did not effect a waiver of privilege, much less a waiver of testimonial immunity.

In contrast :with the White House?s cooperation with the Special Counsel, the Attorney
General?s public release of a redacted version of the Special Counsel?s repOrt (with the
President?s conSent) does extinguish the Executive Branch?s con?dentiality interests in the
precise information that has already been revealed. But, as the DC. Circuit has held, the
?release of a document only waives [executive] privileges for the document or information
speci?cally released, and not for related materials.? In re Sealed Case, 121 F.3d at 741; see id.
all-or-nothing approach has not been adopted with regard to executive privileges
generally, or to the deliberative process privilege in As Assistant Attorney General
Scalia explained, the purposes underlying executive privilege ?would be jeopardized if harmful
information had to be disclosed merely because the President permitted the release of related
information that could be revealed safely.? Scalia Memorandum, supra note 1, at 6?7. Such a
result ?would have the effect of requiring the concealment of much information which would be
released, merely because it was connected with sensitive information.? Id. at 7.

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Thus, the public disclosure of particular information does not waive the Executive
Branch?s con?dentiality interests over the subject matters involved in the prior disclosure. See,
e. g. Assertion of Executive Privilege Concerning the Dismissal and Replacement of US.
Attorneys, 31 Op. O.L.C. 1, 8 (2007) (opinion of Acting Attorney General Paul Clement) (?The
Department[ of ustice]?s accommodation with respect to some White House-Department
communications does not constitute a waiver and does not preclude the President from asserting
executive privilege with respect to White House materials or testimony concerning such
communications?). Consequently, the public disclosure of the Special Counsel?s report did not
constitute a general waiver concerning Mr. McGahn?s communications with the President on
those subjects or on any other subjects. And in any event, as discussed above, the disclosure?s
impact on executive privilege does not ultimately bear on Mr. McGahn?s underlying immunity
from compelled testimony.

IV.

Because Congress may not constitutionally compel Mr. McGahn to testify about his
of?cial duties, the President may lawfully direct him not to appear in response to the House
Judiciary Committee?s subpoena. Should the President provide that direction, Mr. McGahn may
not constitutionally be penalized, civilly or criminally, for following it.

The Department of Justice has long recognized ?that the contempt of Congress statute
was not intended to apply and could not constitutionally be applied to an Executive Branch
of?cial who asserts the President?s claim of executive privilege.? Prosecution for Contempt of
Congress of an Executive Branch O?icial Who Has Asserted a Claim of Executive Privilege,

8 Op. O.L.C. 101, 102 (1984) (?Prosecution for Contempt?); see also Application of 28 US. C.
458 to Presidential Appointment of Federal Judges, 19 Op. O.L.C. 350, 356 (1995) 
criminal contempt of Congress statute does not apply to the President or presidential
subordinates who assert executive privilege?). As Assistant Attorney General Olson explained,
?the Constitution does not permit Congress to make it a crime for an of?cial to assist the
President in asserting a constitutional privilege that is an integral part of the President?s
responsibilities under the Constitution.? Prosecution for Contempt, 8 Op. O.L.C. at 140. To do
so ?would be to deter the President from asserting executive privilege and to make it dif?cult for
him to enlist the aid of his subordinates in the process,? thereby ?burden[ing] and immeasurably
impair[ing] the President?s ability to ful?ll his constitutional duties.? Id. at 134, 137. Assistant
Attorney General Walter Dellinger adhered to that reasoning in 1995, recounting that the
?application of the contempt statute against an assertion of executive privilege would seriously
disrupt the balance between the President and Congress.? Application of 28 US. C. 458 to
Presidential Appointment of Federal Judges, 19 Op. O.L.C. at 356.

This Of?ce has further con?rmed that the same ?principles . . . similarly shield a current
or former senior adviser to the President from prosecution for lawfully invoking his or her
immunity from compelled congressional testimony.? Whether the Department of Justice May
Prosecute White House O?icials for Contempt of Congress, 32 Op. O.L.C. 65, 68 (2008).
Subjecting a senior presidential adviser to prosecution for asserting a good-faith claim of
testimonial immunity would equally impose upon the President ??the untenable position of
having to place a subordinate at the risk of a criminal conviction and possible jail sentence in
order for the President to exercise a responsibility he found necessary to the performance of his

14

constitutional duty.?? Id. (quoting Prosecution for Contempt, 8 Op. O.L.C. at 136). In sum,

[t]o seek criminal punishment for those who have acted to aid the President?s performance of
his duty would be . . . inconsistent with the Constitution.? Id. at 69 (quoting Prosecution for
Contempt, 8 Op. O.L.C. at 142).

We similarly believe that Congress could not lawfully exercise any inherent contempt
authority against Mr. McGahn for asserting immunity. The constitutional separation of powers
bars Congress from exercising its inherent contempt power in the face of a presidential assertion
of executive privilege. An attempt to exercise inherent contempt powers in such a circumstance
would be without precedent and ?would immeasurably burden the President?s ability to assert the
privilege and to carry out his constitutional functions.? Prosecution for Contempt, 8 Op. O.L.C.
at 136. This is so because, as Assistant Attorney General Olson concluded, ?the same reasoning
that suggests that the [criminal contempt] statute could not constitutionally be applied against a
Presidential assertion of privilege applies to Congress? inherent contempt powers as well.? Id. at
140 n.42. Congress may not impede the President?s ability to carry out his constitutionally
assigned functions by ?arrest[ing], bring[ing] to trial, and punish[ing] an executive of?cial who
asserted a Presidential claim of executive privilege.? Id. The same rationale applies equally to
an exercise of inherent contempt powers against a senior aide who has complied with a
presidential direction that he not provide testimony to a congressional committee.

V.

The immunity of the President?s immediate advisers from compelled congressional
testimony on matters related to their of?cial responsibilities has long been recognized and arises
from the fundamental workings of the separation of powers. This immunity applies to the former
White House Counsel. Accordingly, Mr. McGahn is not legally required to appear and testify
about matters related to his of?cial duties as Counsel to the President.

Please let us know if we may be of further assistance.

91%

STEVEN A. ENGEL
Assistant Attorney General

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