Are Top Presidential Advisors Absolutely Immune to Congressional Subpoenas?  No.

© 2020 Dan Cofran

Picture From: Wikimedia Commons

At least 19 White House officials at the President’s direction have refused to appear before Congressional investigative committees to testify and produce documents, claiming “absolute” immunity”*

This includes Attorney General Bill Barr, Secretary of Commerce Wilbur Ross, Secretary of Treasury Steve Mnuchin, former White House Counsel Donald McGahn, Presidential Advisor Kellyanne Conway; and aides and lesser officials in the National Security Council, the Justice Department and the Office of Management and Budget.  A full list is at the end of this post.

The President claims the Constitution’s “separation of powers” structure prohibits the Legislative branch from interfering with the Executive branch’s work, by subpoena or otherwise, based on a president’s need for independent, unrestricted use of his or her extensive presidential powers and for confidentiality to protect frank policy discussions with top presidential advisors. 

This breaks new legal ground.  Federal court decisions have long uniformly held that a president and top advisors do not have absolute immunity.  Instead they have only a limited qualified immunity

The immunity is “qualified” because Congress is a co-equal branch of the federal government with “oversight” powers over the Executive and Judicial branches.  This gives Congress the power to overcome an immunity claim by showing that it has no other way to get the information.  Congress’ oversight authority is broadly construed in the federal courts.  A president can prevail only if the inquiry intrudes into highly sensitive matters like national security or foreign policy. 

If the immunity is “qualified,” the official must appear but he or she can assert “executive privilege” to specific questions, also based on confidentiality or sensitivity like national security or foreign relations. Executive privilege is not total. For example, it does not apply to communications that are part of ongoing criminal or wrongful activity.

No federal court decision over the Constitution’s 231-year history has upheld presidential “absolute” immunity from Congressional inquiries.  From the Supreme Court on down, federal courts have consistently recognized this narrow “qualified” immunity and no more. 

The Miers Decision

Only one federal court in the past has ruled on “absolute” immunity and it ruled against the president.  During the George W. Bush administration, the House Judiciary Committee in 2009 subpoenaed former White House counsel Harriett Miers and then White House Chief of Staff Joshua Bolton to appear and produce documents regarding the alleged firing of nine U. S. attorneys for political reasons, allegedly initiated by Senior Presidential Advisor Karl Rove, barred by federal law.

Ms. Miers and Mr. Bolton asserted “absolute” immunity.  The Congressional committee sued to enforce its subpoena in the District of Columbia federal court.  In a detailed 54-page opinion, Judge John D. Bates (appointed by President George W. Bush) carefully examined the assertion and concluded there was no Constitutional support for the claim.

Judge Bates confirmed that Congress has a broad “power of inquiry” under the Constitution’s Necessary and Proper Clause to implement its Constitutional enumerated powers to legislate, including an enforceable subpoena power, to confirm that a president and all executive branch agencies are following and implementing laws passed by the Congress, as well as to study matters for which Congress may need to legislate in the future.  The power of inquiry is as broad as the power to legislate.

Judge Bates repeated that there wasn’t a single federal court decision supporting absolute immunity to Congressional subpoenas, not even for the president, let alone White House advisors.

Decisions from federal district courts have limited precedential value nationwide.  They are not binding on the Courts of Appeal or the Supreme Court.  They can be persuasive to the extent other federal courts believe they are well-reasoned.  The Miers decision falls in that category.  It frequently has been favorably cited in other

Congressional oversight-Textualism-Originalism-Structural interpretation

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federal court decisions and not just in the District of Columbia.

The Miers decision was appealed to the Court of Appeals for the District of Columbia, but stayed to allow settlement discussions.  The parties were able work the matter out.

The McGahn Decision

Since the Miers decision, the federal court for the District of Columbia just over a month ago, on November 25, 2019, ruled that former White House Counsel Donald McGahn does not have absolute immunity to appear before Congress.  Judge Ketanji Brown Jackson (appointed by President Barack Obama) cited the Miers decision extensively for her ruling.

The decision has been appealed to the Court of Appeals for the District of Colombia.  The appeal is on an expedited schedule.  Oral argument was held on January 3, 2019.  An opinion is expected soon.

The President’s Reasoning

The principal support for “absolute” immunity for a president and senior White House advisors is set forth in two in-house legal opinions of the Office of Legal Counsel from the Clinton and Bush administrations (respectively, subpoenas regarding Clinton clemency decisions and subpoenas in the Miers case regarding the fired U. S. Attorneys).  The Obama OLC took the same position in Congress’ 2012 “Fast and Furious” investigation.

The OLC is headed by a Deputy Attorney General appointed by the President, assisted by 15 to 20 Assistant Deputy Attorneys General, all presidential political appointees, together with career “Attorney Advisors” in the classified service.  The OLC’s main job is to settle legal disagreements between cabinet and other federal agencies. 

In addition, from time to time the presidency will release OLC opinions regarding presidential powers, holding them out as important legal opinions.  This is to be taken with a grain of salt.  These opinions are binding only within the executive agencies, not the courts.  While well-reasoned OLC opinions can be entitled to “persuasive” authority in the courts, the Supreme Court has been clear.  Under our separation of powers principles, “[i]t is emphatically the province and duty of the Judicial Department,” not the Executive, “to say what law is.”  Marbury v. Madison (1803).  Foxes don’t get to guard the chicken house.

The OLC opinions employ a less-used “structural” analysis looking beyond the actual text of the Constitution to reach their conclusions supporting absolute immunity.  Traditional Constitutional analysis generally relies more on the Constitution’s language and history. 

“Textualism” looks to the actual words in the Constitution according to their plain and ordinary meanings as understood at the time written, including reference to the Constitution as a whole to maintain consistency.  If it’s not in the Constitution, it doesn’t exist. 

“Originalism” goes a step further and considers external circumstances, including intent of the drafters, if available, and conditions then prevailing in society.

The OLC opinions pretty must skip the Constitution’s actual text, the Framers’ intent and conditions at the time.  They use “structuralism,” a method that uses a balancing process that looks to the Constitution’s ideological structure, e.g., separation of powers, federalism, etc.   The OLC opinions use separation of powers principles to conclude a president’s ability to exercise his or her Constitutional powers would be curtailed if he or she had to answer to Congressional oversight, indeed, interference.

Because the courts determine what the law is under the Constitution’s separation of powers principles, absolute immunity for a president and aides would give the power to a president to decide for himself or herself what the law is, a fundament violation of the Constitution’ separation of powers structure.  The courts decide what the law is, not the presidency.

This issue likely will make it to the Supreme Court this year, even though the law is well settled, making Supreme Court review (which is discretionary) unnecessary.  Stay tuned.  Be patient.

*   *   *

Officials Claiming Absolute Immunity

Person and Position

Probable Issue

William Barr
Attorney General

Mueller Report
Census Citizenship Question

Wilbur Ross
Secretary of Commerce

Census Citizenship Question

Steven Mnuchin
Secretary of Treasury

Trump Tax Returns

Donald McGahn
Former White House Counsel

Obstruction of Justice

Kellyanne Conway
Presidential Advisor

Hatch Act

Mick Mulvaney
Acting White House Chief of Staff

Ukraine

Robert Blair
Senior Advisor to Mick Mulvaney

Ukraine

Joseph Maguire
Acting Director of National Security

Ukraine

Charles M. Kupperman
Former Dep. Director National Security

Ukraine

John Eisenberg
Senior Presidential Advisor

Ukraine

Preston Wells Griffith
Special Asst. to the President for Economic Policy

Ukraine

Officials Claiming Absolute Immunity

Person and Position

Probable Issue
William Barr
Attorney General
Mueller Report
Census Citizenship Question
Russell Vought
Acting Director of OMB
Ukraine
Michael Duffy
Assoc. Director National Security, OMB
Ukraine
Brian McCormack
Assoc. Director Natural Resources, OMB
Ukraine
Ulrich Brechbuhl
Advisor to Sec. of State Mike Pompeo
Ukraine
Mazars USA LLP AccountingUkraine

*Executive “immunity” should be distinguished from executive “privilege.” If immune, the subpoenaed official doesn’t even need to appear before the Congressional body in question.  An official with “privilege” must appear but can assert executive privilege to specific questions.  Executive privilege is a form of a confidentiality privilege for protecting presidential communications with top advisors and deliberations on policy matters.