Immunity of the Counsel to the President from Compelled Congressional Testimony

Immorality ©If tine Coumsel to the President from Compelled
Congressional Testimony

Executive privilege is assem ble in response to a congressional subpoena seeking the testimony of
the Counsel to the President because the Counsel serves as one of the President’s immediate advis­
ers and is therefore immune from compelled congressional testimony.

September 3, 1996

L e t t e r O p in io n for th e C o un sel to the Pr e s id e n t

You have asked whether it would be consistent with precedent and governing
legal principles to assert executive privilege should a subpoena be issued by a
congressional committee to you, in your capacity as Counsel to the President,
to compel your testimony at a committee hearing concerning the performance of
your official duties. We believe that executive privilege would be assertable on
the basis that you serve as an immediate adviser to the President and are therefore
immune from compelled congressional testimony.
It is the longstanding position of the executive branch that “ the President and
his immediate advisors are absolutely immune from testimonial compulsion by
a Congressional committee.” 1 This position is constitutionally based:

The President is a separate branch of government. He may not com­
pel congressmen to appear before him. As a matter of separation
of powers, Congress may not compel him to appear before it. The
President’s close advisors are an extension of the President.2

Accordingly, “ [n]ot only can the President invoke executive privilege to protect
[his personal staff] from the necessity of answering questions posed by a congres­

1 M emorandum for all Heads o f Offices, Divisions, Bureaus, and Boards of the Department o f Justice, from John
M. H armon, A cting Assistant Attorney G eneral, Office o f Legal Counsel, Re: Executive Privilege at 5 (M ay 23,
1977).
2 M emorandum for Edward C. Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant Attorney
General, O ffice o f Legal Counsel at 2 (Jul. 29, 1982) (discussing subpoena for testimony of the Counsel to the
President). See also Memorandum for the Honorable John W. Dean, HI, Counsel to the President, from Roger C.
Cramton, Assistant Attorney General, O ffice o f Legal Counsel, Re: Availability o f Executive Privilege Where Con -
gressional Committee Seeks Testimony o f Former White House Official on Advice Given President on Official Matters
at 6 (Dec. 21, 1972) (since 4<[a]n immediate assistant to the President may be said to serve as his alter ego . . .
the sam e considerations that were persuasive to former President Truman [when he declined to comply with a con­
gressional subpoena for his testimony] w ould apply to justify a refusal to appear by . . . a fonner staff m em ber");
L etter for Senator Orrin G . Hatch, Chairm an, United States Senate, Committee on Labor and Human Resources
and Senator Edward M. Kennedy, Ranking M inority Member, United States Senate, Committee on Labor and Human
Resources, from Edward C. Schmults, D eputy Attorney General at 2 (Apr. 19, 1983) (“ [0]ur concern regarding
your desire for the sworn testimony of [the Counsel to the President] is based upon important principles relative
to the powers, duties and prerogatives of the Presidency We share with previous Presidents and their advisers senous
reservations regarding the implications for established constitutional doctrines arising from the separation o f powers
o f a Congressional dem and for the sw om testimony o f close presidential advisers on the White House staff.” ).

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 Immunity o f the Counsel to the President from Compelled Congressional Testimony

sional committee, but he can also direct them not even to appear before the com­
mittee.” 3
An often-quoted statement of this position is contained in an opinion by Assist­
ant Attorney General William Rehnquist:

The President and his immediate advisers — that is, those who
customarily meet with the President on a regular or frequent
basis — should be deemed absolutely immune from testimonial
compulsion by a congressional committee. They not only may not
be examined with respect to their official duties, but they may not
even be compelled to appear before a congressional committee.4

There is no question that the Counsel to the President falls within Assistant
Attorney General Rehnquist’s description of the type of Presidential advisers who
are immune from testimonial compulsion.

CHRISTOPHER H. SCHROEDER
Acting Assistant Attorney General
Office o f Legal Counsel

3 Memorandum for M argaret M cKenna, Deputy Counsel to the President, from John M. Harmon, Assistant Attorney
General, Office o f Legal Counsel, Re: Dual-purpose Presidential Advisers, Appendix at 7 (Aug. 11, 1977).
4 Memorandum for the Honorable John D. Ehrlichman, Assistant to the President for Domestic Affairs, from W il­
liam H. Rehnquist, Assistant A ttorney General, Office o f Legal Counsel, Re: Power o f Congressional Committee
to Compel Appearance or Testimony o f ‘ ‘White House Staff ’ at 7 (Feb. 5, 1971).

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