Immunity of the Director of the Office of Political Strategy and Outreach from Congressional Subpoena

Immunity of the Director of the Office of Political
Strategy and Outreach from Congressional Subpoena
The Assistant to the President and Director of the Office of Political Strategy and Out-
reach (“OPSO”) is immune from the House Committee on Oversight and Government
Reform’s subpoena to compel him to testify about matters concerning his service to
the President in the OPSO.

July 15, 2014

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

You have asked whether Assistant to the President and Director of the
Office of Political Strategy and Outreach (“OPSO”) David Simas is
legally required to appear to testify at a congressional hearing scheduled
for July 16, 2014, in response to a subpoena issued to Mr. Simas by the
House Committee on Oversight and Government Reform on July 10,
2014. We understand that the Committee seeks testimony about “whether
the White House is taking adequate steps to ensure that political activity
by Administration officials complies with relevant statutes, including the
Hatch Act,” and about “the role and function of the White House Office
of Political Strategy and Outreach.” Letter for David Simas from Darrell
Issa, Chairman, Committee on Oversight and Government Reform, House
of Representatives (July 3, 2014) (“Invitation Letter”). For the reasons set
forth below, we believe that Mr. Simas is immune from compulsion to
testify before the Committee on these matters, and therefore is not re-
quired to appear to testify in response to this subpoena.

I.

A.

The Executive Branch’s longstanding position, reaffirmed by numer-
ous administrations of both political parties, is that the President’s im-
mediate advisers are absolutely immune from congressional testimonial
process. See, e.g., 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 Appearance or Testimony of “White House Staff”

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 38 Op. O.L.C. 5 (2014)

at 7 (Feb. 5, 1971) (“Rehnquist Memorandum”). 1 This immunity is
rooted in the constitutional separation of powers, and in the immunity of
the President himself from congressional compulsion to testify. As this
Office has previously observed, “[t]he President is the head of one of the
independent Branches of the federal government. If a congressional
committee could force the President’s appearance” to testify before it,
“fundamental separation of powers principles—including the President’s
independence and autonomy from Congress—would be threatened.”
Immunity of the Former Counsel to the President from Compelled Con-
gressional Testimony, 31 Op. O.L.C. 191, 192 (2007) (“Bradbury Memo-
randum”). In the words of one President, “[t]he doctrine [of separation of
powers] would be shattered, and the President, contrary to our fundamen-
tal theory of constitutional government, would become a mere arm of the
Legislative Branch of the Government[,] if he would feel during his term
of office that his every act might be subject to official inquiry and possi-
ble distortion for political purpose.” Texts of Truman Letter and Velde
Reply, N.Y. Times, Nov. 13, 1953, at 14 (reprinting November 11, 1953
letter by President Truman). Thus, just as the President “may not compel
congressmen to appear before him,” “[a]s a matter of separation of pow-
ers, Congress may not compel him to appear before it.” Assertion of

1 See also Letter for Fred F. Fielding, Counsel to the President, from Steven G. Brad-

bury, Principal Deputy Assistant Attorney General, Office of Legal Counsel (Aug. 1,
2007); Immunity of the Former Counsel to the President from Compelled Congressional
Testimony, 31 Op. O.L.C. 191 (2007); Assertion of Executive Privilege with Respect to
Clemency Decision, 23 Op. O.L.C. 1 (1999); Immunity of the Counsel to the President
from Compelled Congressional Testimony, 20 Op. O.L.C. 308 (1996); Memorandum for
Edward C. Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel (July 29, 1982); Letter for Rudolph W.
Giuliani, Associate Attorney General, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Demand for Deposition of Counsel to the President
Fred F. Fielding (July 23, 1982); Memorandum for Fred F. Fielding, Counsel to the
President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel,
Re: Congressional Testimony by Presidential Assistants (Apr. 14, 1981); Memorandum
for Margaret McKenna, Deputy Counsel to the President, from John M. Harmon, Assis-
tant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers
(Aug. 11, 1977); Memorandum for John W. Dean III, Counsel to the President, from
Ralph E. Erickson, Assistant Attorney General, Office of Legal Counsel, Re: Appearance
of Presidential Assistant Peter M. Flanigan Before a Congressional Committee (Mar. 15,
1972).

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 Immunity of the Director of the Office of Political Strategy and Outreach

Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C.
1, 4 (1999) (“Assertion of Executive Privilege”) (quoting Memorandum
for Edward C. Schmults, Deputy Attorney General, from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel at 2 (July
29, 1982)).
For the President’s absolute immunity to be fully meaningful, 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 official duties. “Given the numerous
demands of his office, the President must rely upon senior advisers” to
do his job. Bradbury Memorandum, 31 Op. O.L.C. at 192. The Presi-
dent’s immediate advisers—those trusted members of the President’s
inner circle “who customarily meet with the President on a regular or
frequent basis,” Rehnquist Memorandum at 7, and upon whom the Presi-
dent relies directly for candid and sound advice—are in many ways an
extension of the President himself. They “function[] 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 constitu-
tional responsibilities,” including supervising the Executive Branch and
developing policy. Assertion of Executive Privilege, 23 Op. O.L.C. at 5;
see also Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982) (the Constitution
“establishes the President as the chief constitutional officer of the Execu-
tive Branch, entrusted with supervisory and policy responsibilities of
utmost discretion and sensitivity,” including “the enforcement of federal
law” and the “management of the Executive Branch”); In re Sealed Case,
121 F.3d 729, 750 (D.C. Cir. 1997) (“The President himself must make
decisions relying substantially, if not entirely, on the information and
analysis supplied by advisers.”). “Given the close working relationship
that the President must have with his immediate advisors as he discharg-
es his constitutionally assigned duties,” “[s]ubjecting [those advisers] to
the congressional subpoena power would be akin to requiring the Presi-
dent himself to appear before Congress on matters relating to the perfor-
mance of his constitutionally assigned executive functions.” Assertion of
Executive Privilege, 23 Op. O.L.C. at 5.

7
 38 Op. O.L.C. 5 (2014)

In particular, a congressional power to compel the testimony of the
President’s immediate advisers would interfere with the President’s dis-
charge of his constitutional functions and damage the separation of pow-
ers in at least two important respects. First, such a power would threaten
the President’s “independence and autonomy from Congress.” Bradbury
Memorandum, 31 Op. O.L.C. at 192; cf. Cheney v. U.S. Dist. Court for
the Dist. of Columbia, 542 U.S. 367, 370, 385 (2004) (citing the Presi-
dent’s need for autonomy and confidentiality in holding that courts must
consider constraints imposed by the separation of powers in fashioning
the timing and scope of discovery directed at high-level presidential
advisers who “give advice and make recommendations to the President”).
Absent immunity for a President’s closest advisers, congressional com-
mittees could wield their compulsory power to attempt to supervise the
President’s actions, or to harass those advisers in an effort to influence
their conduct, retaliate for actions the committee disliked, or embarrass
and weaken the President for partisan gain. Such efforts would risk signif-
icant congressional encroachment on, and interference with, the Presi-
dent’s prerogatives and his ability to discharge his duties with the advice
and assistance of his closest advisers. They also would promote a percep-
tion that the President is subordinate to Congress, contrary to the Consti-
tution’s separation of governmental powers into equal and coordinate
branches.
Second, a congressional power to subpoena the President’s closest ad-
visers to testify about matters that occur during the course of discharging
their official duties would threaten Executive Branch confidentiality,
which is necessary (among other things) to ensure that the President can
obtain the type of sound and candid advice that is essential to the effective
discharge of his constitutional duties. The Supreme Court has recognized
“the necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decisionmaking.” United
States v. Nixon, 418 U.S. 683, 708 (1974). “A President and those who
assist him,” the Court has explained, “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.” Id. The pro-
spect of compelled interrogation by a potentially hostile congressional
committee about confidential communications with the President or
among the President’s immediate staff could chill presidential advisers

8
 Immunity of the Director of the Office of Political Strategy and Outreach

from providing unpopular advice or from fully examining an issue with
the President or others.
To be sure, the President’s advisers could invoke executive privilege to
decline to answer specific questions if they were required to testify. See,
e.g., Rehnquist Memorandum at 8 & n.4. But the ability to assert execu-
tive privilege during live testimony in response to hostile questioning
would not remove the threat to the confidentiality of presidential commu-
nications. An immediate presidential adviser could be asked, under the
express or implied threat of contempt of Congress, a wide range of unan-
ticipated and hostile questions about highly sensitive deliberations and
communications. In the heat of the moment, without the opportunity for
careful reflection, the adviser might have difficulty confining 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. These concerns are heightened because, in a
hearing before a congressional committee, there is no judge or other
neutral magistrate to whom a witness can turn for protection against
questions seeking confidential and privileged information. The committee
not only poses the questions to the witness, but also rules on any objec-
tions to its own questions according to procedures it establishes. The
pressure of compelled live testimony about White House activities in a
public congressional hearing would thus create an inherent and substantial
risk of inadvertent or coerced disclosure of confidential information
relating to presidential decision-making—thereby ultimately threatening
the President’s ability to receive candid and carefully considered advice
from his immediate advisers. To guard against these harms to the Presi-
dent’s ability to discharge his constitutional functions and to the separa-
tion of powers, immediate presidential advisers must have absolute im-
munity from congressional compulsion to testify about matters that oc-
curred during the course of the adviser’s discharge of official duties. 2

2 A number of senior presidential advisers have voluntarily testified before Congress as
an accommodation to a congressional committee’s legitimate interest in investigating
certain activities of the Executive Branch. These instances of voluntary testimony do not
undermine the Executive Branch’s long-established position on absolute immunity.
Unlike compelled testimony, voluntary testimony by a senior presidential adviser repre-
sents an affirmative exercise of presidential autonomy. It reflects a decision by the

9
 38 Op. O.L.C. 5 (2014)

B.

This longstanding Executive Branch position is consistent with rele-
vant Supreme Court case law. The Court has not yet considered whether
Congress may secure the testimony of an immediate presidential advis-
er through compulsory process. But in an analogous context, the Court
did conclude that legislative aides are entitled to immunity under the
Speech or Debate Clause that is co-extensive with the immunity afford-
ed Members of Congress themselves. See Gravel v. United States, 408
U.S. 606 (1972). “It is literally impossible,” the Court explained, “for
Members of Congress to perform their legislative tasks without the help
of aides and assistants.” Id. at 616. Legislative aides must therefore “be
treated as . . . alter egos” of the Members they serve. As a result, they
must be granted the same immunity as those Members in order to pre-
serve “the central role of the Speech or Debate Clause,” which is “to
prevent intimidation of legislators by the Executive and accountability
before a possibly hostile judiciary.” Id. at 617.
The Court’s reasoning in Gravel supports the position that the Presi-
dent’s immediate advisers must share his absolute immunity from con-
gressional compulsion to testify. As noted above, the President’s immedi-
ate advisers are his “alter egos,” allowing him to fulfill the myriad re-
sponsibilities of his office in a way it would be “literally impossible” for
him to do alone. A congressional power to compel their testimony would
(as we have discussed) undermine the President’s independence, create
the appearance that the President is subordinate to Congress, and impair
the President’s ability to receive sound and candid advice, thereby hinder-
ing his ability to carry out the functions entrusted to him by the Constitu-
tion. Subjecting immediate presidential advisers to congressional testimo-
nial process would thus “diminish[] and frustrate[]” the purpose of the
President’s own absolute immunity from such process—just as in Gravel,

President and his immediate advisers that the benefit of providing such testimony as an
accommodation to a committee’s interests outweighs the potential for harassment and
harm to Executive Branch confidentiality. Such testimony, moreover, may be provided on
terms negotiated to focus and limit the scope of the questioning. Because voluntary
testimony represents an exercise of presidential autonomy rather than legally required
compliance with congressional will, it does not implicate the separation of powers in the
same manner, or to anything like the same extent, as compelled testimony.

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 Immunity of the Director of the Office of Political Strategy and Outreach

denying “Speech or Debate” immunity to legislative aides would have
“diminished and frustrated” the protections granted to Members of Con-
gress under that clause. Gravel, 408 U.S. at 617.
To be sure, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court
rejected a claim of absolute immunity made by senior presidential advis-
ers. But it did so in the context of a civil suit against those advisers for
money damages. In our view, Harlow’s holding that presidential advisers
are generally entitled to only qualified immunity in suits for money dam-
ages should not be extended to the context of congressional subpoenas for
the testimony of immediate presidential advisers, because the separation
of powers concerns that underlie the need for absolute immunity from
congressional testimonial compulsion are not present to the same degree
in civil lawsuits brought by third parties. But see Comm. on Judiciary,
U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 100–02
(D.D.C. 2008) (reading Harlow to preclude absolute immunity for senior
presidential advisers from compulsion to testify before Congress).
As explained above, subjecting an immediate presidential adviser to
Congress’s subpoena power would threaten the President’s autonomy and
his ability to receive sound and candid advice. Both of these prospective
harms would raise acute concerns related to the separation of powers. A
suit for damages brought by a private party does not raise comparable
separation of powers concerns. It is true that such a suit involves a judi-
cially supervised inquiry into the actions of presidential advisers, and
that the threat of financial liability from such a suit may chill the conduct
of those advisers. See Harlow, 457 U.S. at 814; Miers, 558 F. Supp. 2d at
101–02. But, in civil damages actions, the Judiciary acts as a disinterest-
ed arbiter of a private dispute, not as a party in interest to the very law-
suit it adjudicates. Indeed, the court is charged with impartially adminis-
tering procedural rules designed to protect witnesses from irrelevant,
argumentative, harassing, cumulative, and other problematic questions.
Cf., e.g., Fed. R. Civ. P. 26(b); Fed. R. Evid. 103. And mechanisms exist
to eliminate unmeritorious claims. See, e.g., Fed. R. Civ. P. 12(b), (c),
(e), (f ); Fed. R. Civ. P. 56. In contrast, in the congressional context (as
noted earlier), the subpoenaing committee is both the interested party and
the presiding authority, asking questions that further its own interests,
and setting the rules for the proceeding and judging whether a witness
has failed to comply with those rules. In part for these reasons, a con-

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 38 Op. O.L.C. 5 (2014)

gressional proceeding threatens to subject presidential advisers to coer-
cion and harassment, create a heightened impression of presidential
subordination to Congress, and cause public disclosure of confidential
presidential communications in a way that the careful development of
evidence through the judicially monitored application of the Federal
Rules of Civil Procedure does not.
Harlow also contains a discussion of Gravel, in which the Court re-
jected the defendants’ argument that, as “alter egos” of the President,
they should be entitled to absolute immunity from civil claims for dam-
ages, derivative of the absolute immunity afforded the President. But we
do not think Harlow’s discussion undermines the relevance of Gravel to
the issue of immunity from congressional compulsion to testify. In Har-
low, the Court conceded that the defendants’ claim of absolute immunity
based on Gravel was “not without force,” but concluded that the argu-
ment would “sweep[] too far,” because it would imply that Cabinet
officials too should enjoy derivative absolute immunity, and the Court
had already decided (in Butz v. Economou, 438 U.S. 478 (1978)) that
Cabinet officials—“Presidential subordinates some of whose essential
roles are acknowledged by the Constitution itself ”— are entitled to only
qualified immunity. Harlow, 457 U.S. at 810.
Given the dissimilarities between civil suits for damages and com-
pelled congressional testimony just discussed, it is doubtful that this
discussion in Harlow (or the holding in Butz) bears much on the question
of whether immediate presidential advisers have absolute immunity from
congressional compulsion to testify. Further, even if it is appropriate to
harmonize the immunity afforded Cabinet officials and presidential
advisers in the context of suits for damages, the same is not true in the
context of compelled congressional testimony. This is because the pro-
spect of compelled congressional testimony by a President’s immediate
advisers would, as a general matter, be significantly more damaging to
the separation of powers than the prospect of compelled testimony by a
Cabinet official. As a department head, a Cabinet officer is confirmed by
the Senate, and her authority and functions are generally established by
statute. It may be a significant part of her regular duties to testify before
Congress about the implementation of laws that Congress has passed. Cf.
Rehnquist Memorandum at 8–9. By contrast, an immediate presidential
adviser is appointed solely by the President, without Senate confirmation,

12
 Immunity of the Director of the Office of Political Strategy and Outreach

and his role is to advise and assist the President in the performance of the
President’s constitutionally assigned functions. The separation of powers
concerns identified above—the threats to both the independence of the
presidency and the President’s ability to obtain candid and sound ad-
vice—are significantly more acute in the case of close personal advisers
than high-ranking Executive Branch officials who do not function as the
President’s “alter egos.” Cf. Harlow, 457 U.S. at 828 (Burger, C.J.,
dissenting) (faulting the Court majority for “fail[ing] to distinguish the
role of a President or his ‘elbow aides’ from the role of Cabinet officers,
who are department heads rather than ‘alter egos,’” and stating that “[i]t
would be in no sense inconsistent to hold that a President’s personal
aides have greater immunity than Cabinet officers”); id. at 810 n.14
(majority opinion) (acknowledging Chief Justice Burger’s argument and
noting that “it is impossible to generalize about the role of ‘offices’ in an
individual President’s administration” because some individuals have
served simultaneously in both presidential advisory and Cabinet posi-
tions). 3
Similarly, in United States v. Nixon, the Supreme Court expressly dis-
tinguished the privilege issues arising in criminal cases from the privilege
issues that would arise in the context of compelled congressional testimo-
ny. In Nixon, the Court held that the President could assert only a quali-
fied, rather than an absolute, privilege to resist a subpoena for tape record-
ings and documents issued in the course of a criminal proceeding brought
against certain third parties. 418 U.S. 683; see also Sealed Case, 121 F.3d
at 753–57 (presidential communications privilege may be overcome by
need for information in a grand jury investigation). But the Court made

3 The Harlow Court also observed that civil suits for money damages against pres-

idential advisers “generally do not invoke separation-of-powers considerations to the
same extent as suits against the President himself.” 457 U.S. at 811 n.17. This observation
is consistent with Nixon v. Fitzgerald, a case decided the same day as Harlow, in which
the Court held that the President “is entitled to absolute immunity from damages liability
predicated on his official acts.” 457 U.S. 731, 749 (1982). This logic too suggests that the
President’s immediate advisers should be absolutely immune from congressional compul-
sion to testify, because (as we have explained) compelling immediate presidential advis-
ers to testify before Congress would risk serious harm to the separation of powers that is
closely related to the harm that would be caused by compelling the President himself to
appear, and because absolute immunity for the President’s immediate advisers is neces-
sary to render the President’s own immunity fully meaningful.

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 38 Op. O.L.C. 5 (2014)

clear that it was “not . . . concerned with the balance between the Presi-
dent’s . . . confidentiality interest and congressional demands for infor-
mation.” Nixon, 418 U.S. at 712 n.19; see also id. (“We address only the
conflict between the President’s assertion of a generalized privilege of
confidentiality and the constitutional need for relevant evidence in crimi-
nal trials.”); Sealed Case, 121 F.3d at 753 (recognizing that the unique
“constitutional considerations” in the “congressional-executive context”
render limitations on executive privilege in the judicial context inappo-
site). Particularly in light of this explicit statement, we do not believe
Nixon casts doubt on the President’s—and by extension his immediate
advisers’—immunity from congressional compulsion to testify. As with
liability for private suits for damages, requiring the President to comply
with a third-party subpoena in a criminal case is very different from—and
has very different separation of powers implications than—requiring him
to comply with a congressional subpoena for testimony. This is so in at
least two respects.
First, as the Court explained in Cheney, “the need for information in the
criminal context is” particularly weighty “because ‘our historic[al] com-
mitment to the rule of law . . . is nowhere more profoundly manifest than
in our view that the twofold aim of [criminal justice] is that guilt not
escape or innocence suffer.’” 542 U.S. at 384 (alterations in original)
(internal quotation marks omitted) (quoting United States v. Nixon, 418
U.S. at 708–09). Outside the criminal context, “the need for information
. . . does not share the [same] urgency or significance.” Id. Comparing the
informational need of congressional committees with that of grand juries,
for instance, the en banc Court of Appeals for the D.C. Circuit explained
that
while factfinding by a legislative committee is undeniably a part of
its task, legislative judgments normally depend more on the predict-
ed consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events. . . . In
contrast, the responsibility of the grand jury turns entirely on its abil-
ity to determine whether there is probable cause to believe that cer-
tain named individuals did or did not commit specific crimes.
Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498
F.2d 725, 732 (D.C. Cir. 1974) (en banc).

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 Immunity of the Director of the Office of Political Strategy and Outreach

Second, the potentially harmful effect on the President’s ability to carry
out his duties and on the separation of powers is more serious in the
context of subpoenaed congressional testimony than in the context of
compulsory judicial process in a criminal case. As in the civil context, the
criminal justice system imposes “various constraints, albeit imperfect, to
filter out insubstantial legal claims” and minimize the damage to the
President’s ability to discharge his duties, such as prosecutorial discretion
(with its attendant ethical constraints) and Federal Rule of Criminal
Procedure 17. Cheney, 542 U.S. at 386. Congress is not subject to such
constraints. And, of course, a criminal subpoena does not raise the pro-
spect of the President (or one of his immediate advisers) being summoned
at Congress’s will to appear before it to respond at a hearing conducted
entirely on the terms and in the manner Congress chooses.
Two lower-court cases also bear mention. In Senate Select Committee,
the Court of Appeals for the D.C. Circuit addressed a President’s obliga-
tion to comply with a congressional subpoena, and concluded that the
President could not assert a generalized claim of executive privilege to
absolutely immunize himself from turning over certain tape recordings of
presidential conversations. 498 F.2d 725. Again, we do not believe this
holding undermines our conclusion that the President and his immediate
advisers are absolutely immune from congressional compulsion to testify.
In our view, Congress summoning a President to appear before it would
suggest, far more than Congress compelling a President to turn over
evidence, an Executive subordinate to the Legislature. In addition, when
Congress issues a subpoena for documents, the Executive Branch may
take time to review the request and object to any demands that encroach
on privileged areas. Any documents that are produced may be redacted
where necessary. By contrast (and as already discussed), a witness testify-
ing before Congress may, in the heat of the moment and under pressure,
inadvertently reveal information that should remain confidential.
Finally, in Committee on Judiciary v. Miers, the District Court for the
District of Columbia considered a question very similar to the one raised
here, and concluded that a former Counsel to the President was not enti-
tled to absolute immunity from congressional compulsion to testify. 558
F. Supp. 2d at 99. The court’s analysis relied heavily on Harlow, Har-
low’s discussion of Gravel, and Nixon. 558 F. Supp. 2d at 99–105. For the
reasons set forth above, we believe those cases do not undermine the

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 38 Op. O.L.C. 5 (2014)

Executive Branch’s longstanding position that the President’s immediate
advisers are immune from congressional compulsion to testify. We there-
fore respectfully disagree with the Miers court’s analysis and conclusion,
and adhere to the Executive Branch’s longstanding view that the Pres-
ident’s immediate advisers have absolute immunity from congressional
compulsion to testify.

C.

Applying this longstanding view, we believe that Mr. Simas has such
immunity. We understand that Mr. Simas spends the majority of his time
advising or preparing advice for the President. He is a member of a group
of the President’s closest advisers who regularly meet with the President,
as often as several times a week. In addition, Mr. Simas frequently meets
with the President alone and with other advisers, at the President’s or Mr.
Simas’s request. See Rehnquist Memorandum at 7 (President’s “immedi-
ate advisers” are “those who customarily meet with the President on a
regular or frequent basis”). Mr. Simas is responsible for advising the
President on such matters as what policy issues warrant his attention. He
also advises the President on how his policies are being received, and on
how to shape policy to align it with the needs and desires of the American
public. Mr. Simas thus plays a crucial role in deciding how best to formu-
late and communicate the President’s agenda across a wide range of
policy issues. In these respects, Mr. Simas’s duties are comparable to
those of other immediate advisers who we have previously recognized are
entitled to absolute immunity from congressional compulsion to testify.
See, e.g., Letter for Fred F. Fielding, Counsel to the President, from
Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel (Aug. 1, 2007) (immunity of Karl Rove, adviser to
President Bush); Bradbury Memorandum (immunity of Harriet Miers,
Counsel to President Bush). Consistent with these precedents, we likewise
conclude that Mr. Simas has absolute immunity from compulsion to
testify before Congress about his service to the President in the Office of
Political Strategy and Outreach.

II.

For the reasons discussed above, we believe that Mr. Simas is entitled
to immunity that is “absolute and may not be overborne by [the Commit-

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 Immunity of the Director of the Office of Political Strategy and Outreach

tee’s] competing interests.” Assertion of Executive Privilege, 23 Op.
O.L.C. at 4. But even if Mr. Simas were only entitled to qualified immuni-
ty, which could be overcome by a sufficient showing of compelling need,
we would conclude that the Committee had not made the requisite show-
ing.

A.

No court has yet considered the standard that would be used to deter-
mine whether a congressional committee’s interests overrode an immedi-
ate presidential adviser’s immunity from congressional compulsion to
testify, assuming that immunity were qualified rather than absolute. But
two decisions of the Court of Appeals for the D.C. Circuit suggest possi-
ble standards. In Senate Select Committee, in the context of a presidential
assertion of executive privilege against a congressional subpoena for tape
recordings of conversations between the President and his Counsel, the
court held that the Committee could overcome the assertion only by
showing that “the subpoenaed evidence is demonstrably critical to the
responsible fulfillment of [its] functions.” 498 F.2d at 731; see also
McGrain v. Daugherty, 273 U.S. 135, 176 (1927) (congressional over-
sight power may be used only to “obtain information in aid of the legisla-
tive function”). And in Sealed Case, the court held that “in order to over-
come a claim of presidential privilege raised against a grand jury subpoe-
na, it is necessary to specifically demonstrate why it is likely that the
evidence contained in presidential communications is important to the
ongoing grand jury investigation and why this evidence is not available
from another source.” 121 F.3d at 757. (To be “important” to an investi-
gation, “the evidence sought must be directly relevant to issues that are
expected to be central to the trial.” Id. at 754.)
In our view, Senate Select Committee would provide the more appro-
priate standard for assessing whether a congressional committee’s asser-
tion of need had overcome an immediate presidential adviser’s qualified
testimonial immunity. As explained above, judicial proceedings—includ-
ing criminal proceedings—differ in fundamental ways from congressional
hearings. Because the Senate Select Committee standard was articulated in
the congressional oversight context, and because it seeks to preserve the
President’s prerogatives while recognizing Congress’s legitimate interest
in information crucial to its legislative function, we believe it would be an

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 38 Op. O.L.C. 5 (2014)

appropriate standard for evaluating whether an immediate presidential
adviser’s qualified testimonial immunity has been overcome.
In applying this standard, it would be important to bear in mind the
“implicit constitutional mandate” that the coordinate branches of gov-
ernment “seek optimal accommodation through a realistic evaluation of
the needs of the conflicting branches in the particular fact situation.”
United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977).
Through this accommodation process, which has been followed for dec-
ades, the political branches strive to avoid the “constitutional confronta-
tion” that erupts when the President must make an assertion of privilege,
or when an immediate presidential adviser’s testimonial immunity must
be invoked. See Cheney, 542 U.S. at 389–90 (quoting United States v.
Nixon, 418 U.S. at 692); see also id. (“[C]onstitutional confrontation
between the two branches should be avoided whenever possible.” (inter-
nal quotation marks omitted)). Accordingly, before an immediate presi-
dential adviser’s compelled testimony could be deemed demonstrably
critical to the responsible fulfillment of a congressional committee’s
legislative function, a congressional committee would, at a minimum,
need to demonstrate why information available to it from other sources
was inadequate to meet its legitimate needs. See Senate Select Committee,
498 F.2d at 732–33 (noting that, in light of the President’s public release
of partially redacted transcripts of the subpoenaed tapes, the court had
asked the Select Committee to state “in what specific respects the [public-
ly available] transcripts . . . are deficient in meeting [its] need,” and then
finding that the Committee “points to no specific legislative decisions that
cannot responsibly be made without access to materials uniquely con-
tained in the tapes”).

B.

The Committee has not shown that Mr. Simas’s testimony is demon-
strably critical to the responsible fulfillment of its legislative function.
The Committee’s investigation began with a broad request for “all doc-
uments and communications, including e-mails, related or referring to the
Office of Political Strategy and Outreach or the reopening of the Office
of Political Affairs,” along with a request that White House officials brief
Committee staff. Letter for Denis McDonough, White House Chief of
Staff, from Darrell E. Issa, Chairman, Committee on Oversight and

18
 Immunity of the Director of the Office of Political Strategy and Outreach

Government Reform, House of Representatives at 4 (Mar. 18, 2014).
Over the course of letters exchanged during the next three months, the
White House explained that the Office engages only in activities that are
permissible under the Hatch Act, and that the White House has taken
steps to ensure that OPSO staff are trained in Hatch Act compliance. In
response to those letters, the Committee reiterated its broad request for
documents, but did not articulate particular unanswered questions or
identify incidents in which OPSO staff may have violated the Hatch Act
or related statutes. See Letter for Darrell E. Issa, Chairman, Committee
on Oversight and Government Reform, House of Representatives, from
Kathryn H. Ruemmler, Counsel to the President (Mar. 26, 2014); Letter
for Denis McDonough, White House Chief of Staff, from Darrell E. Issa,
Chairman, Committee on Oversight and Government Reform, House of
Representatives at 1 & n.5 (May 27, 2014); Letter for Darrell E. Issa,
Chairman, Committee on Oversight and Government Reform, House of
Representatives, from W. Neil Eggleston, Counsel to the President at 1–2
(June 13, 2014).
On July 3, 2014, the Committee requested Mr. Simas’s testimony at a
public hearing to understand “whether the White House is taking ade-
quate steps to ensure that political activity by Administration officials
complies with relevant statutes, including the Hatch Act,” and to under-
stand “the role and function of the White House Office of Political
Strategy and Outreach.” Invitation Letter. The Committee did not, how-
ever, identify any specific unanswered questions that Mr. Simas’s testi-
mony was necessary to answer. The White House responded with a letter
providing additional information about White House efforts to ensure
that OPSO was operating in a manner consistent with applicable stat-
utes, and explaining that the activities cited by the Committee did not
violate those statutes. See Letter for Darrell E. Issa, Chairman, Commit-
tee on Oversight and Government Reform, House of Representatives,
from W. Neil Eggleston, Counsel to the President (July 10, 2014). At
that time, the White House also provided various documents reflecting
its efforts to ensure that OPSO staff comply with relevant laws, includ-
ing materials on the Hatch Act used in a mandatory training for all staff
assigned to OPSO, e-mail correspondence demonstrating that OPSO
staff were directed to read critical reports issued by the Office of Special
Counsel and the Committee regarding the activities of the previous

19
 38 Op. O.L.C. 5 (2014)

Administration’s Office of Political Affairs, documentation of a meeting
between lawyers from the White House Counsel’s Office and the Office
of Special Counsel concerning compliance with the Hatch Act, and a
memorandum sent to all White House staff from the President’s Counsel
reminding them of the law governing political activity by federal em-
ployees. See id. at 3. Finally, the White House Counsel’s Office offered
to brief the Committee to address any outstanding questions regarding
OPSO’s activities. See id.
After receiving these responses, the Committee, on Friday, July 11,
2014, subpoenaed Mr. Simas to testify at a public hearing on Wednesday,
July 16. At the same time, the Committee indicated that it would accept
the White House Counsel’s Office’s offer to brief the Committee, and
would determine after the briefing whether to withdraw the subpoena for
Mr. Simas’s testimony. See Letter for W. Neil Eggleston, Counsel to the
President, from Darrell E. Issa, Chairman, Committee on Oversight and
Government Reform, House of Representatives (July 11, 2014). The
White House provided that briefing on Tuesday, July 15, the day before
the hearing was to occur. Following the briefing, the Committee indicated
that Mr. Simas’s testimony remained necessary. It explained that, during
the briefing, White House staff “declined to discuss compliance with the
Committee’s document requests or even describe the process and identify
relevant officials involved in the decision to reopen the White House
political office.” Letter for W. Neil Eggleston, Counsel to the President,
from Darrell E. Issa, Chairman, Committee on Oversight and Government
Reform, House of Representatives at 1 (July 15, 2014).
The Committee has not adequately explained why, despite the infor-
mation it has already received concerning OPSO’s activities and the
White House’s efforts to ensure compliance with relevant statutes, it
requires Mr. Simas’s public testimony in order to satisfy the legitimate
aims of its oversight investigation. Although the Committee has now
indicated that it needs additional information on two specific topics, it has
not explained why it must obtain that information from Mr. Simas at a
Committee hearing. And to the extent that the Committee has other “out-
standing questions for Mr. Simas,” id. at 2, the Committee has not identi-
fied them, let alone explained why he must answer them at a public hear-
ing. At this point, it is not evident that further efforts at accommodation
would be futile, and hence that compelling an immediate presidential

20
 Immunity of the Director of the Office of Political Strategy and Outreach

adviser to testify before Congress is a justifiable next step. Because the
Committee has not explained why (and it is not otherwise clear that) Mr.
Simas’s live testimony is “demonstrably critical” to the responsible ful-
fillment of the Committee’s functions, we conclude that the Committee
has not met the standard that would apply for overcoming Mr. Simas’s
immunity from congressional compulsion to testify, assuming that im-
munity were qualified rather than absolute. 4

III.

For the foregoing reasons, we conclude that Mr. Simas is immune from
the House Committee on Oversight and Government Reform’s subpoena
to compel him to testify about matters concerning his service to the Presi-
dent in the Office of Political Strategy and Outreach.

KARL R. THOMPSON
Acting Assistant Attorney General
Office of Legal Counsel

4 Even if it were appropriate to apply the Sealed Case standard for overcoming quali-
fied executive privilege in the context of congressional testimonial immunity, Mr. Simas’s
testimonial immunity would not have been overcome here. For the reasons set forth in the
text, we do not believe that the Committee could show that the testimony it demands from
Mr. Simas is directly relevant to issues that are central to the Committee’s investigation
and that the information that would be obtained through that testimony is not available
from another source.

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