Published by The Lawfare Institute
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After Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that senior White House aides do not enjoy absolute immunity from congressional subpoenas for testimony, the reporting on the implications was a bit excitable. There was catchy language in the Jackson opinion that was sure to shape the first run of coverage: The court admonished the president in specific terms that he was not “a king” who somehow has “subjects, bound by loyalty or blood, whose destiny [he is] entitled to control.” And this produced headlines that suggested that former White House counsel Don McGahn would have to testify, or comply with the subpoena, perhaps leading many readers to expect that the House could extract from him the information that it wanted.
Not quite. The opinion was conservative in approach and, in its immediate consequences, limited. The court rejected the administration’s claim that McGahn could ignore a subpoena and not appear at all, but it affirmed that he could invoke privilege in declining to answer specific questions. In other words, he had to show up, not spill all the beans. As the court stated repeatedly, it was adopting the same position as the district court in Committee on the Judiciary, United States House of Representatives Committee on Judiciary v. Miers in turning away a similar claim of immunity asserted by the George W. Bush administration. (The Miers decision was authored by Bush-appointed Judge John Bates.)
If the decision, which is now under appeal, stands, there are useful questions to be asked about why the administration chose to risk this loss, how significant this defeat may be for the institutional presidency, and what it means for relations between the legislative and executive branches in future similar conflicts. It is never good for a president to fail in making a claim of constitutional authority, unless he or she has no choice. In the case of the House’s demand for McGahn’s testimony, there was, as discussed below, little at stake in the conflict, so forcing a judicial showdown over immunity was likely to result in defeat for the president with little or no compensating gain. Trump could have avoided the conflict and the loss. But it may turn out that, in compelling this and future administrations to negotiate the scope of senior aide testimony rather than refuse to provide it at all, Jackson’s decision will have strengthened the hand of White House counsels within the West Wing.
First, there is the question of why the president launched down this road to almost certain defeat. Administration lawyers could not have reasonably advised the president that he stood any chance of prevailing in court with a constitutional position this uncompromising: that the House had no authority to seek information from McGahn, that the president could just order him not to appear and that federal courts lacked jurisdiction to resolve the competing claims.
Nor could an administration with anything like prudent judgment in matters like this decide that it was in the long-term interests of the presidency to push absolute immunity for senior White House aides in the courts and lose decisively. It would have made more sense for an administration to preserve the facial credibility of a claim of broad, even absolute, immunity without putting it to a conclusive test. The claim would then remain available in the course of the normal give-and-take with the legislative branch, as the issues are negotiated. This is how other administrations have, or could have, used it to set up a negotiation with the disclaimer that it was not required to make an aide available at all, but that the adminiation was willing to make a deal in the interests of inter-branch “accommodation.”
But Trump apparently decided to plow ahead with the futile constitutional argument—making a priority of the short-term tactical value of litigating a doomed legal position. Perhaps lawyers concluded that, having lost before, it did not really count for much to lose again. By this calculation, the Jackson decision was yet another district judge’s opinion that could be dismissed in the future as not controlling in a future case of this kind. But it does matter to lose twice, both times decisively, and now the case law includes two closely reasoned decisions, one by a judge appointed by George W. Bush and the other by an Obama appointee.
Moreover, the Bates opinion in Miers left open the possibility for absolute immunity in “certain circumstances” for senior aide testimony on national security affairs and foreign policy, and the Trump administration attempted but failed to exploit it by appealing in vague terms to the White House counsel’s involvement in this policy sphere. Jackson dismissed the argument in a footnote, stressing again that the normal resolution of these issues would require an aide’s appearance in the course of which he or she could invoke privilege on national security or foreign policy grounds in response to specific issues.
This is another reason why administrations should take care not to invite the courts unless absolutely necessary to clarify the law governing these types of issues. By picking a poor case in which to test the national security exception, Trump has saddled the presidency with a narrow construction that it will have to contend with in other, future cases. And that case is on its way. The administration has chosen to stand its weak ground and appeal the Jackson decision, courting yet another loss but also one that would constitute controlling circuit precedent.
Notwithstanding all these considerations, it’s possible that Trump, fearful about McGahn’s testimony, had no choice but to stonewall and litigate as required to make it no longer possible to have a resolution before the impending House impeachment and a Senate trial. In this scenario, he traded off a sound institutional position to save himself from what McGahn might have had to say.
If this was his or his lawyers’ reasoning, it was poor. No one who observes the career of Don McGahn would imagine for a minute that he would become the star witness against the president in an impeachment proceeding. He is a committed—very committed—Republican with deep personal and professional ties to Republicans on the Hill. Republicans are not bailing on Trump; nothing in his career suggests that McGahn would be the one to break ranks. His law firm represents the president’s reelection campaign. He is also perfectly capable of testifying before Congress and not going beyond the information he already provided in interviews to the special counsel, which Mueller later included in his report. The law protects his right to invoke the privilege in response to specific questions. He is a skillful attorney who is unlikely to crumble under questioning and land a surprise blow on the president.
It is true that, if McGahn were to testify, Congress could challenge and initiate fresh legal action over specific claims of privilege. But this would take time that neither the House nor the Senate have in their impeachment schedules; the House has indicated they may send articles of impeachment to the Senate by January and the Senate plans for a trial of only weeks’ duration. Moreover, contests over privilege are ones the White House might have had more of a chance of winning than its quest for absolute immunity.
What, then, might be the significance of the Jackson ruling? More specifically, if the decision is affirmed, how will it affect how future White Houses deal with conflicts with Congress over subpoenas for senior White House aide testimony?
It is perhaps an ironic twist that the blow that Jackson dealt to the absolute immunity claim is a positive outcome for White House lawyers. The decision forces a White House like Trump’s to take seriously the need to reach accommodations with Congress. Such accommodations usually come in the form of negotiated resolutions with the House over demands for testimony, which are logically and normally the role of White House counsels to manage. The president and his political team have to rely on the lawyers to identify the strategy for a successful accommodation, which depends on an assessment of the strength of the various privilege claims that the administration cares most to sustain. The White House counsel has first-line responsibility for that assessment and then for the negotiation of an accommodation, although she or he may be aided in mapping out the various steps of the negotiation with the help of Department of Justice officials, including experts on privilege matters in the Office of Legal Counsel. This is true whether the witness Congress wishes to hear from is the White House counsel or another senior presidential assistant.
In fact, the overall effect—and apparently even the aim—of the Jackson decision is to bolster the practice of accommodation, by foreclosing the claim of absolute immunity. Courts have consistently favored the executive and legislative settlements that spare the courts the need for intervention. In a 1977 case, the U.S. Court of Appeals for the D.C. Circuit characterized accommodation as “an implicit constitutional mandate [that requires] a realistic evaluation of the needs of the conflicting branches in the particular fact situation.” This emphasis on the role of accommodation—“an implicit constitutional mandate”—appears with much the same emphasis in the opinion in Miers that Jackson embraced as “precedent that is on all fours with the instant matter” and “compelling” in its analysis. As Bates wrote in Miers:
Nor should this decision discourage the process of negotiation and accommodation that most often leads to resolution of disputes between the political branches. Although standing ready to fulfill the essential judicial role to “say what the law is” on specific assertions of executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role.
Jackson’s decision follows Bates in “strongly” encouraging accommodation. She makes a point of relating the House Judiciary Committee’s offer of a “number of options” for “any reasonable accommodation.” These included limitations on the testimony to matters covered in the Mueller report, specificity in the line of questioning and the presence of the White House counsel with whom McGahn could consult on privilege issues.
It is worth noting that the Trump administration made an attempt at a strained argument that the historical practice of accommodation counseled against judicial intervention. But its hand was weak. Jackson noted that the administration rejected or ignored various offers of accommodation, and that the Justice Department “has disavowed the possibility that the parties here will settle.” What was before the court was a raw assertion of absolute immunity, not a plea to allow credible, productive accommodation negotiations to go forward without further judicial interference. Jackson’s opinion makes clear that, to protect its core institutional equities, the White House was required to pursue accommodation as the means of preserving privilege and confidentiality interests.
If the natural effect of this stress on accommodation is to elevate the role of administration lawyers, it is still possible for an administration like Trump’s—which features a president with little respect for lawyers and not much more for legal rules and norms—to misplay the negotiation process. A president can still ignore the lawyers, insist on a bad accommodation strategy and wind up in court with more losses, this time of indefensible privilege claims. When it loses, the administration not only suffers a defeat on the specific questions litigated, but it also risks making unfavorable law on these issues more generally—for itself, and for administrations to come.
So, many if not most presidents would appreciate that the better outcome of a conflict with Congress over testimony from senior aides is a smart negotiation that would limit exposure to compelled testimony on sensitive issues. Moreover, a sound approach to accommodation enhances the chances that the administration might prevail in a court dispute. The administration is well served before a judge by showing a good-faith record of negotiation.
Read in this way, the Jackson decision advances the rule of law in two key respects. It lays to rest poorly founded and argued blanket claims of absolute immunity for presidential advisers, and it resoundingly promotes efforts of accommodation between the two branches that put the White House and Justice Department lawyers in leading roles and lend weight to their advice.