Testimonial Immunity, Executive Privilege and the President’s Authority Over Former Officials

Jonathan Shaub
Wednesday, May 22, 2019, 6:34 PM

It is unclear what authority the president has to direct former White House counsel Don McGahn, now a private citizen, to go along with the executive branch’s legal position in refusing to comply with a congressional subpoena.

Don McGahn speaking at the 2018 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Source: Flickr/Gage Skidmore)

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On May 20, as expected, the White House formally instructed former White House Counsel Don McGahn to refuse to comply with the House judiciary committee subpoena requiring his appearance and testimony. The legal rationale for his noncompliance, which I explained on Lawfare a few weeks ago, is the executive branch doctrine that close presidential advisers are immune from compelled congressional testimony. But, as explored in depth below, the opinion does not address—nor is it clear from other executive branch precedent—what authority the president has to direct McGahn, now a private citizen, to comply with the executive branch’s legal position. The issue is not going away either. After McGahn did not show up at the hearing, Rep. Jerry Nadler, the committee chairman, issued new subpoenas requiring two other former officials—former communications director Hope Hicks and former Deputy Counsel Anne Donaldson—to testify.

McGahn’s Immunity

In support of McGahn’s immunity, the Office of Legal Counsel (OLC) released an opinion setting out the executive branch’s position. The opinion largely restates the reasoning provided in a 2014 OLC opinion, which concluded that President Obama’s senior adviser, David Simas, did not have to comply with a congressional subpoena for testimony. As Walter Dellinger, the former head of OLC and acting solicitor general during the Clinton administration, noted, there is “significant exec[utive] branch support” for the McGahn immunity opinion. And Bob Bauer, former White House Counsel to President Obama, wrote that the opinion was “not surprising” and that it “reflects the position that the executive branch has taken over time.” Indeed, the opinion goes to some length to explain that its conclusion is “consistent with nearly 50 years of executive branch precedent” and “has been consistently reaffirmed by administrations of both parties, most recently during the Obama Administration.”

At the same time, as Nadler noted in response to the White House’s letter, the only court to address the executive branch doctrine of immunity resoundingly rejected it, reasoning that “if the Executive’s absolute immunity argument were to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege.” The McGahn opinion does acknowledge the adverse court decision, but, like the 2014 opinion, “respectfully disagree[s]” with the district court. OLC likewise notes that the decision was stayed by the appellate court (a potential sign the appellate court disagreed with the ruling) and that no appellate court has ever had a chance to address the issue.

The merits of the immunity doctrine are thus largely unsettled and reflect a long-standing disagreement between the executive branch and Congress. Given the existing judicial opinion, a comprehensive analysis written by a well-respected judge, the administration likely faces long odds of prevailing in court—particularly on its claim that the immunity is absolute and cannot be undermined or outweighed by countervailing congressional interests or by evidence of wrongdoing. But judicial resolution may take some time, a refrain that should be familiar to anyone paying attention to the various oversight disputes.

The McGahn opinion also concludes that McGahn’s status as a former counsel does not alter the immunity analysis, finding “no material distinction between the compelled congressional testimony of current and former senior advisers to the President.” For that conclusion, there is significantly less historical support. The only formal published precedent is a relatively short three-page 2007 OLC opinion concluding that Harriet Miers, former counsel to President George W. Bush, was immune from compelled testimony about the firing of U.S. attorneys. In his ruling rejecting the opinion’s analysis, the district court judge called the opinion “conclusory and recursive” and “hastily issued,” contrasting it with OLC opinions relating to executive privilege issued during the Reagan administration, which the judge characterized as “exhaustive efforts of sophisticated legal reasoning, bolstered by extensive citation to judicial authority.”

For historical support, the 2007 Miers opinion and the McGahn opinion rely almost solely on President Truman’s refusal to testify before Congress after he left office. They quote Truman’s statement that “if 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 office has expired when he is sought to be examined with respect to any acts occurring while he is President.” The immunity of a former official is thus on shakier footing, even accepting executive branch precedent. Indeed, as the district court noted in its decision rejecting Miers’s claim of immunity, one of the initial arguments made in favor of immunity was that close presidential advisers are “presumptively available to the President 24 hours a day” and responding to congressional demands could “impair that availability.” That argument is no longer applicable with respect to former advisers.

The battle lines over the question of immunity are thus somewhat clear and long-standing. And the issue may very well be resolved by an appellate court for the first time: Nadler made it clear at the hearing on Tuesday that the committee would “hear Mr. McGahn’s testimony even if [it] ha[d] to go to court to secure it.” Judicial resolution could take time, but a suit seeking to enforce this particular subpoena for testimony could feasibly be resolved rather quickly. The McGahn case poses a difficult but pure question of constitutional law, and there are neither privilege claims to adjudicate nor documents to review. In the 2008 Miers litigation, for example, the congressional committee initiated judicial action on March 10, 2008, and the district court issued its opinion a few months later, on July 31, 2008. The U.S. Court of Appeals for the D.C. Circuit stayed the lower court opinion and refused to expedite an appeal, but it may not take the same approach this time. Likewise, in ongoing litigation over congressional subpoenas sent to President Trump’s accounting firm and bank, the district court resolved a similarly narrow but complex question of constitutional oversight authority very quickly.

Nadler has, however, also suggested that the House may “bundle” a number of diverse contempt votes together and only then initiate judicial action based on all of the administration’s noncompliance. This would undoubtedly make the case much more complicated and, as a result, likely slow down judicial resolution of the immunity issue unless it were severed from the other issues.

With respect to the new subpoenas to Hope Hicks and Anne Donaldson, it remains to be seen whether the administration will again claim immunity. As Bauer notes, the White House counsel is an ideal candidate for immunity given the existing precedent holding past counsels immune and the closeness of the counsel to the president—not to mention the additional concerns that arise when testimony implicates an attorney-client relationship, which Bauer explores as well. Justifying immunity for Donaldson or Hicks based on existing precedent would be more difficult. Donaldson was a deputy counsel, and immunity has never been claimed for a White House official who reports to a more senior White House official. The doctrine has been limited to senior advisers, which the 2014 opinion defined as those who “spend[] the majority of [their] time advising or preparing advice for the President.” It would be a significant question whether a deputy counsel prepares advice for the president directly or assists her more senior boss—the White House counsel—in performing that function.

The immunity doctrine has also never been applied to a communications director, a job that would appear from the outside to be more outward facing than focused on advising the president on policy decisions, the role at the core of the immunity doctrine. The 2014 opinion emphasizes that Simas, the immune senior official, would “regularly meet with the President” and “advis[e] the President” in formulating policy. The application of immunity to Hicks may thus depend on the facts of her interactions with the president and her role in the White House. Notably, Hicks, like past officials who were found immune, did have the title of “assistant to the president,” the highest office for an presidential adviser in terms of salary scale. But Donaldson held the title only of “deputy assistant to the president.” I am somewhat, but not absolutely, certain that every past official for which the executive branch claimed immunity was paid at the highest salary level as an assistant to the president.

The President’s Authority to Direct Former Officials

The question of whether McGahn, Donaldson or Hicks is immune from compelled testimony is not the only relevant question, however. Even if McGahn is immune, immunity does not act as an absolute bar to voluntary testimony. The Congressional Research Service has collected a number of examples of White House advisers testifying, and both the McGahn opinion and past OLC precedent acknowledge that a close presidential adviser may testify with the president’s permission. Immunity is thus a choice; like executive privilege, it may be asserted or waived in each particular instance. In the executive branch’s view, the president is the one to make that choice with respect to both executive privilege and immunity. As I described on Lawfare in the context of compelled depositions, individual executive branch officials are not authorized to decide what information potentially protected by executive privilege should be disclosed and what information withheld. As a result, they engage in “non-assertion assertions” of executive privilege, claiming they cannot answer because the president has not yet decided whether to assert privilege.

But even if the president does make the choice about what to disclose or who may testify, what authority allows him to direct a private citizen to abide by that choice? The McGahn opinion does not address or explain the legal basis pursuant to which the president can direct McGhan to refuse to comply with a congressional subpoena. A number of legal scholars and commentators immediately seized upon this silence, and some, such as Marty Lederman, pointed to the same issue during the controversy over Miers’s immunity. Lederman argued in 2007 that “the President does not have any legal power to ‘direct’ …private citizens to violate the statutory obligation [to comply with congressional demands] whatever his view of the constitutional question might be.” Others have similarly expressed skepticism that McGahn could be bound by such a direction. And still others have also pointed to an ethics opinion by the D.C. Bar holding that an attorney is not bound by attorney-client privilege to maintain client confidences once Congress has threatened contempt for noncompliance. Instead, the attorney “may deem himself or herself ‘required by law’ to comply with the subpoena.”

McGahn’s attorney informed the committee that his client “remain[ed] obligated to maintain the status quo and w[ould] respect the President’s instruction,” but the letter did not describe the basis for that obligation, whether legal, ethical or practical. Miers’s attorney went further in his letter, claiming that Miers was “subject to conflicting commands” and had “no choice other than to comply with direction given her by Counsel to the President” (emphasis added). The Miers letter similarly did not explain what authority the president had to eliminate her choice of whether to respond to a duly issued congressional subpoena. And in 2007], Neil Eggleston, later White House counsel to President Obama, made the same claim with respect to his client, Sara Taylor, and the president’s claim of executive privilege. He wrote that Taylor would testify “without hesitation” but “face[d] two untenable choices”: either refuse to comply with the congressional subpoena and face contempt; or testify and risk alienating the president, “a person whom she admires and for whom she has worked tirelessly for years.” The ethics opinion, by contrast, concludes only that an attorney may violate the duty of confidentiality when faced with a congressional demand; it leaves the choice up to the attorney.

The OLC opinion states that “[b]ecause Congress may not constitutionally compel Mr. McGahn to testify about his official duties, the President may lawfully direct him not to appear” in response to the subpoena. The reasoning appears to be a complete non sequitur and omits a crucial inquiry. The fact that Congress lacks authority does not mean the president has an affirmative authority to direct a former official. It seems just as plausible to reach the lesser conclusion that because Congress lacks the authority to compel his testimony, McGahn may refuse to comply with the subpoena if he understands himself to be immune under his and his attorney’s interpretation of the Constitution and existing law. He could do so, of course, at the president’s request. The opinion relies on the president’s direction, however, and it does not explain what in the nature of McGahn’s immunity allows the president to “lawfully” issue the directive.

If the president has some authority to direct McGahn not to comply, there must be a source for that affirmative authority. In reality, the executive branch may not have a constitutional theory to justify the direction—but framing immunity decisions as “directions” to former officials is necessary as a practical matter, in the executive branch’s view, to immunize the former official from contempt, both criminal and inherent. As the McGahn opinion says: “Should the President provide that direction, McGahn may not constitutionally be penalized, civilly or criminally, for following it.” Without the direction, there is no certainty of McGahn’s immunity; he has no “conflicting demand” from a co-equal branch on which to base his noncompliance. And an individual who potentially faces contempt would be much less likely to refuse to comply with the subpoena. Thus, the executive branch needs to frame it as a direction to give the former official comfort that his noncompliance will not be punished, the same rationale underlying the need to make “protective” claims of executive privilege to immunize officials for noncompliance.

It’s also possible that this conclusion—that the president may lawfully direct a former official in the context of immunity—in fact represents an unexamined assumption that has little if any theoretical or precedential support even within the executive branch and instead results from the conflation of immunity and executive privilege for purposes of the president’s authority. The executive branch view is that executive privilege is not merely an evidentiary privilege but also an affirmative constitutional authority to control the dissemination of certain protected information. It is here that the origins of the immunity doctrine as a species or component of executive privilege become apparent. The McGahn opinion insists forcefully that immunity is distinct from executive privilege, thus rejecting any claims of waiver (which would apply only in the context of privilege). And it is true, as the opinion sets out, that the two doctrines are distinct as a substantive matter: Executive privilege applies if the president objects to congressional demands for specific information, whether in documents or in testimony, but immunity attaches to particular individuals, not information, and is grounded in the separation of powers, not privilege. Both doctrines, however, ultimately rely for their exercise on the president’s authority to issue directives to officials who are the subject of congressional subpoenas. Because of this, past OLC opinions have referred to immunity as an “assertion” of executive privilege, despite the long-standing view that they are separate. 

When current advisers or other executive branch officials subject to presidential control are the subject of congressional demands, the president’s authority to issue such directives is not really in question. His authority to direct current officials on privilege or immunity matters is no different than his authority to direct them on other matters. The only remaining question is the legality of his claim of privilege or immunity. But when former officials, or other entities not subject to presidential control, are compelled to provide information, the president’s authority as head of the executive branch is no longer applicable. With respect to executive privilege, the basis of the president’s authority is the contention that only the president can waive privilege or decide to disclose it. In short, the president controls that information. The basis for the claimed immunity, however, is that the Constitution’s separation of powers (along with Congress’s lack of any express constitutional authority) prohibits Congress from compelling the president to appear to testify and, by extension, prohibits Congress from compelling the president’s “alter egos” as well. Yet that rationale alone does not provide any basis for a presidential direction to a former official.

In some circumstances, the president may be able to point to another source of law that empowers him to determine whether to disclose. Consider the other ongoing dispute between McGahn and the judiciary committee following the committee’s broad subpoena for both testimony and documents related to the special counsel’sinvestigation. On May 7, the White House directed McGahn not to comply with the document demands in the subpoena but did not assert executive privilege. Instead, it noted that the “records remain subject to the control of the White House” and, in a letter to the committee, claimed that McGahn did not have “the legal right to disclose the[] documents to third parties.” Both letters cited the “significant Executive Branch confidentiality interests” and “executive privilege,” and McGahn thus informed the committee that he would not turn over the documents because he was “not free to disregard” his obligations to the president.

The White House likely does have a legal basis for its direction related to documents. The Presidential Records Act (PRA), 44 U.S.C. § 2201-2209, provides that, during a president’s term in office, the president “shall remain exclusively responsible for custody, control and access” to presidential records. The act defines “presidential records” broadly, to mean any document “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function it is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” Personal records, by contrast, include only documents “of a purely private or nonpublic character which do not relate to or have an effect upon” official actions carrying out the president’s duties. In other words, every document created or received in the White House that relates to the president’s official activities as president is a presidential record, which would likely include almost all of the documents subpoenaed from McGahn. Under the PRA, the president retains the exclusive authority to control their dissemination while he is in office.

But if an individual, such as a former official, is not subject to presidential control—and in the absence of any additional law giving the president the authority to decide whether particular information is disclosed or testimony provided—the only remaining source of authority would be an implied, freestanding constitutional authority to control the dissemination of the information. Although immunity is not, at first glance, concerned with information because it attaches to an individual, it is, on closer inspection, entirely dependent on a particular type of information. Close presidential advisers are immune only when they are compelled to testify “about their official duties.” The McGahn opinion quotes a memorandum by then-Assistant Attorney General Antonin Scalia that presidential advisers have appeared before Congress “only where the inquiry related to their own private affairs or where they had received Presidential permission.” And every OLC opinion on immunity qualifies its reasoning by noting that the testimony sought relates to the “official duties” of the officer. In other words, immunity is not about the disclosure of precise information in the way that executive privilege is, but it does prevent the disclosure of what could be called “executive branch information,” that is, information related to or arising during executive branch officials’ performance of their official duties.

The unanswered question is how the president’s control of certain privileged information transforms in the immunity context into an authority to control a private citizen. The issue of control is not unique to McGahn, of course, and arises whenever the executive branch seeks to prevent an outside party, including a former official, from disclosing executive branch information to Congress. In these circumstances, the executive branch has claimed the authority to direct the control of the information. OLC, for example, has opined that the president may direct an independent agency to withhold information pursuant to an executive privilege claim when the information relates to the agency’s “executive” functions, even if the president “may be limited, in certain questions of removal, from asserting direct supervision and control” over the agency generally.

Private outside parties also present the same issue. Most notably, in 1976 a congressional committee sought to investigate warrantless wiretapping and, to do so, sought documents from AT&T rather than seeking them from the executive branch. President Ford instructed AT&T “as an agent of the United States to respectfully decline to comply with the Committee subpoena.” But AT&T had the opposite inclination from McGahn and felt “obligated to disregard” the president’s instructions and comply with the subpoena. Faced with the potential release of that national security information, the executive branch filed suit against AT&T to enjoin it from turning over the documents. Congress intervened and, ultimately, after the dispute went up to the D.C. Circuit twice, the two sides reached a resolution. The cause of action in the AT&T litigation was, however, contractual. The agreement between AT&T and the government prohibited the disclosure of the documents at issue and was ultimately the basis for the president’s direction not to comply with the subpoena.

Directions to former officials or independent agencies not to produce information as a result of or to preserve a claim of executive privilege rest on constitutional, not contractual, grounds. And, generally, third parties and former officials appear to believe that this constitutional prerogative is valid. Sally Yates, for example, gave the Department of Justice and White House notice of her planned voluntary testimony about her communications to the White House regarding Michael Flynn and an opportunity to claim privileges, even if she suggested those privileges may have been waived. And, in an oversight dispute between the Obama administration and the House Committee on Financial Services related to the debt ceiling, the Federal Reserve Bank of New York (FRBNY)—which, by statute, operates as a “fiscal agent” of the United States for some purposes—initially refused to comply with the committee’s subpoenas. The bank claimed that, because the documents related to its “duties as fiscal agent,” it had to seek authorization from the secretary of the Treasury. FRBNY cited the Restatement (Third) of Agency for the proposition that an agent may not disclose confidential information related to the agency relationship without authorization from its principal. Similarly, when the special counsel sought testimony from former Trump adviser Steve Bannon, his attorney claimed that "[e]xecutive privilege belongs to the President of the United States. It’s not Mr. Bannon’s right to waive it.”

Distinguishing Between Immunity and Privilege

The executive branch’s view of the president’s authority to control the dissemination of certain information—pursuant to the doctrine of executive privilege—informs its belief that the president may direct both current and former officials, as well as other third parties, not to comply with congressional subpoenas. Because the privilege belongs to the president, he alone makes the decision whether to disclose the information, even if the official no longer works for him.

Whatever the merits of that executive branch doctrine regarding privilege, which has never really been tested, its extension to the immunity doctrine is difficult to justify. In the McGahn opinion, OLC claims that the president has the authority to “lawfully” direct McGahn not to appear as required by a congressional subpoena. But the opinion does not identify the source of the president’s authority to issue such a command, let alone provide a constitutional theory to justify it. OLC is clear that immunity is not privilege, and, unlike executive privilege, the president does not determine or assert immunity. Immunity opinions are written by OLC, and the White House counsel typically sends a letter indicating that the person is immune based on that opinion. The White House letter does not claim that the president has “asserted” McGahn’s immunity; it identifies immunity as a constitutional status attaching to certain senior advisers, including McGahn. If the adviser is sufficiently senior and close to the president, he or she is immune, full stop. There is no need for action by the president; immunity already exists. The only role for the president is to direct the official not to appear.

By contrast, for a privilege claim, the attorney general, not the head of OLC, has traditionally written an opinion advising the president that he may assert privilege, and the president then determines whether to assert privilege over the specific information, documents or category of documents at issue. The president directs the individual subject to the subpoena not to provide information, but the basis for that direction, if not always spelled out, is apparent in existing executive branch doctrine: The president alone controls the dissemination of material protected by executive privilege. In other words, his authority follows the information.

Because the president does not assert immunity, however, it is not the case that the authority to determine whether a senior adviser is immune lies with the president. Permission from the president would be necessary for current officials subject to his direction. But that is not true of former officials.

Why then does McGahn feel “obligated” to abide by the president’s direction? And why did Miers’s counsel claim she had no choice other than to comply? It is a difficult question to answer and, in my opinion, one that has not been given sufficient attention or exploration. In the context of privilege, there is at least an argument that the president owns the privilege and must therefore be the one to decide whether or not to assert it. But the president does not “own” the immunity of his advisers. McGahn may believe he is immune, based on the OLC opinion, but if that is so, it seems that he and his attorney should have to make that claim. By conflating the president’s authority under the distinct substantive doctrines of executive privilege and immunity, executive branch practice has eliminated the agency of the former officials in determining whether they must comply with a congressional subpoena.

In other words, the dispute between the committee and McGahn for his testimony, and the potential looming disputes between Hicks and Donaldson and the committee for their testimony, are just that—disputes between the congressional committee and the individuals in question. The executive branch is, of course, interested because of the information at issue—the former officials’ testimony about their official actions in their prior capacities as members of the executive branch. But the doctrine that protects information is privilege, not immunity. The president can always assert executive privilege over certain subjects or information, as President Bush did over Sara Taylor’s testimony. Taylor was not immune because she was not senior enough, so she had to appear and refuse to answer questions based on the president’s claim of privilege and direction to withhold the information. Nadler’s letter chastises the White House for its claim that McGahn is immune without an assertion of executive privilege. But Nadler misunderstands the whole point of the immunity doctrine. It is separate and distinct from privilege and not grounded in the president’s ability to withhold particular information. An assertion of privilege is neither necessary nor even relevant.

The executive branch recognizes and emphasizes that distinction. But instead of considering its implications for the president’s authority to direct former officials, the executive branch has allowed underlying assumptions about privilege to seep into immunity doctrine without rigorous analysis. That is likely the result of former officials such as McGahn and Miers, and most likely their attorneys, being unwilling to refuse to comply with a congressional subpoena without such a contrary direction. The president’s direction allows them to claim bystander status, to cast themselves as caught between two competing demands. If that is the case, however, there needs to be some explanation for the “competing demand” coming from the executive branch and some legal justification for it. Arguably, there is some theory in the context of a privilege assertion. To date, there is none where immunity is concerned.

Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.

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