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

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Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach from Congressional Subpoena Immunity of the Assistant to the President and 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 Outreach (“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 the Hon. 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 required to appear to testify in response to this subpoena. I. A. The Executive Branch’s longstanding position, reaffirmed by numerous Ad- ministrations of both political parties, is that the President’s immediate advisers are absolutely immune from congressional testimonial process. See, e.g., Memo- randum for the Hon. 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” at 7 (Feb. 5, 1971) (“Rehnquist Memoran- dum”).1 This immunity is rooted in the constitutional separation of powers, and in 1 See also Letter to 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 Former Counsel to the President from Compelled Congressional Testimony, 31 Op. O.L.C. __ (July 10, 2007) (“Bradbury Memorandum”), available at http://www.justice.gov/olc.opinions.htm; Assertion of Execu- 1 Opinions of the Office of Legal Counsel in Volume 38 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 separa- tion of powers principles—including the President’s independence and autonomy from Congress—would be threatened.” Immunity of Former Counsel to the President from Compelled Congressional Testimony, 31 Op. O.L.C. __, at *2 (July 10, 2007) (“Bradbury Memorandum”), available at http://justice.gov/olc/ opinions.htm. In the words of one President, “[t]he doctrine [of separation of powers] would be shattered, and the President, contrary to our fundamental 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 possible 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 powers, Congress may not compel him to appear before it.” Asser- tion of 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 at *2. The President’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 President relies directly for candid and sound advice—are in many ways an extension of the President himself. tive 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 to 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, Assistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers (Aug. 11, 1977); Memorandum for the Hon. 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). 2 Response to Congressional Subpoena Issued to Assistant to the President 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 constitutional 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 Executive 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 infor- mation and analysis supplied by advisers.”). “Given the close working relationship that the President must have with his immediate advisors as he discharges his constitutionally assigned duties,” “[s]ubjecting [those advisors] to the congres- sional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions.” Assertion of Executive Privilege, 23 Op. O.L.C. at 5. In particular, a congressional power to compel the testimony of the President’s immediate advisers would interfere with the President’s discharge of his constitu- tional functions and damage the separation of powers in at least two important respects. First, such a power would threaten the President’s “independence and autonomy from Congress.” Bradbury Memorandum at *2; cf. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 370, 385 (2004) (citing the President’s need for auto- nomy 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 recom- mendations to the President”). Absent immunity for a President’s closest advisers, congressional committees 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 significant congressional encroachment on, and interference with, the President’s prerogatives and his ability to discharge his duties with the advice and assistance of his closest advisers. They also would promote a perception that the President is subordinate to Congress, contrary to the Constitution’s separation of governmental powers into equal and coordinate branches. Second, a congressional power to subpoena the President’s closest advisers 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
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