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

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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” 5 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). 6 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
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