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 has recognized “the necessity for protection of the public interest

3

Opinions of the Office of Legal Counsel in Volume 38

in candid, objective, and even blunt or harsh opinions in Presidential decisionmak-

ing.” 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 prospect 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 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 executive privilege during live

testimony in response to hostile questioning would not remove the threat to the

confidentiality of presidential communications. An immediate presidential adviser

could be asked, under the express or implied threat of contempt of Congress, a

wide range of unanticipated and hostile questions about highly sensitive delibera-

tions 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 infor-

mation. The committee not only poses the questions to the witness, but also rules

on any objections 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 presiden-

tial decisionmaking—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 President’s ability to discharge his constitutional

functions and to the separation of powers, immediate presidential advisers must

have absolute immunity from congressional compulsion to testify about matters

that occurred 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 accom-

modation 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 represents an affirmative exercise of presidential autonomy. It reflects a

decision by the 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

4

Response to Congressional Subpoena Issued to Assistant to the President

B.

This longstanding Executive Branch position is consistent with relevant Su-

preme Court case law. The Court has not yet considered whether Congress may

secure the testimony of an immediate presidential adviser 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 afforded Members of Congress themselves. See Gravel v.

United States, 408 U.S. 606 (1972). “It is literally impossible,” the Court ex-

plained, “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 preserve “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 President’s

immediate advisers must share his absolute immunity from congressional

compulsion to testify. As noted above, the President’s immediate advisers are his

“alter egos,” allowing him to fulfill the myriad responsibilities 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

hindering his ability to carry out the functions entrusted to him by the Constitu-

tion. Subjecting immediate presidential advisers to congressional testimonial

process would thus “diminish[] and frustrate[]” the purpose of the President’s own

absolute immunity from such process—just as in Gravel, denying “Speech or

Debate” immunity to legislative aides would have “diminished and frustrated” the

protections granted to Members of Congress 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 advisers. 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 damages 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

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.

5

Opinions of the Office of Legal Counsel in Volume 38

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 judicially 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 disinter-

ested arbiter of a private dispute, not as a party in interest to the very lawsuit it

adjudicates. Indeed, the court is charged with impartially administering procedural

rules designed to protect witnesses from irrelevant, argumentative, harassing,

cumulative, privileged, 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 congres-

sional proceeding threatens to subject presidential advisers to coercion 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 rejected the

defendants’ argument that, as “alter egos” of the President, they should be entitled

to absolute immunity from civil claims for damages, 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 Harlow, the Court conceded that the defendants’ claim of

absolute immunity based on Gravel was “not without force,” but concluded that

the argument 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”—were entitled to only qualified immunity. Harlow, 457 U.S.

at 810.

6

Response to Congressional Subpoena Issued to Assistant to the President

Given the dissimilarities between civil suits for damages and compelled con-

gressional 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 prospect 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 imple-

mentation of laws that Congress has passed. Cf. Rehnquist Memorandum at 8–9.

By contrast, an immediate presidential adviser is appointed solely by the Presi-

dent, without Senate confirmation, 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 independ-

ence of the presidency and the President’s ability to obtain candid and sound

advice—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) (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 positions).3

Similarly, in United States v. Nixon, the Supreme Court expressly distinguished

the privilege issues arising in criminal cases from the privilege issues that would

3

The Harlow Court also observed that civil suits for money damages against presidential 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

compulsion to testify, because (as we have explained) compelling immediate presidential advisers 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 necessary to render the President’s own immunity

fully meaningful.

7

Opinions of the Office of Legal Counsel in Volume 38

arise in the context of compelled congressional testimony. In Nixon, the Court held

that the President could assert only a qualified, rather than an absolute, privilege to

resist a subpoena for tape recordings 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 clear that it was “not . . . concerned with the balance between the Presi-

dent’s . . . confidentiality interest and congressional demands for information.”

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 criminal 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 inapposite). 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 congres-

sional subpoena for testimony. This is so in at least two respects.

First, as the Court explained in Cheney, “the need for information in the crimi-

nal context is” particularly weighty “because ‘our historic[al] commitment 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 (quoting United States v. Nixon, 418 U.S. at 708–09) (internal

quotation marks omitted) (alterations in original)). 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 predicted consequenc-

es 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 ability to determine whether there is probable cause to believe

that certain 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).

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 subpoe-

naed 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

8

Response to Congressional Subpoena Issued to Assistant to the President

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 prospect of the

President (or one of his immediate advisers) being summoned at Congress’s will

to appear before it to respond to 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 obligation 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 Presi-

dent 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 testifying 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 entitled to absolute

immunity from congressional compulsion to testify. 558 F. Supp. 2d at 99. The

court’s analysis relied heavily on Harlow, Harlow’s discussion of Gravel, and

Nixon. See 558 F. Supp. 2d at 99–105. For the reasons set forth above, we believe

those cases do not undermine the Executive Branch’s longstanding position that

the President’s immediate advisers are immune from congressional compulsion to

testify. We therefore respectfully disagree with the Miers court’s analysis and

conclusion, and adhere to the Executive Branch’s longstanding view that the

President’s immediate advisers have absolute immunity from congressional

compulsion to testify.

C.

Applying this longstanding view, we believe that Mr. Simas has such immuni-

ty. 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 Memoran-

9

Opinions of the Office of Legal Counsel in Volume 38

dum at 7 (President’s “immediate 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 formulate and communi-

cate 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 to Fred F. Fielding, Counsel to the Presi-

dent, from Steven G. Bradbury, Principal Deputy Assistant Attorney General,

Office of Legal Counsel (Aug. 1, 2007) (immunity of President Bush adviser Karl

Rove); Bradbury Memorandum (immunity of Counsel to President Bush Harriet

Miers). 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 im-

munity that is “absolute and may not be overborne by [the Committee’s] compet-

ing interests.” Assertion of Executive Privilege, 23 Op. O.L.C. at 4. But even if

Mr. Simas were only entitled to qualified immunity, which could be overcome by

a sufficient showing of compelling need, we would conclude that the Committee

had not made the requisite showing.

A.

No court has yet considered the standard that would be used to determine

whether a congressional committee’s interests overrode an immediate 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 possible standards. In Senate Select Commit-

tee, 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 oversight power may be used

only to “obtain information in aid of the legislative function”). And in Sealed

Case, the court held that “in order to overcome a claim of presidential privilege

raised against a grand jury subpoena, it is necessary to specifically demonstrate

why it is likely that the evidence contained in presidential communications is

10

Response to Congressional Subpoena Issued to Assistant to the President

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

investigation, “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 appropriate

standard for assessing whether a congressional committee’s assertion of need had

overcome an immediate presidential adviser’s qualified testimonial immunity. As

explained above, judicial proceedings—including 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 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 government “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 decades, the political branches strive to avoid the “constitutional

confrontation” 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.”) (quotation marks omitted).

Accordingly, before an immediate presidential adviser’s compelled testimony

could be deemed demonstrably critical to the responsible fulfillment of a congres-

sional 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 [publicly available] tran-

scripts . . . are deficient in meeting [its] need,” and then finding that the Commit-

tee “points to no specific legislative decisions that cannot responsibly be made

without access to materials uniquely contained in the tapes”).

B.

The Committee has not shown that Mr. Simas’s testimony is demonstrably

critical to the responsible fulfillment of its legislative function. The Committee’s

investigation began with a broad request for “all documents and communications,

including e-mails, related or referring to the Office of Political Strategy and

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Opinions of the Office of Legal Counsel in Volume 38

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 the Hon. Darrell E. Issa, Chairman, Committee

on Oversight and 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 permissi-

ble 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 the Hon. 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 the Hon.

Darrell E. Issa, Chairman, Committee on Oversight and Government Reform,

House of Representatives at 1 & n.5 (May 27, 2014); Letter for the Hon. 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 adequate steps to ensure

that political activity by Administration officials complies with relevant statutes,

including the Hatch Act,” and to understand “the role and function of the White

House Office of Political Strategy and Outreach.” Invitation Letter. The Commit-

tee did not, however, identify any specific unanswered questions that Mr. Simas’s

testimony 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 statutes, and explaining that

the activities cited by the Committee did not violate those statutes. See Letter for

the Hon. Darrell E. Issa, Chairman, Committee 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, including 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 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 employees. See id. at 3. Finally, the White House Counsel’s Office offered

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Response to Congressional Subpoena Issued to Assistant to the President

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 the Hon. Darrell E. Issa,

Chairman, Committee on Oversight and Government Reform, House of Repre-

sentatives (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 the Hon.

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 information 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

“outstanding questions for Mr. Simas,” id. at 2, the Committee has not identified

them, let alone explained why he must answer them at a public hearing. At this

point, it is not evident that further efforts at accommodation would be futile, and

hence that compelling an immediate presidential 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 fulfillment 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 immunity were

qualified rather than absolute.4

4

Even if it were appropriate to apply the Sealed Case standard for overcoming qualified 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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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 President in the Office of

Political Strategy and Outreach.

KARL R. THOMPSON

Acting Assistant Attorney General

Office of Legal Counsel

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