Congressional Oversight of the White House

(Slip Opinion)

Congressional Oversight of the White House

Congressional oversight of the White House is subject to greater constitutional limitations

than oversight of the departments and agencies of the Executive Branch, in light of the

White House staff’s important role in advising and assisting the President in the dis-

charge of his constitutional responsibilities, the need to ensure the independence of the

Presidency, and the heightened confidentiality interests in White House communica-

tions.

January 8, 2021

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

This memorandum opinion summarizes the principles and practices

governing congressional oversight of the White House. The White House,

as we use the term here, refers to those components within the Executive

Office of the President (“EOP”), such as the White House Office and the

National Security Council, whose principal function is to advise and assist

the President in the discharge of the duties of his office. All three branch-

es of government have recognized that the White House has a role and

status distinct from the executive branch departments and agencies, and

this Office has long recognized those distinctions to be critical to the

development of principles and practices for congressional oversight

addressed to the White House.

The Constitution vests all of “[t]he executive Power” in the President

and charges him alone with the responsibility to “take Care that the Laws

be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3. In carrying

out that charge, the President necessarily depends on “the assistance of

subordinates,” Myers v. United States, 272 U.S. 52, 117 (1926), most of

whom are his appointed officials in the executive departments and agen-

cies. Yet the size and complexity of modern federal administration have

required the establishment of the White House as an organizational appa-

ratus to directly support the President in the discharge of his responsibili-

ties. White House personnel work in close proximity to the President and

advise and assist him in the development of presidential policy, in super-

vising and guiding the affairs of the executive branch departments and

agencies, and in communicating with Congress, the American public, and

foreign governments.

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45 Op. O.L.C. __ (Jan. 8, 2021)

The White House’s important role in advising and assisting the Presi-

dent has special significance for congressional oversight. Each House of

Congress has, as an adjunct to its legislative power, the constitutional

authority to obtain information, a power typically carried out through its

committees. But this investigative authority, often referred to as “over-

sight” authority, is subject to limitations. A congressional information

request “is valid only if it is ‘related to, and in furtherance of, a legitimate

task of the Congress.’” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031

(2020) (quoting Watkins v. United States, 354 U.S. 178, 187 (1957)).

Consequently, the Executive Branch must scrutinize the asserted legisla-

tive purpose underlying a congressional request by examining the objec-

tive fit between that purpose and the information sought. Because Con-

gress may conduct oversight investigations only with respect to

“‘subject[s] on which legislation could be had,’” id. (quoting Eastland v.

U.S. Servicemen’s Fund, 421 U.S. 491, 506 (1975)), Congress may not

conduct such investigations for the purpose of reviewing the discharge of

functions exclusively entrusted to the President by the Constitution. See,

e.g., Assertion of Executive Privilege with Respect to Clemency Decision,

23 Op. O.L.C. 1, 2 (1999) (Reno, Att’y Gen.) (“Clemency Decision”). 1 It

follows that the activities of White House advisers are less likely than the

activities of the departments’ and agencies’ staffs to involve matters

within Congress’s oversight authority.

Even when Congress operates within the appropriate scope of its over-

sight authority, the Constitution places additional separation of powers

constraints on inquiries directed at the White House. The Supreme Court

1 This memorandum addresses Congress’s authority to investigate in furtherance of its

power to legislate. See McGrain v. Daugherty, 273 U.S. 135, 175 (1927). We do not

consider Congress’s parallel authority to obtain the information necessary to the discharge

of its other powers, such as the House’s power to impeach, although we have recognized

that similar principles apply in those areas. See, e.g., Exclusion of Agency Counsel from

Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *3 (Nov. 1,

2019) (recognizing “that a congressional committee must likewise make a showing of

need that is sufficient to overcome [executive] privilege in connection with an impeach-

ment inquiry”); Letter for Pat A. Cipollone, Counsel to the President, from Steven A.

Engel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3, 2019) (recogniz-

ing that the immunity of certain presidential advisers from compelled congressional

testimony “applies in an impeachment inquiry just as it applies in a legislative oversight

inquiry”).

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Congressional Oversight of the White House

has recognized the importance of “the Executive Branch’s interests in

maintaining the autonomy of [the Presidency] and safeguarding the confi-

dentiality of its communications.” Cheney v. U.S. Dist. Ct., 542 U.S. 367,

385 (2004). These concerns are particularly acute with respect to White

House advisers. Congressional oversight directed at the White House

must be conducted in a way that protects the ability of the White House to

function effectively in advising and assisting the President as he carries

out his responsibilities under the Constitution.

Congressional inquiries are also constrained by the heightened confi-

dentiality interests in White House communications. See id. At the core of

those interests is the presidential communications component of executive

privilege, which covers many White House communications involving

presidential decision-making. Congressional inquiries directed to the

White House must take account of the presumptive application of execu-

tive privilege to White House communications, as well as the President’s

interests in autonomy and independence. Even when the White House

may have relevant information, these separation of powers and privilege

concerns weigh in favor of Congress seeking available information first

from the departments and agencies before proceeding with White House

requests. 2

This memorandum proceeds in four Parts. Part I describes the devel-

opment of the White House as an organization and its central role in

advising and assisting the President. Part II discusses the scope of con-

gressional oversight authority and the limits on that authority as it applies

to matters related to the discharge of the President’s constitutional func-

tions. Part III explains that when Congress directs its oversight requests to

the White House, the constitutionally mandated “accommodation process”

should take into account the limitations imposed on those requests by

separation of powers principles and the heightened executive privilege

interests attending the communications of the White House.

2 Although this memorandum addresses the EOP components whose principal function

is to advise and assist the President, many of the principles discussed here would apply as

well to so-called “dual hat” presidential advisers in other components who “exercise

substantial independent authority or perform other functions in addition to advising the

President.” In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). To the extent that

Congress directs oversight efforts at activities implicating the advising “hat” of those

officials, many of the same principles governing oversight would apply.

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45 Op. O.L.C. __ (Jan. 8, 2021)

Finally, Part IV assesses the mechanisms for enforcing congressional

subpoenas and discusses legal issues commonly raised by congressional

subpoenas directed to White House staff. Historically, Congress has had

no shortage of ways to use its powers to press executive branch officials

to negotiate and to comply with appropriate informational demands.

Although congressional committees have recently sued to enforce several

subpoenas against executive officials, those lawsuits lack a foundation in

our Nation’s history and fall outside the constitutional and statutory

jurisdiction of the federal courts. Congress and the Executive Branch have

traditionally worked out their disputes through negotiation and compro-

mise, and the Department of Justice believes that those time-tested meth-

ods are the appropriate means for resolving disputes over congressional

information requests, no matter whether directed at the White House or

the departments and agencies within the Executive Branch.

I. Historical Background

Article II of the Constitution establishes a unitary Executive Branch

headed by the President, and it assigns to him an array of important func-

tions, including responsibility for the Nation’s foreign relations, military

affairs, and law enforcement. See Seila Law LLC v. Consumer Fin. Prot.

Bureau, 140 S. Ct. 2183, 2197 (2020) (“The entire ‘executive Power’

belongs to the President alone.”); Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 550–51 (1977) (Rehnquist, J., dissenting) (“[T]he President is made

the sole repository of the executive powers of the United States, and the

powers entrusted to him as well as the duties imposed upon him are awe-

some indeed.”). It is no surprise that, in a “world of extraordinary admin-

istrative complexity and near-incalculable presidential responsibilities,”

Presidents have consistently and increasingly turned to the “assistance of

close aides” in the White House to carry out their duties. Elena Kagan,

Presidential Administration, 114 Harv. L. Rev. 2245, 2273 (2001).

The White House’s modern organizational form traces to the EOP’s

creation in 1939 as “an institutional response to needs felt by every occu-

pant of the Oval Office . . . . [T]hese were, and remain, needs for advice

and assistance.” Harold C. Relyea, The Executive Office Concept, in The

Executive Office of the President: A Historical, Biographical, and Biblio-

graphical Guide 4 (Harold C. Relyea ed., 1997). As one leading scholar

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Congressional Oversight of the White House

put it a decade after its establishment, “[t]he creation of the Executive

Office of the President was a milestone in the history of the Presidency.”

George A. Graham, The Presidency and the Executive Office of the Presi-

dent, 12 J. Pol. 599, 603 (1950); see also Wayne Coy, Federal Executive

Reorganization Re-examined: Basic Problems, 40 Am. Pol. Sci. Rev.

1124, 1131–32 (1946) (“[T]he largest step toward enabling the President

to ‘take care’ of the effective operation of the administrative system

occurred in 1939, with the establishment of the Executive Office of the

President.”).

Long before the EOP’s establishment, Presidents received confidential

advice and assistance from individuals other than department and agency

heads. President Jackson sought help from a group of informal advisers

known as the “Kitchen Cabinet,” which “performed most of the functions

of a modern staff, serving his personal and political needs.” Richard B.

Latner, The Kitchen Cabinet and Andrew Jackson’s Advisory System, 65

J. Am. Hist. 367, 379 (1978). Historians have characterized this group of

informal advisers “as an early prototype of the President’s White House

staff, a group of personal aides providing the President with a variety of

services.” Id. at 378; see also id. (noting that Jackson’s informal advisers

shared his “perspective in overseeing the general direction of his admin-

istration, instead of the more limited perspective of department heads”).

The tradition of Jackson-style kitchen cabinets continued for nearly a

century: “John Tyler had his ‘Virginia Schoolmasters’; Grover Cleveland

maintained a ‘Fishing Cabinet’; Teddy Roosevelt sported the ‘Tennis

Cabinet’; Warren Harding encouraged a ‘Poker Cabinet’; [and] Herbert

Hoover instituted a ‘Medicine Ball Cabinet.’” Relyea, The Executive

Office Concept at 43.

During the 1920s, Congress considered several proposals to more for-

mally establish the “administrative machinery” needed “to enable the

President to discharge his managerial duties.” Edward H. Hobbs, An

Historical Review of Plans for Presidential Staffing, 21 L. & Contemp.

Probs. 663, 670 (1956). Although these initial proposals were not adopted,

the advent of the New Deal spurred lasting action. As the administrative

state dramatically expanded, President Franklin D. Roosevelt realized that

he needed more staff to enable him to carry out his mounting responsibili-

ties. In early 1936, he established a three-member committee charged with

“investigat[ing] and report[ing]” upon “the organization for the perfor-

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45 Op. O.L.C. __ (Jan. 8, 2021)

mance of the duties imposed upon the President in exercising the execu-

tive power vested in him by the Constitution of the United States.” Presi-

dent’s Committee on Administrative Management, Administrative Man-

agement in the Government of the United States 2 (1937) (“Brownlow

Report”). The President’s Committee on Administrative Management,

more commonly known as the Brownlow Committee after its chair, “sur-

veyed the landscape immediately after the spate of New Deal reforms,

[and] found a President who although ‘now ha[ving] popular responsibil-

ity’ for the ‘direction and control of all departments and agencies of the

Executive Branch . . . [was] not equipped with adequate legal authority or

administrative machinery to enable him to exercise it.’” Kagan, Presiden-

tial Administration, 114 Harv. L. Rev. at 2275.

The Brownlow Committee “drafted a blueprint for an administrative

staff agency, which [it] labeled the Executive Office.” Hobbs, Plans for

Presidential Staffing, 21 L. & Contemp. Probs. at 674. The Committee’s

final report recommended that Congress “[e]xpand the White House

staff so that the President may have a sufficient group of able assistants

in his own office to keep him in closer and easier touch with the wide-

spread affairs of administration and to make a speedier clearance of the

knowledge needed for executive decision.” Brownlow Report at 46.

Stressing the urgent need for reform, the Committee included in its

report a warning: “The President needs help. His immediate staff assis-

tance is entirely inadequate.” Id. at 5. 3

President Roosevelt strongly endorsed the Committee’s recommenda-

tions. He stated that “[t]he plain fact is that the present organization and

equipment of the Executive Branch of the Government defeat the Consti-

tutional intent that there be a single responsible Chief Executive to coor-

dinate and manage the departments and activities in accordance with the

laws enacted by the Congress.” A Recommendation for Legislation to

Reorganize the Executive Branch of the Government (Jan. 12, 1937),

5 Pub. Papers of Pres. Franklin D. Roosevelt 668, 670 (1938).

3 Louis Brownlow later recounted that the EOP’s mission as contemplated by his

Committee was to ensure that the President could “control the policies of his departments,

while leaving to the head of each department the decisions which are peculiar to its

activity and the work incidental thereto.” Louis Brownlow, The Executive Office of the

President: A General View, 1 Pub. Admin. Rev. 101, 104 (1941).

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Congressional Oversight of the White House

Congress authorized President Roosevelt to establish the EOP under the

Reorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561; soon there-

after, he issued Reorganization Plan No. 1, which became effective in July

1939, 4 Fed. Reg. 2727, 53 Stat. 1423. President Roosevelt implemented

the reorganization plan by executive order, organizing the EOP into five

divisions, each charged with a distinct mission. Notably, the White House

Office would “serve the President in an intimate capacity in the perfor-

mance of the many detailed activities incident to his immediate office.”

Exec. Order No. 8248, 4 Fed. Reg. 3864, 3864 (Sept. 8, 1939). The Order

provided that presidential assistants would hold “no authority over anyone

in any department or agency” and should “[i]n no event . . . be interposed

between the President and the head of any department or agency.” Id.

EOP officials soon came to take a leading role in developing and coor-

dinating policy recommendations for the President. Within its first dec-

ade, the EOP expanded to include entities specifically created for those

purposes. The Council of Economic Advisers, for example, was estab-

lished in the EOP in 1946 to “analyze and interpret economic develop-

ments” and “formulate and recommend national economic policy to

promote full employment, production, and purchasing power under free

competitive enterprise.” Employment Act of 1946, Pub. L. No. 79-304,

§ 4(a), 60 Stat. 23, 24. A year later, the National Security Council was

created to “advise the President with respect to the integration of domes-

tic, foreign, and military policies relating to the national security so as to

enable the military services and the other departments and agencies of the

Government to cooperate more effectively in matters involving the na-

tional security.” National Security Act of 1947, Pub. L. No. 80-253,

§ 101(a), 61 Stat. 495, 496. 4 By the end of the Truman Administration,

the EOP had grown to eleven principal units. Harold C. Relyea, Cong.

Research Serv., 98-606 GOV, The Executive Office of the President: An

Historical Overview 9 (updated Nov. 26, 2008).

As the White House developed as an organization, all three branches of

government recognized that it should be viewed differently from the

departments and agencies of the Executive Branch. With respect to con-

gressional oversight specifically, in the 1970s Assistant Attorneys General

4 The National Security Council formally became an EOP component upon the adop-

tion of Reorganization Plan No. 4 of 1949, 63 Stat. 1067.

7

45 Op. O.L.C. __ (Jan. 8, 2021)

William Rehnquist and Antonin Scalia, among others, recognized that the

President’s immediate White House advisers must be treated differently

from officials of the departments and agencies when Congress seeks their

testimony. See 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 ”

(Feb. 5, 1971); Letter for Phillip E. Areeda, Counsel to the President,

from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel

(Sept. 25, 1974); see also infra Part IV.B.

Congress and the federal courts similarly recognized the need to treat

the President’s inner circle of advisers differently under other federal

laws. “Article II not only gives the President the ability to consult with his

advisers confidentially, but also, as a corollary, it gives him the flexibility

to organize his advisers and seek advice from them as he wishes.” Ass’n

of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C.

Cir. 1993). Thus, although the Freedom of Information Act (“FOIA”) by

its terms applies to the EOP, 5 U.S.C. § 552(f )(1), the Supreme Court

held that Congress did not include “‘the President’s immediate personal

staff or units in the Executive Office whose sole function is to advise and

assist the President.’” Kissinger v. Reporters Comm. for Freedom of the

Press, 445 U.S. 136, 156 (1980) (quoting H.R. Rep. 93-1380, at 15 (1974)

(Conf. Rep.)). Federal courts have accordingly limited FOIA to exclude

various EOP components, making this determination by considering “how

close operationally the [component] is to the President, what the nature of

its delegation from the President is, and whether it has a self-contained

structure.” Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993); see also,

e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir.

2013) (holding that Secret Service logs of visitors to such advise-and-

assist EOP offices are not “agency records” for purposes of FOIA).

Congress similarly recognized that the President should have plenary

discretion when it comes to hiring, paying, and organizing certain White

House staff. In 1978, Congress authorized the President “to appoint and

fix the pay of employees in the White House Office without regard to any

other provision of law.” Pub. L. No. 95-570, 92 Stat. 2445, 2445 (codified

at 3 U.S.C. § 105(a)). As this Office later observed, that statute “reflect[s]

Congress’s judgment that the President should have complete discretion

8

Congressional Oversight of the White House

in hiring staff with whom he interacts on a continuing basis.” Applicabil-

ity of the Presidential Records Act to the White House Usher’s Office, 31

Op. O.L.C. 194, 197 (2007). As in the FOIA context, Congress thus

viewed the advise-and-assist components of the White House as not only

different from the departments and agencies, but also different from the

other components of the EOP. See Citizens for Responsibility & Ethics in

Wash. v. Office of Admin., 566 F.3d 219, 223 (D.C. Cir. 2009). Congress

has continued to recognize that distinction up to the present day. See, e.g.,

Presidential and Federal Records Act Amendments of 2014, Pub. L. No.

113-187, § 2(e), 128 Stat. 2003, 2006–07 (codified at 44 U.S.C. § 2209)

(prohibiting “the immediate staff of the President” and any “unit or indi-

vidual of the Executive Office of the President whose function is to advise

and assist the President” from sending presidential records using non-

official electronic message accounts).

The White House continues to play a unique role in the Executive

Branch, providing the President with close and confidential advice and

assistance on a daily basis. The White House acts as the President’s

primary information-gathering and policy-development arm, and serves as

“something of a central nervous system of the executive branch. . . . [It] is

a ‘force multiplier.’ Without it, the President would be greatly weakened

in his struggle to instantiate his preferences within the executive branch.”

Saikrishna B. Prakash, Fragmented Features of the Constitution’s Unitary

Executive, 45 Willamette L. Rev. 701, 714, 716 (2009). This memoran-

dum opinion’s remaining Parts explain how the White House’s special

status affects congressional oversight.

II. Scope of Congressional Oversight Authority

Although “Congress has no enumerated constitutional power to conduct

investigations or issue subpoenas,” each House has implied authority to

secure the information “needed” to legislate. Mazars, 140 S. Ct. at 2031

(internal quotation marks omitted); McGrain v. Daugherty, 273 U.S. 135,

160–61 (1927). Each House may “make investigations and exact testimo-

ny, to the end that it may exercise its legislative function advisedly and

effectively.” McGrain, 273 U.S. at 161; see also Scope of Congressional

Oversight and Investigative Power with Respect to the Executive Branch,

9 Op. O.L.C. 60, 60 (1985) (“Scope of Congressional Oversight ”) (“It is

9

45 Op. O.L.C. __ (Jan. 8, 2021)

beyond dispute that Congress may conduct investigations in order to

obtain facts pertinent to possible legislation and in order to evaluate the

effectiveness of current laws.”). The House and Senate typically exercise

their investigative functions through delegations to committees, each of

which has jurisdiction over identified legislative subjects and agencies.

The investigative authority of each committee is bounded by its subject

matter jurisdiction, as identified by the rules and resolutions of the rele-

vant congressional chamber.

Congress’s authority to investigate in furtherance of its power to legis-

late has come to be known as its “oversight” authority, but that shorthand

term does not imply a general authority to review the actions of the Exec-

utive Branch. Congress may direct the departments and agencies through

the enactment of appropriate legislation, but the Constitution does not

otherwise confer on Congress or its committees an authority to “oversee”

or direct the Executive Branch in the conduct of its assigned duties and

responsibilities under Article II. Rather, because Congress enjoys an

implied power of investigation that “is ‘justified solely as an adjunct to

the legislative process,’ it is subject to several limitations.” Mazars, 140

S. Ct. at 2031 (quoting Watkins, 354 U.S. at 197). Two of these limita-

tions have particular significance for congressional oversight of the White

House. First, because a congressional oversight request “is valid only if it

is ‘related to, and in furtherance of, a legitimate task of the Congress,’” it

“must serve a ‘valid legislative purpose.’” Id. (quoting Watkins, 354 U.S.

at 187; Quinn v. United States, 349 U.S. 155, 161 (1955)). Second, and

relatedly, the scope of oversight authority is limited to subjects “on which

legislation could be had,” McGrain, 273 U.S. at 177, and therefore Con-

gress “cannot inquire into matters which are within the exclusive province

of one of the other branches of the Government,” Barenblatt v. United

States, 360 U.S. 109, 112 (1959), including any function committed

exclusively to the President by the Constitution. 5

5 Congressional oversight authority may encompass inquiries into the Executive

Branch’s use of appropriated funds with respect to statutory programs as well as inquiries

relevant to future appropriations. However, as Barenblatt makes clear, the fact that the

President or the federal courts may rely upon appropriated funds to carry out their activi-

ties does not mean that everything they do falls within the scope of the oversight authori-

ty. Otherwise, no matter would fall within the “exclusive province of one of the other

branches of the Government.” Barenblatt, 360 U.S. at 112. Rather, “[s]ince Congress may

10

Congressional Oversight of the White House

A. Legitimate Legislative Purpose

Congress may conduct investigations only for legitimate legislative

purposes. This Office has long counseled that “a threshold inquiry that

should be made [by the Executive] upon receipt of any congressional

request for information is whether the request is supported by any legiti-

mate legislative purpose.” Response to Congressional Requests for Infor-

mation Regarding Decisions Made Under the Independent Counsel Act,

10 Op. O.L.C. 68, 74 (1986) (“Independent Counsel Act Requests”). As

Assistant Attorney General William Barr explained, the Executive Branch

need only assess its “interest in keeping [requested] information confiden-

tial” after “it is established that Congress has a legitimate legislative pur-

pose for its oversight inquiry” in the first place. Congressional Requests

for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154

(1989) (“Congressional Requests”); see also Congressional Committee’s

Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f ), 43

Op. O.L.C. __, at *21 (June 13, 2019) (“President’s Tax Returns”) (reiter-

ating this position).

Because Congress may obtain information only where it will advance a

legitimate legislative purpose, the other branches of government must

review congressional information requests to ensure that they are not

motivated by an illegitimate purpose. As the Supreme Court recently

explained in Trump v. Mazars:

Congress has no “‘general’ power to inquire into private affairs and

compel disclosures,” [McGrain, 273 U.S.] at 173–174, and “there is

no congressional power to expose for the sake of exposure,” Wat-

kins, 354 U.S. at 200. “Investigations conducted solely for the per-

only investigate into those areas in which it may potentially legislate or appropriate, it

cannot inquire into matters which are within the [Executive’s] exclusive province[.]” Id.

at 111–12 (emphasis added). Therefore, the limits placed on Congress when conducting

oversight pursuant to its general legislative power also apply to oversight conducted

pursuant to its appropriations authority. While Congress may, pursuant to its appropria-

tions authority, review manpower statistics and other non-substantive data regarding the

resources that Presidents historically invest in areas of exclusive executive authority,

Congress lacks the authority to inquire into the Executive’s substantive decision-making

in these areas.

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45 Op. O.L.C. __ (Jan. 8, 2021)

sonal aggrandizement of the investigators or to ‘punish’ those inves-

tigated are indefensible.” Id. at 187.

140 S. Ct. at 2032; see also Branzburg v. Hayes, 408 U.S. 665, 699 –700

(1972) (a legislative committee “abuse[s] its proper function” when it

exposes for the sake of exposure). Without these limits, the Court cau-

tioned, “Congress could ‘exert an imperious controul’ over the Executive

Branch and aggrandize itself at the President’s expense[.]” Mazars, 140

S. Ct. at 2034 (quoting The Federalist No. 71, at 484 (Alexander Hamil-

ton) (Jacob E. Cooke ed., 1961)). 6

Although courts, in reviewing subpoenas directed at private parties,

have traditionally deferred to Congress’s perceptions of its need for the

information being sought, see, e.g., Barenblatt, 360 U.S. at 132, the

Supreme Court in Mazars suggested that such a deferential approach does

not extend to congressional subpoenas directed at the President’s personal

information because of the separation of powers principles at stake in any

such request, see 140 S. Ct. at 2031; see also id. at 2034–36. In such

cases, a court must “be attentive to the nature of the evidence offered by

Congress to establish that a subpoena advances a valid legislative pur-

pose”; “[t]he more detailed and substantial the evidence of Congress’s

legislative purpose, the better.” Id. at 2036. Moreover, “unless Congress

adequately identifies its aims and explains why the President’s infor-

mation will advance its consideration of the possible legislation,” it will

be “impossible to conclude that a subpoena is designed to advance a valid

legislative purpose.” Id. (internal quotation marks omitted); see also

Watkins, 354 U.S. at 201, 205–06 (reversing a contempt charge due to,

among other things, a “vague” and “broad” committee charter that ren-

dered it “impossible . . . to ascertain whether any legislative purpose

justifie[d] the disclosures sought and, if so, the importance of that infor-

mation to the Congress in furtherance of its legislative function”).

6 In the course of its oversight activities, Congress may “inquire into and publicize

corruption, maladministration or inefficiency in agencies of the Government.” Watkins,

354 U.S. at 200 n.33. It may not, however, conduct oversight solely for the purpose of

making information public. The Supreme Court has made clear that Congress “may only

investigate into those areas in which it may potentially legislate or appropriate,” Baren-

blatt, 360 U.S. at 111, and transmitting information “to inform the public . . . is not a part

of the legislative function,” Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979).

12

Congressional Oversight of the White House

The Supreme Court’s review in Mazars of a House committee’s pursuit

of the President’s financial information was consistent with how the

Executive Branch has reviewed similar requests from Congress directed at

the Executive Branch. Although the Executive Branch should seek to

accommodate legitimate requests for information concerning the depart-

ments and agencies, this Office has advised that such accommodation may

not be required where congressional committees’ requests appear to fall

outside their delegated legislative jurisdiction or lack a legitimate legisla-

tive purpose.

For instance, shortly before the Mazars decision, we concluded, based

on reasoning similar to Mazars, that a request from the House Ways and

Means Committee to the Department of the Treasury for the President’s

tax returns was not supported by a legitimate legislative purpose. Presi-

dent’s Tax Returns, 43 Op. O.L.C. __, at *3. Although the committee

sought records similar to those at issue in Mazars, the Chairman proffered

a different reason for the request, claiming that the committee sought to

evaluate the Internal Revenue Service’s practice of auditing Presidents’

tax returns. Id. at *2, *26–27. We advised that executive branch officials

were not obliged simply to accept the committee’s proffered legislative

purpose at face value, but instead must “examine the objective fit between

that purpose and the information sought, as well as any other evidence

that may bear upon the Committee’s true objective.” Id. at *17; see also

id. at *20 (noting the Executive Branch’s obligation to “confirm[] the

legitimacy of an investigative request,” especially “when deferring to the

request would effectively surrender the Executive’s obligations to a

Member of Congress”). In that case, the Chairman and other House lead-

ers had made numerous public statements suggesting that the request was

aimed at publicly exposing the President’s tax returns, so “[n]o one could

reasonably believe that the Committee [sought] six years of President

Trump’s tax returns because of a newly discovered interest in legislating

on the presidential-audit process.” Id. at *16–17. We also stressed that the

institutional reasons that have sometimes led courts to defer to Congress’s

stated legislative purpose in cases involving private parties do not apply

to the Executive Branch, “which operates as a politically accountable

check on the Legislative Branch.” Id. at *25. We concluded that the

Chairman’s stated legislative purpose for his request for the President’s

13

45 Op. O.L.C. __ (Jan. 8, 2021)

tax returns “blink[ed] reality” and was “pretextual,” id. at *16, and there-

fore was not legitimate.

This Office similarly questioned the legislative purpose underlying

three House committees’ joint request for documents related to American

foreign and defense policy with respect to Ukraine. There, the three com-

mittees had announced an investigation into the impeachment of the

President, even though the full House had not delegated any such investi-

gative jurisdiction to any of them. House Committees’ Authority to Inves-

tigate for Impeachment, 44 Op. O.L.C. __, at *47–49 (Jan. 19, 2020)

(“Authority to Investigate for Impeachment ”). In view of this basic legal

defect in the requests, see id., the committees supplemented them by

claiming that they fell within their “oversight and legislative jurisdiction.”

Id. at *8, *47 (internal quotation marks omitted).

We concluded that this attempt to justify the request did not establish a

legitimate legislative purpose, even though some of the requested materi-

als might well have fallen within the oversight jurisdiction of one or more

of the committees. The committee chairs had “made clear” in their official

correspondence “that the committees were interested in the requested

materials to support an investigation into the potential impeachment of the

President, not to uncover information necessary for potential legislation

within their respective areas of legislative jurisdiction.” Id. at *48. We

explained that “[t]he Executive Branch need not presume that [a legisla-

tive] purpose exists or accept a makeweight assertion of legislative juris-

diction.” Id. at *47 (internal quotation marks omitted). We thus found that

the committee chairmen were “seeking to do precisely what they said—

compel the production of information to further an impeachment inquiry.”

Id. at *48. The inquiry therefore was made not to advance a legitimate

legislative purpose, but instead to further an impeachment investigation

that had not been authorized at the time the subpoenas were issued. Id. at

*48–49.

We also emphasized the importance of committee jurisdiction, noting

that “[a] congressional committee’s ‘right to exact testimony and to call

for the production of documents’ is limited by the ‘controlling charter’ the

committee has received from the House.” Id. at *2 (quoting United States

v. Rumely, 345 U.S. 41, 44 (1953)); see also id. at *18–19 (discussing the

committee jurisdiction requirement in the oversight and impeachment

contexts); Watkins, 354 U.S. at 206 (“Plainly [the House’s] committees

14

Congressional Oversight of the White House

are restricted to the missions delegated to them . . . . No witness can be

compelled to make disclosures on matters outside that area.”).

We think that the separation of powers principles described in Mazars

and our recent opinions guide the appropriate approach to congressional

oversight requests directed at the White House, which inherently raise

separation of powers concerns. “[I]n assessing whether a subpoena di-

rected” at the White House “is related to, and in furtherance of, a legiti-

mate task of Congress,” the White House “must perform a careful analysis

that takes adequate account of the separation of powers principles at

stake, including both the significant legislative interests of Congress and

the unique position of the President.” Mazars, 140 S. Ct. at 2035 (internal

quotation marks omitted). Although Mazars addressed a subpoena that

sought the President’s personal financial information, there is no reason to

think that a lesser standard would apply to oversight requests directed at

the White House and its staff—requests that bear even more closely upon

interests of confidentiality and the autonomy of the Executive Branch.

The Court made clear that “congressional subpoenas for the President’s

information unavoidably pit the political branches against one another,”

id. at 2034, and therefore, all such requests necessarily raise separation of

powers concerns. See also id. at 2030 (describing certain congressional

requests for official documents as seeking “the President’s information”).

And the case for closely scrutinizing such requests is even stronger where

it is not, as in Mazars, a court that is evaluating the request, but instead

the Executive Branch during the constitutionally required accommodation

process—one purpose of which is to provide a process for the Executive

Branch to check an implied investigative power that otherwise has limited

counterweights. See President’s Tax Returns, 43 Op. O.L.C. __, at *25–

26; see also infra Part III.C (discussing the accommodation process).

In such instances, we have advised that Congress may be expected to

clearly articulate its legislative purpose, and the Executive Branch may

independently review the proffered purpose. In considering a committee’s

legislative purpose, the White House should “be attentive to the nature of

the evidence offered by Congress to establish that a subpoena advances a

valid legislative purpose.” Mazars, 140 S. Ct. at 2036. “The more detailed

and substantial the evidence of Congress’s legislative purpose, the better.”

Id. The White House may fairly expect that the committee will provide a

statement that “adequately identifies its aims and explains why the Presi-

15

45 Op. O.L.C. __ (Jan. 8, 2021)

dent’s information will advance its consideration of the possible legisla-

tion.” Id. In reviewing such a statement, the White House may take into

account all relevant facts and circumstances in ensuring that the congres-

sional request serves a legitimate legislative purpose within the appropri-

ate authority of the requesting committee.

B. Exclusive Executive Functions

Because congressional requests for information must “concern[] a sub-

ject on which legislation could be had,” U.S. Servicemen’s Fund, 421 U.S.

at 506 (internal quotation marks omitted), Congress may not conduct

oversight of the President’s discharge of his exclusive constitutional

authority. “Since Congress may only investigate into those areas in which

it may potentially legislate or appropriate, it cannot inquire into matters

which are within the exclusive province of one of the other branches of

the Government.” Barenblatt, 360 U.S. at 111−12; see also Scope of

Congressional Oversight, 9 Op. O.L.C. at 62 (congressional oversight

authority does not extend to “functions fall[ing] within the Executive’s

exclusive domain”). Congressional requests to the White House often run

into this limitation to the extent they are directed at the President’s exer-

cise of his constitutional, rather than statutory, authorities.

This Office has observed that “[t]he Constitution assigns a variety of

powers exclusively to the President” and “Congress may not intrude upon

the President’s exercise of [those] exclusive powers.” Letter for Andrew

Fois, Assistant Attorney General, Office of Legislative Affairs, from Ran-

dolph D. Moss, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Inspector General for the Executive Office of the President

at 3 (July 24, 1996) (advising that proposed legislation to establish an

inspector general for the EOP raised serious constitutional concerns). As

we explained, “where the President is exercising, or has exercised, exclu-

sive constitutional authority, Congress is wholly without authority to

impose [disclosure] requirements on the President or the President’s

advisors.” Id. Because Congress may not legislate with respect to the

President’s discharge of his exclusive constitutional functions, it similarly

may not seek information from White House staff concerning the deci-

sion-making process in connection with the President’s performance of

those functions in particular matters.

16

Congressional Oversight of the White House

Attorney General Janet Reno drew this line in advising President Clin-

ton with respect to a congressional subpoena seeking predecisional docu-

ments relating to a grant of clemency. The President’s clemency decision,

which is rooted in the pardon power, is a quintessential example of an

exclusive executive power. See Schick v. Reed, 419 U.S. 256, 266 (1974)

(the pardon power “flows from the Constitution . . . and . . . cannot be

modified, abridged, or diminished by the Congress”). Attorney General

Reno advised that Congress lacked the authority to subpoena the docu-

ments in question, because “[t]he granting of clemency pursuant to the

pardon power is unquestionably an exclusive province of the executive

branch,” and thus “[a] compelling argument can be made . . . that Con-

gress has no authority whatsoever to review a President’s clemency deci-

sion.” Clemency Decision, 23 Op. O.L.C. at 2. 7 Consistent with this

conclusion, she explained, “it appears that Congress’ oversight authority

does not extend to the process employed in connection with a particular

clemency decision, to the materials generated or the discussions that took

place as part of that process, or to the advice or views the President re-

ceived in connection with a clemency decision.” Id. at 3–4. 8

In 2007, Acting Attorney General Paul Clement cited the President’s

exclusive constitutional powers in advising President Bush regarding an

assertion of executive privilege with respect to internal White House

communications concerning the possible exercise of the President’s

7 As a formal matter, the President asserted executive privilege in declining to provide

the subpoenaed documents, which related to the deliberations over the President’s grant of

clemency to sixteen members of the FALN terrorist group. Letter for Dan Burton, Chair-

man, Committee on Government Reform, U.S. House of Representatives, from Cheryl

Mills, Deputy Counsel to the President at 1 (Sept. 16, 1999) (relying on the “vital public

interest in assuring that the President receives candid advice from his advisors”). But the

White House Counsel’s Office also raised the jurisdictional issue in objecting to the

subpoena, stating that “[p]ursuant to the Constitution and the separation of powers

doctrine, the President’s authority to grant clemency is not subject to legislative over-

sight.” Id.

8 This position also served as the basis for the Justice Department’s refusal the next

year to answer certain questions posed by the House Judiciary Committee regarding a

pending clemency petition. See Letter for Henry J. Hyde, Chairman, Committee on

Judiciary, U.S. House of Representatives, from Robert Raben, Assistant Attorney Gen-

eral, Office of Legislative Affairs at 2 (June 21, 2000) (“[B]ecause Congress cannot

legislate regarding the process by which the Department assists the President on clemency

matters, Congress’ oversight authority does not extend to that process.”).

17

45 Op. O.L.C. __ (Jan. 8, 2021)

exclusive authority to nominate and to dismiss U.S. Attorneys: “[T]here is

reason to question whether Congress has oversight authority to investigate

deliberations by White House officials concerning proposals to dismiss

and replace U.S. Attorneys, because such deliberations necessarily relate

to the potential exercise by the President of an authority assigned to him

alone.” Assertion of Executive Privilege Concerning the Dismissal and

Replacement of U.S. Attorneys, 31 Op. O.L.C. 1, 3 (2007). As Acting

Attorney General Clement explained:

The Senate has the authority to approve or reject the appointment of

officers whose appointment by law requires the advice and consent

of the Senate (which has been the case for U.S. Attorneys since the

founding of the Republic), but it is for the President to decide whom

to nominate to such positions and whether to remove such officers

once appointed. Though the President traditionally consults with

members of Congress about the selection of potential U.S. Attorney

nominees as a matter of courtesy or in an effort to secure their con-

firmation, that does not confer upon Congress authority to inquire in-

to the deliberations of the President with respect to the exercise of

his power to remove or nominate a U.S. Attorney.

Id.

This principle limiting the scope of Congress’s oversight authority is

consistent with the Supreme Court’s refusal to tolerate legislation that

intrudes on the President’s exclusive constitutional powers and duties.

Where the Constitution’s text commits a power to the President exclusive-

ly, courts “refuse[] to tolerate any intrusion by the Legislative Branch.”

Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J.,

concurring in the judgment, joined by Rehnquist, C.J., and O’Connor, J.);

see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165–66 (1803) (“By

the constitution of the United States, the President is invested with certain

important political powers, in the exercise of which he is to use his own

discretion, and is accountable only to his country in his political character,

and to his own conscience.”).

The President’s exclusive powers include the powers to pardon, to sign

or veto legislation, to nominate and appoint officers of the United States,

and to remove officers and other officials. See Schick, 419 U.S. at 266;

INS v. Chadha, 462 U.S. 919, 946–48, 957–59 (1983) (holding the legisla-

18

Congressional Oversight of the White House

tive veto an unconstitutional interference with President’s duties pursuant

to the Presentment Clause); Buckley v. Valeo, 424 U.S. 1, 138–39 (1976)

(per curiam) (“Congress’ power under [the Necessary and Proper] Clause

is inevitably bounded by the express language of [the Appointments

Clause],” and consequently Congress cannot provide for the appointment

of “‘Officers of the United States’” except through a procedure that

“comports with” the Appointments Clause); Myers, 272 U.S. at 161 (“The

authority of Congress given by the excepting clause to vest the appoint-

ment of such inferior officers in the heads of departments” does not “ena-

ble[] Congress to draw to itself, or to either branch of it, the power to

remove or the right to participate in the exercise of that power. To do this

would be . . . to infringe the constitutional principle of the separation of

governmental powers.”). Thus, while Congress may request information

pertaining to the broad range of matters about which it may legislate, that

authority does not extend to authorities exclusively vested in the Presi-

dent, including the work that the White House staff does in advising and

assisting the President in connection with the execution of those constitu-

tional authorities.

The President’s exclusive authorities also include his powers in the area

of diplomacy and national defense, although in many cases those powers

closely abut areas in which Congress may legislate. The Constitution

entrusts the President with the “‘vast share of responsibility for the con-

duct of our foreign relations.’” Am. Ins. Ass’n v. Garamendi, 539 U.S.

396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 610 (1952) (Frankfurter, J., concurring)). And that responsibil-

ity includes the “exclusive authority to conduct diplomacy on behalf of

the United States.” Congressionally Mandated Notice Period for With-

drawing from the Open Skies Treaty, 44 Op. O.L.C. __, at *11 (Sept. 22,

2020) (internal quotation marks omitted); see also Prohibition of Spend-

ing for Engagement of the Office of Science and Technology Policy with

China, 35 Op. O.L.C. 116, 121 (2011) (recognizing the President’s “ex-

clusive authority to determine the time, scope, and objectives of interna-

tional negotiations” (internal quotation marks omitted)). The President’s

authority as Commander in Chief and Chief Executive also includes broad

authority over the deployment and control of the military in protecting

American persons and interests abroad. See, e.g., Training of British

Flying Students in the United States, 40 Op. Att’y Gen. 58, 61–62 (1941)

19

45 Op. O.L.C. __ (Jan. 8, 2021)

(Jackson, Att’y Gen.); Placing of United States Armed Forces Under

United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 185

(1996) (“It is for the President alone, as Commander-in-Chief, to make

the choice of the particular personnel who are to exercise operational and

tactical command functions over the U.S. Armed Forces.”); Relation of

the President to the Executive Departments, 7 Op. Att’y Gen. 453, 465

(1855) (Cushing, Att’y Gen.) (because the President “alone” is the “su-

preme commander-in-chief,” Congress cannot “authorize or create any

military officer not subordinate to the President”). The Executive Branch

has consistently asserted the President’s exclusive authority in these areas,

and the Supreme Court has endorsed those principles. 9

At the same time, Congress also has overlapping authority to legislate

in matters touching upon foreign affairs and the national defense. Con-

gress “clearly possesses significant Article I powers in the area of foreign

affairs, including with respect to questions of war and neutrality, com-

merce and trade with other nations, foreign aid, and immigration.” Legis-

lation Prohibiting Spending for Delegations to U.N. Agencies Chaired by

Countries That Support International Terrorism, 33 Op. O.L.C. 221, 225–

26 (2009). Congress established and is responsible for funding the De-

partment of State and the Department of Defense—two departments that

the President relies upon in the discharge of his constitutional powers—

and Congress also has express legislative authority under Article I, Sec-

tion 8, with respect to foreign trade; the raising, supporting, and regula-

tion of the armed forces; and the declaration of war, among other powers.

Congress’s legislative authority in these areas provides a basis for seeking

information in connection with these areas, and such oversight requests

may sometimes reach the White House.

9 See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (“[J]udicial

precedent and historical practice teach that it is for the President alone to make the

specific decision of what foreign power he will recognize as legitimate[.]”); Harlow v.

Fitzgerald, 457 U.S. 800, 812 n.19 (1982) (conducting foreign relations and ensuring the

Nation’s defense are “central Presidential domains” (internal quotation marks omitted));

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring in judgment,

joined by Wayne, Swayne, and Miller, JJ.) (Congress has no authority to “interfere[] with

the command of the forces and the conduct of campaigns” because “[t]hat power and duty

belong to the President as commander-in-chief”); In re Hennen, 38 U.S. (13 Pet.) 230,

235 (1839) (“As the executive magistrate of the country, [the President] is the only

functionary intrusted with the foreign relations of the nation.”).

20

Congressional Oversight of the White House

We have previously advised on these areas of exclusive and overlap-

ping authority in connection with congressional oversight requests related

to the protection of classified information. The Supreme Court has ex-

plained that the President may “classify and control access to information

bearing on national security and . . . determine whether an individual is

sufficiently trustworthy to occupy a position in the Executive Branch that

will give that person access to such information[.]” Dep’t of the Navy v.

Egan, 484 U.S. 518, 527 (1988). This exclusive power primarily derives

from his constitutional authority as “‘Commander in Chief of the Army

and Navy of the United States,’” id. (quoting U.S. Const. art. II, § 2,

cl. 1), and “exists quite apart from any explicit congressional grant,” id.

Although Congress does not “entirely lack[] authority to legislate in a

manner that touches upon disclosure of classified information,” it cannot

intrude—through legislation or oversight—upon the President’s control

over national security information. Security Clearance Adjudications by

the DOJ Access Review Committee, 35 Op. O.L.C. 86, 95–96 (2011); see

The Department of Defense’s Authority to Conduct Background Investiga-

tions for Its Personnel, 42 Op. O.L.C. __, at *9 (Feb. 7, 2018) (“while

Congress is not entirely disabled from participating in the system for

protecting classified information, Congress may not impair the President’s

control over national security information”).

In summary, because Congress’s oversight authority extends only to

those subjects “on which legislation could be had,” McGrain, 273 U.S. at

177, the Executive Branch may properly review an oversight request

directed at the White House to evaluate whether the request is directed at

the discharge of an exclusive constitutional authority of the President or

instead concerns a subject about which Congress may legislate.

III. Constitutional Limits on

Congressional Oversight of the White House

Even when a congressional inquiry advances a legitimate legislative

purpose, the separation of powers imposes other constraints on oversight

of the White House. The accommodation process requires that “each

branch . . . take cognizance of an implicit constitutional mandate to seek

optimal accommodation through a realistic evaluation of the needs of the

conflicting branches in the particular fact situation.” United States v. Am.

21

45 Op. O.L.C. __ (Jan. 8, 2021)

Tel. & Tel. Co. (“AT&T ”), 567 F.2d 121, 127 (D.C. Cir. 1977). As dis-

cussed below, the President’s strong interests in the independence and

autonomy of his office, as well as the confidentiality of his communica-

tions, justify corresponding restrictions on oversight of the White House.

Congressional requests for information from the White House are con-

strained by “the Executive Branch’s interests in maintaining the autonomy

of [the] office [of the President] and safeguarding the confidentiality of its

communications.” Cheney, 542 U.S. at 385. In addition, oversight di-

rected at the White House implicates heightened executive branch confi-

dentiality interests, which are particularly strong with respect to White

House communications. Accordingly, when oversight involves the White

House, congressional committees and the White House must work to

respect these constraints while accommodating the committees’ legitimate

information needs. These considerations mean that oversight requests

directed to the White House are typically the exception, rather than the

norm. Congress should generally seek information from the departments

and agencies first before turning to the White House, and oversight re-

quests to the White House must be tailored to accommodate the Presi-

dent’s need for autonomy and confidentiality.

A. Separation of Powers Principles

The President is the head of a co-equal branch of government. Congress

and the President thus “have an ongoing institutional relationship as the

‘opposite and rival’ political branches established by the Constitution.”

Mazars, 140 S. Ct. at 2033–34 (quoting The Federalist No. 51, at 349

(James Madison)). Consequently, congressional requests for information

directed at the President and the White House are not “run-of-the-mill

legislative effort[s]” and “differ markedly from” congressional requests

directed toward others. Id. at 2034. The “significant separation of powers

issues” raised by such requests “necessarily inform[]” the scope of and

manner in which Congress may request such information. Id. at 2026,

2033. If Congress could freely demand the President’s information, it

would “‘exert an imperious controul’ over the Executive Branch and

aggrandize itself at the President’s expense, just as the Framers feared.”

Id. at 2034 (quoting The Federalist No. 71, at 484). In the same way that

the President must respect Congress’s institutional prerogatives, Congress

22

Congressional Oversight of the White House

too must conduct oversight mindful of the independence and autonomy of

the office of the President.

Although the Supreme Court’s opinion in Mazars discussed these prin-

ciples in the context of congressional requests for the President’s personal

information, these separation of powers concerns also apply to requests

for information from White House advisers, who assist the President “on a

daily basis in the formulation of executive policy and resolution of mat-

ters affecting the military, foreign affairs, and national security and other

aspects of his discharge of his constitutional responsibilities.” Testimonial

Immunity Before Congress of the Former Counsel to the President, 43 Op.

O.L.C. __, at *5 (May 20, 2019) (“Immunity of the Former Counsel ”)

(internal quotation marks omitted).

The Supreme Court recognized as much in Cheney, which addressed

the special consideration owed to the White House in connection with

demands for information made in a civil action. The Court held that the

Judicial Branch must treat civil discovery requests directed at the Presi-

dent’s senior advisers differently from discovery matters involving other

executive branch personnel:

This is not a routine discovery dispute. The discovery requests are

directed to the Vice President and other senior Government officials

who . . . give advice and make recommendations to the President.

The Executive Branch, at its highest level, is seeking the aid of the

courts to protect its constitutional prerogatives. . . . [S]pecial consid-

erations control when the Executive Branch’s interests in maintain-

ing the autonomy of its office and safeguarding the confidentiality of

its communications are implicated. This Court has held, on more

than one occasion, that “[t]he high respect that is owed to the office

of the Chief Executive . . . is a matter that should inform the conduct

of the entire proceeding, including the timing and scope of discov-

ery,” and that the Executive’s “constitutional responsibilities and

status [are] factors counseling judicial deference and restraint” in the

conduct of litigation against it.

542 U.S. at 385 (citations omitted). While the purposes of congressional

oversight and civil discovery are distinct, both involve requests from

outside the Executive Branch. Just as separation of powers principles

require the Judicial Branch to adjust the “timing and scope of discovery”

23

45 Op. O.L.C. __ (Jan. 8, 2021)

directed at presidential advisers in civil litigation, congressional commit-

tees and White House personnel also must tailor the timing and scope of

their oversight accommodations in ways that respect the President’s

interests in autonomy and confidentiality.

In Cheney, the Supreme Court reviewed the D.C. Circuit’s denial of the

Vice President’s petition for a writ of mandamus vacating certain discov-

ery orders issued by a district court. The plaintiffs had sued the Vice

President and others alleging that the President’s National Energy Policy

Development Group had not complied with the disclosure requirements of

the Federal Advisory Committee Act, 5 U.S.C. app. §§ 1–15. The district

court ordered the plaintiffs to “submit a proposed discovery plan” for the

court’s approval. Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Group,

219 F. Supp. 2d 20, 56 (D.D.C. 2002). Under the Federal Rules of Civil

Procedure, a litigant “may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.

26(b)(1). Pursuant to this broad standard governing civil discovery, the

plaintiffs in Cheney proposed a wide-ranging discovery plan, which called

for the production of all documents and information concerning commu-

nications between individual National Energy Policy Development Group

members outside the context of group meetings, between members and

agency personnel, and between members and non-governmental individu-

als. The plaintiffs tried to use discovery to uncover confidential infor-

mation concerning the deliberations of the President’s closest advisers.

The Government objected to the plan to the extent that it sought docu-

ments from the Vice President and White House officials and argued,

among other things, “that in order to protect the separation of powers, the

President should not be forced to consider the [executive] privilege ques-

tion in response to unnecessarily broad or otherwise improper discovery.”

See In re Cheney, 334 F.3d 1096, 1105 (D.C. Cir. 2003) (internal quota-

tion marks omitted).

The district court nonetheless approved the discovery plan and directed

that the Vice President and White House officials either “fully comply

with” the discovery requests, “file detailed and precise objections to

particular requests,” or “identify and explain their invocations of privilege

with particularity.” Id. at 1000 (internal quotation marks omitted). The

Vice President petitioned the D.C. Circuit for a writ of mandamus vacat-

ing the discovery orders on the ground that the broad requests violated the

24

Congressional Oversight of the White House

separation of powers by unduly interfering with the President’s constitu-

tional prerogatives, but the D.C. Circuit denied the petition. See id. at

1109.

The Supreme Court reversed and remanded for the D.C. Circuit to con-

sider whether the discovery orders “constituted an unwarranted impair-

ment of another branch in the performance of its constitutional duties.”

Cheney, 542 U.S. at 390. In so holding, the Court rejected the lower

courts’ view that executive branch interests could have been adequately

protected by “invoking executive privilege and filing objections to the

discovery orders with ‘detailed precision.’” Id. at 377 (quoting In re

Cheney, 334 F.3d at 1105). The Court explained that “special considera-

tions control” when White House staff and other high-level officials are

the subject of civil discovery requests, and that separation of powers

concerns might necessitate narrowing or denying requests for information

directed to such officials before there should arise any need to consider

invoking executive privilege. See id. at 385, 390. Because the information

“requests [were] directed to the Vice President and other senior Govern-

ment officials who served on the [Group] to give advice and make rec-

ommendations to the President,” the broad discovery orders threatened to

impinge on the Executive’s “interests in maintaining the autonomy of its

office and safeguarding the confidentiality of its communications.” Id. at

385. Therefore, the D.C. Circuit was obliged to consider whether allowing

the requests to go forward would be “an unwarranted impairment” of the

Executive Branch’s discharge of its constitutional responsibilities. Id. at

390.

The Court’s reasoning in Cheney, which instructs courts to consider the

President’s interests in autonomy and confidentiality when fashioning

orders authorizing civil discovery directed at the White House, applies

with at least equal force to congressional oversight requests for infor-

mation from the White House. Both congressional oversight and civil

litigation often concern wide-ranging information requests that involve

the production of documents and the taking of testimony. Just as civil

litigation against the “Vice President and other senior Government offi-

cials who . . . give advice and make recommendations to the President”

does not entail “a routine discovery dispute,” neither may congressional

oversight of the White House be viewed as comparable to routine over-

sight of executive branch agencies. Cf. Immunity of the Former Counsel,

25

45 Op. O.L.C. __ (Jan. 8, 2021)

43 Op. O.L.C. __, at *4 (“[T]he President’s immediate advisers are consti-

tutionally distinct from the heads of executive departments and agen-

cies.”). In both situations, far-reaching inquiries threaten presidential

autonomy and confidentiality. Thus, the separation of powers concerns

recognized in Cheney support significant limitations on the timing and

scope of congressional oversight inquiries directed to the White House.

If anything, the concerns underlying the Court’s decision in Cheney

apply with even greater force to congressional inquiries. Congress is the

President’s constitutional “rival” in a manner distinct from the Judiciary.

Mazars, 140 S. Ct. at 2033 (internal quotation marks omitted). When

Congress conducts oversight, a neutral decision-maker is not readily

available to appropriately balance each party’s interests. And unlike the

courts’ express authority to order discovery, Congress’s subpoena power

is an implied adjunct to its legislative powers that is justified as “an

essential and appropriate auxiliary to the legislative function.” Id. at 2031

(quoting McGrain, 273 U.S. 174); cf. Nat’l Fed’n of Indep. Bus. v. Sebe-

lius, 567 U.S. 519, 559 (2012) (opinion of Roberts, C.J.) (implied powers

under the Necessary and Proper Clause are “incidental” and cannot be

“great substantive and independent powers” (internal quotation marks

omitted)). A plaintiff in a civil action, moreover, may well have a greater

need for documents and other information than a congressional committee

conducting oversight. Congressional oversight gathers information so that

Congress may “exercise its legislative function advisedly and effectively,”

McGrain, 273 U.S. at 161; see also Mazars, 140 S. Ct. at 2031–32, while

the purpose of civil discovery is to disclose “the basic issues and facts” to

“the fullest practicable extent,” United States v. Procter & Gamble Co.,

356 U.S. 677, 682 (1958). As the D.C. Circuit thus has recognized, “legis-

lative judgments normally depend more on the predicted consequences of

proposed legislative actions and their political acceptability[] than on

precise reconstruction of past events.” Senate Select Comm. on Presiden-

tial Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en

banc). “[E]fforts to craft legislation involve predictive policy judgments

that are not hampered in quite the same way when every scrap of poten-

tially relevant evidence is not available [to Congress].” Mazars, 140 S. Ct.

at 2036 (alterations and internal quotation marks omitted).

Furthermore, because Congress may not conduct oversight of the Presi-

dent’s exclusive constitutional functions, legitimate congressional over-

26

Congressional Oversight of the White House

sight inquiries will almost always pertain to executive branch implemen-

tation of statutory programs. But the departments and agencies, not the

White House, principally administer such programs, and thus it is general-

ly unnecessary for congressional committees to request information

directly from the White House unless they are unable to obtain the infor-

mation from agencies. As Mazars determined with respect to the Presi-

dent’s personal information, to avoid unnecessary confrontation between

the branches, “Congress may not rely on the President’s information if

other sources could reasonably provide Congress the information it

needs.” Id. at 2035–36. That reasoning also applies to congressional

requests for White House information. Because congressional oversight

needs generally may be satisfied through requests to the departments and

agencies, requests for information about programs administered outside

the White House should be directed there in the first instance.

Mazars and Cheney are the latest in a line of judicial precedent recog-

nizing the separation of powers concerns underlying litigation or related

requests directed at the President. But the Supreme Court has long recog-

nized that safeguarding presidential autonomy and confidentiality is

critical to honoring the separation of powers. See Cheney, 542 U.S. at

385. This principle was first articulated in United States v. Burr, where

Chief Justice John Marshall, sitting at trial as a Circuit Justice, stated that

“[i]n no case of this kind would a court be required to proceed against the

president as against an ordinary individual.” 25 F. Cas. 187, 192 (C.C. Va.

1807) (No. 14,694). In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the

Court held that a sitting or former President is absolutely immune from

civil actions for damages arising from his official acts. Underlying this

bright-line rule is the rationale that “[b]ecause of the singular importance

of the President’s duties, diversion of his energies . . . would raise unique

risks to the effective functioning of government.” Id. at 751. 10 The Presi-

10 The Supreme Court has held that presidential aides are generally treated differently

from the President for purposes of immunity in civil litigation, receiving qualified im-

munity rather than absolute immunity. Harlow, 457 U.S. at 809. But see id. at 812 & n.19

(acknowledging that “[f ]or aides entrusted with discretionary authority in such sensitive

areas as national security or foreign policy, absolute immunity might well be justified to

protect the unhesitating performance of functions vital to the national interest”). Yet that

distinction is entirely consistent with Cheney’s holding that “special considerations” apply

to civil discovery requests directed to White House officials and others who “give advice

27

45 Op. O.L.C. __ (Jan. 8, 2021)

dent’s energies may be inappropriately diverted by congressional over-

sight just as they may be by private litigation. See Immunity of the Former

Counsel, 43 Op. O.L.C. __, at *5 (explaining that permitting congression-

al committees to compel the President’s immediate advisers to testify

would allow the committees 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” and would force

the advisers “to divert time and attention from their duties to the Presi-

dent” (internal quotation marks omitted)).

In the oversight context, the President’s interest in the White House’s

autonomy may be compromised not only by congressional inquiries that

distract personnel and drain critical resources, but also by the potential

“chilling effect” such demands would have on the interactions between

the President and his advisers. See Testimonial Immunity Before Congress

of the Assistant to the President and Senior Counselor to the President,

43 Op. O.L.C. __, at *2 (July 12, 2019) (“Congressional questioning of

the President’s senior advisers would . . . undermine the independence and

candor of executive branch deliberations.”). Intrusive congressional over-

sight of the White House’s interaction with departments and agencies may

cause White House staff members to conform their information-gathering

and policy-formulation processes to the demands of Congress instead of

the needs of the President. Yet the President needs his staff to provide him

with frank and candid judgments to “accomplish[] [his] constitutionally

assigned functions.” Nixon v. Adm’r of Gen. Servs., 433 U.S. at 443.

There is little doubt that intrusive oversight inquiries could chill and

otherwise undermine these kinds of White House staff activities. See

Scope of Congressional Oversight, 9 Op. O.L.C. at 62 (“Congress’ power

of inquiry must not be permitted to negate the President’s constitutional

and make recommendations to the President.” 542 U.S. at 385. As we have explained in

declining to apply Harlow to narrow the traditional constraints governing the congres-

sional testimony of senior presidential advisers, “the prospect of compelled congressional

testimony raises separation of powers concerns that are not present in a civil damages

lawsuit brought by a private party.” Immunity of the Former Counsel, 43 Op. O.L.C. __,

at *13. Compelled congressional testimony “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 a judicially monitored [proceeding]

does not.” Id. (internal quotation marks omitted).

28

Congressional Oversight of the White House

responsibility for managing and controlling affairs committed to the

Executive Branch.”).

Closely related to the President’s interest in securing the White House’s

autonomy is his interest in “safeguarding the confidentiality of its com-

munications.” Cheney, 542 U.S. at 385. The Supreme Court has made

clear that the President’s interest in the confidentiality of his decision-

making is a central component of the constitutional separation of powers.

In United States v. Nixon, the Court stressed that “[a] President and those

who assist him 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.” 418 U.S. 683, 708 (1974).

Although Nixon concerned a judicial demand for documents protected by

executive privilege, this Office has long expressed the view that “[the]

reasons for the constitutional privilege have at least as much force when it

is Congress, instead of a court, that is seeking information.” Congression-

al Requests, 13 Op. O.L.C. at 156. Indeed, “the prospect that predeci-

sional deliberative communications will be disclosed to Congress is, if

anything, more likely to chill internal debate among executive branch

advisers than the possibility of disclosure to the judicial branch.” Memo-

randum for Janet Reno, Attorney General, from Walter Dellinger, Assis-

tant Attorney General, Office of Legal Counsel, Re: Congressional De-

mands to Interview Prosecutors and Review Deliberative Documents in

Closed Cases at 14–15 (Nov. 23, 1993). 11 Because many White House

11 As this Office has explained more fully:

When the Supreme Court held that the need for presidential communications in the

criminal trial of President Nixon’s close aides outweighed the constitutional privi-

lege, an important premise of its decision was that it did not believe that advisers

will be moved to temper the candor of their remarks by the infrequent occasions of

disclosure because of the possibility that such conversations will be called for in the

context of a criminal prosecution. By contrast, congressional requests for executive

branch deliberative information are anything but infrequent. Moreover, compared

to a criminal prosecution, a congressional investigation is usually sweeping; its is-

sues are seldom narrowly defined, and the inquiry is not restricted by the rules of

evidence. Finally, when Congress is investigating, it is by its own account often in

an adversarial position to the executive branch and initiating action to override

judgments made by the executive branch. This increases the likelihood that candid

advice from executive branch advisers will be taken out of context or misconstrued.

Congressional Requests, 13 Op. O.L.C. at 156–57 (internal quotation marks and citations

omitted).

29

45 Op. O.L.C. __ (Jan. 8, 2021)

staff members enjoy extensive access to the President, play important

roles in developing presidential policy, and often serve as the President’s

alter ego, the President’s interest in the confidentiality of White House

activities must be afforded considerable weight in assessing the legitima-

cy of an exercise of Congress’s oversight functions.

B. Executive Privilege and White House Information

The heightened executive privilege interests that apply to White House

communications provide an additional basis for distinguishing oversight

inquiries directed at the White House from oversight of departments and

agencies. Presidents have invoked executive privilege since the earliest

days of the Republic, and the Supreme Court has recognized the privilege

and held it to be an implied power under the Constitution. See Nixon, 418

U.S. at 705, 708; see also id. at 711 (“Nowhere in the Constitution . . . is

there any explicit reference to a privilege of confidentiality, yet to the

extent this interest relates to the effective discharge of a President’s

powers, it is constitutionally based.”); Congressional Requests, 13 Op.

O.L.C. at 154 (explaining that the existence of executive privilege is a

“necessary corollary of the executive function vested in the President by

Article II of the Constitution”). The Court has described the privilege as

“deriv[ing] from the supremacy of each branch within its own assigned

area of constitutional duties,” “fundamental to the operation of Govern-

ment,” “and inextricably rooted in the separation of powers under the

Constitution.” Nixon, 418 U.S. at 705, 708. The privilege “safeguards the

public interest in candid, confidential deliberations within the Executive

Branch,” and, as a result, “information subject to executive privilege

deserves the greatest protection consistent with the fair administration of

justice.” Mazars, 140 S. Ct. at 2032 (internal quotation marks omitted).

There are at least five well-recognized, and sometimes overlapping,

components of executive privilege: national security and foreign affairs,

law enforcement, deliberative process, attorney-client communications

and attorney work product, and presidential communications. See At-

tempted Exclusion of Agency Counsel from Congressional Depositions of

Agency Employees, 43 Op. O.L.C. __, at *8 & n.2 (May 23, 2019) (“Ex-

clusion of Agency Counsel ”); Assertion of Executive Privilege Concerning

the Special Counsel’s Interviews of the Vice President and Senior White

House Staff, 32 Op. O.L.C. 7, 8 (2008); Executive Privilege: The With-

30

Congressional Oversight of the White House

holding of Information by the Executive: Hearing on S. 1125 Before the

Subcomm. on Separation of Powers of the S. Comm. on the Judiciary,

92nd Cong. 420 (1971) (statement of William Rehnquist, Assistant Attor-

ney General, Office of Legal Counsel). Generally speaking, the national

security and foreign affairs component provides absolute protection for

materials the release of which would jeopardize sensitive diplomatic,

national security, or military matters, including classified information and

diplomatic communications. 12 Similarly, the law enforcement component

of the privilege gives the Executive Branch a near-absolute right to with-

hold from Congress information that would compromise ongoing law

enforcement activities. 13 Both of these components of executive privilege

are deeply rooted in the Constitution and the Nation’s history.

12 See, e.g., Egan, 484 U.S. at 527 (explaining that the President’s “authority to classi-

fy and control access to information bearing on national security . . . flows primarily from

th[e] constitutional investment of [the Commander in Chief] power in the President”);

United States v. Reynolds, 345 U.S. 1, 10–11 (1953) (recognizing the national security

component of the privilege in civil litigation involving military equipment); In re United

States, 872 F.2d 472, 476 (D.C. Cir. 1989) (explaining that the privilege provides absolute

protection for information the release of which would impair the Nation’s defense,

disclose intelligence activities, or disrupt diplomatic relations with foreign governments);

Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (explaining that “matters the revela-

tion of which reasonably could be seen as a threat to the military or diplomatic interests of

the nation . . . are absolutely privileged from disclosure in the courts”); Whistleblower

Protections for Classified Disclosures, 22 Op. O.L.C. 92, 97 (1998) (“[S]ince the Wash-

ington Administration, Presidents and their senior advisers have repeatedly concluded that

our constitutional system grants the executive branch authority to control the disposition

of secret information.”); Memorandum for C. Boyden Gray, Counsel to the President,

from J. Michael Luttig, Principal Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Congressional Access to Presidential Communications at 2–11 (Dec. 21,

1989) (explaining the absolute scope of the national security component in the context of

congressional investigations); Memorandum from William H. Rehnquist, Assistant

Attorney General, Office of Legal Counsel, and John R. Stevenson, Legal Adviser,

Department of State, Re: The President’s Executive Privilege to Withhold Foreign Policy

and National Security Information at 7 (Dec. 8, 1969) (“[N]ational security and foreign

relations considerations have been considered the strongest possible basis upon which to

invoke the privilege of the executive.”); see also Nixon, 418 U.S. at 706 (recognizing that

executive privilege may be absolute “to protect military, diplomatic, or sensitive national

security secrets”).

13 See Temporary Certification Under the President John F. Kennedy Assassination

Records Collection Act of 1992, 41 Op. O.L.C. __ (Oct. 26, 2017); Investigative Authority

of the General Accounting Office, 12 Op. O.L.C. 171, 177 (1988) (“With respect to open

31

45 Op. O.L.C. __ (Jan. 8, 2021)

Congressional inquiries to the White House more often implicate the

deliberative process, the attorney-client communications and attorney

work product, and particularly the presidential communications compo-

nents of executive privilege. These components are also deeply rooted,

and they protect from disclosure internal communications and information

concerning presidential and other executive branch decision-making.

They are based on the principle that the effective operation of the Execu-

tive Branch depends on shielding deliberative communications and advice

from disclosure. See Confidentiality of the Attorney General’s Communi-

cations in Counseling the President, 6 Op. O.L.C. 481, 484–97 (1982)

(“Attorney General’s Communications”).

The deliberative process component of executive privilege “safeguards

the public interest in candid, confidential deliberations within the Execu-

tive Branch” and protects all executive branch documents that reflect

advisory opinions, recommendations, and other deliberative communica-

tions generated during governmental decision-making. Mazars, 140 S. Ct.

at 2032; see In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); see

also Congressional Requests, 13 Op. O.L.C. at 156–57 & n.3 (explaining

the applicability of this component in the context of congressional re-

quests for information). The deliberative process component is premised

on the fact that disclosing the “communications and the ingredients of the

decisionmaking process” would inevitably cause “injury to the quality of

agency decisions” by inhibiting “‘frank discussion of legal or policy

law enforcement files, it has been the policy of the executive branch throughout our

Nation’s history to protect these files from any breach of confidentiality, except in

extraordinary circumstances.”); Independent Counsel Act Requests, 10 Op. O.L.C. at 75–

78 (explaining the Executive Branch’s authority to withhold open and closed law en-

forcement files from Congress); Prosecution for Contempt of Congress of an Executive

Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 117

(1984) (“Since the early part of the 19th century, Presidents have steadfastly protected the

confidentiality and integrity of investigative files from untimely, inappropriate, or uncon-

trollable access by the other branches, particularly the legislature.”); Assertion of Execu-

tive Privilege in Response to Congressional Demands for Law Enforcement Files, 6 Op.

O.L.C. 31, 32–33 (1982) (same concerning law enforcement files of the Environmental

Protection Agency); Position of the Executive Department Regarding Investigative

Reports, 40 Op. Att’y Gen. 45, 47 (1941) (same concerning investigative files of the

Federal Bureau of Investigation).

32

Congressional Oversight of the White House

matters.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 151 (1975)

(citation omitted). As the Supreme Court explained in Nixon:

[There is a] valid need for protection of communications between

high Government officials and those who advise and assist them in

the performance of their manifold duties; the importance of this con-

fidentiality is too plain to require further discussion. Human experi-

ence teaches that those who expect public dissemination of their re-

marks may well temper candor with a concern for appearances and

for their own interests to the detriment of the decisionmaking pro-

cess.

418 U.S. at 705; see also Dep’t of the Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1, 8–9 (2001) (explaining that the deliberative

process component “rests on the obvious realization that officials will not

communicate candidly among themselves if each remark is a potential

item of discovery and front page news, and its object is to enhance the

quality of agency decisions, by protecting open and frank discussion

among those who make them” (internal quotation marks and citation

omitted)). The deliberative process component of executive privilege

applies especially strongly when the deliberations in question are ongo-

ing. See Publication of a Report to the President on the Effect of Automo-

bile and Automobile-Part Imports on the National Security, 44 Op. O.L.C.

__, at *10–11 (Jan. 17, 2020) (“Publication of Report on Imports”). But

the deliberative process component has certain limits: It protects predeci-

sional and deliberative materials and typically does not “shield documents

that simply state or explain a decision the government has already made

or protect material that is purely factual.” Sealed Case, 121 F.3d at 737.

Agencies may withhold factual information only to the extent it is “so

inextricably intertwined with the deliberative sections of documents that

its disclosure would inevitably reveal the government’s deliberations.” Id.

The attorney-client communications and attorney work product compo-

nent of executive privilege protects executive branch communications and

documents that involve legal analysis, legal advice, and other attorney

communications or work product. See Assertion of Executive Privilege

Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 2, 3

(1996) (Reno, Att’y Gen.) (recognizing that “[e]xecutive privilege ap-

plies” to certain documents “because of their deliberative nature, and

33

45 Op. O.L.C. __ (Jan. 8, 2021)

because they fall within the scope of the attorney-client privilege and the

work-product doctrine”). Often, such communications will be protected

by the deliberative process component in addition to the attorney-client

and attorney work product component. Yet “‘the reasons for the constitu-

tional privilege against the compelled disclosure of executive branch

deliberations have special force when legal advice is involved,’” because

“‘legal matters are likely to be among those on which high government

officials most need, and should be encouraged to seek, objective, expert

advice.’” Attorney General’s Communications, 6 Op. O.L.C. at 490 n.17

(citation omitted); see also Constitutionality of the OLC Reporting Act of

2008, 32 Op. O.L.C. 14, 17 (2008) (Mukasey, Att’y Gen.) (“[I]f executive

branch officials are to execute their constitutional and statutory responsi-

bilities, they must have access to candid and confidential legal advice and

assistance.”).

The presidential communications component of executive privilege,

which is the most salient component for White House purposes, protects

communications made in connection with presidential decision-making.

See Nixon, 418 U.S. at 708 (explaining importance of presidential com-

munications privilege in government operations); Sealed Case, 121 F.3d

at 746 (explaining that the “presidential [communications] privilege

affords greater protection against disclosure” than the deliberative pro-

cess privilege); Memorandum for the Attorney General from John M.

Harmon, Assistant Attorney General, Office of Legal Counsel, Re: The

Constitutional Privilege for Executive Branch Deliberations: The Dis-

pute with a House Subcommittee over Documents Concerning the Gaso-

line Conservation Fee at 13 (Jan. 13, 1981) (“Executive Branch Deliber-

ations”). Although the presidential communications component applies

only to presidential decision-making, it is broader than the deliberative

process component in terms of the types of communications that are

protected. All presidential communications are “presumptively privi-

leged” and protected from disclosure, including post-decisional exchang-

es and documents conveying purely factual information. Nixon, 418 U.S.

at 708, 713–14 (explaining that a presumptive privilege applies to the

President’s “conversations and correspondence”); see also Sealed Case,

121 F.3d at 745 (“[U]nlike the deliberative process privilege, the presi-

dential communications privilege applies to documents in their entirety,

and covers final and post-decisional materials as well as pre-deliberative

34

Congressional Oversight of the White House

ones.”). In addition, this component of executive privilege covers com-

munications between the President and agencies concerning presidential

decision-making, including communications concerning the exercise of

statutory authority. See Publication of Report on Imports, 44 Op. O.L.C.

__, at *7–9.

The presidential communications component of executive privilege is

not limited to exchanges directly involving the President. The Supreme

Court emphasized in Nixon that the “President and those who assist him

must be free to explore alternatives in the process of shaping policies and

making decisions,” 418 U.S. at 708 (emphasis added), and explicitly

described the privilege as protecting communications within the Presi-

dent’s “office,” id. at 712–13. We have consistently recognized that for

the President to obtain full, frank, and complete advice, the presidential

communications component must apply to deliberations among the Presi-

dent’s advisers and their staffs. See, e.g., Attorney General’s Communica-

tions, 6 Op. O.L.C. at 485–86 & n.11 (explaining that the presidential

communications privilege protects the presidential “decisionmaking

process” and, therefore, can apply to the work of presidential advisers).

The D.C. Circuit agreed in 1997, when it held that “communications

made by presidential advisers in the course of preparing advice for the

President come under the presidential communications privilege, even

when these communications are not made directly to the President.”

Sealed Case, 121 F.3d at 751–52. In reaching this conclusion, the court,

echoing the Supreme Court’s analysis in Nixon, warned that “[i]f presi-

dential advisers must assume they will be held to account publicly for all

approaches that were advanced, considered, but ultimately rejected, they

will almost inevitably be inclined to avoid serious consideration of novel

or controversial approaches to presidential problems.” Id. at 750. Exclud-

ing presidential advisers and their staffs from the presidential communica-

tions component would hinder the President’s “access to honest and

informed advice” and limit his “ability to explore possible policy op-

tions.” Id. at 751. A narrower privilege would “impede . . . the presiden-

cy,” id., and diminish the quality of presidential decisions:

Presidential advisers do not explore alternatives only in conversa-

tions with the President or pull their final advice to him out of thin

air—if they do, their advice is not likely to be worth much. Rather,

35

45 Op. O.L.C. __ (Jan. 8, 2021)

the most valuable advisers will investigate the factual context of a

problem in detail, obtain input from all others with significant exper-

tise in the area, and perform detailed analyses of several different

policy options before coming to closure on a recommendation for the

Chief Executive. The President himself must make decisions relying

substantially, if not entirely, on the information and analysis sup-

plied by advisers.

Id. at 750. 14

Against this backdrop, communications within the White House and

between White House staff and other EOP components that concern

possible presidential decision-making will normally fall under the presi-

dential communications component of executive privilege, and not just

the deliberative process or attorney-client communications and attorney

work product components that apply to all government agencies and that

are most commonly implicated when congressional committees make

oversight requests of executive agencies. See Executive Branch Delibera-

tions at 12 (concluding that “‘presidential’ communications . . . presuma-

bly [include] discussions among the President’s aides and officials in the

Executive Office of the President ” (emphasis added)). Consequently, a

congressional request for internal White House communications and intra-

EOP communications will frequently implicate the presidential communi-

cations component of executive privilege. As a result, oversight directed

at the White House will typically involve privilege interests that are, on

the whole, considerably greater than those arising solely in the agency

context, where other components are more commonly implicated.

14 In Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004), the

D.C. Circuit in dictum construed Sealed Case’s use of the phrase “White House adviser”

when describing the scope of the presidential communications privilege as restricting the

privilege to the President’s “immediate advisers in the Office of the President” (a compo-

nent of the EOP also called the White House Office). Id. at 1123; see id. at 1109 n.1,

1116–17, 1123–24. This assumption misinterprets Sealed Case. Its explicit holding that

communications by “presidential advisers” and “their staff ” made “in the course of

preparing advice for the President come under the presidential communications privilege”

indicates that the privilege must encompass advisers in EOP entities outside the Office of

the President whose primary function is to advise and assist the President. See 121 F.3d at

751–52.

36

Congressional Oversight of the White House

C. The Accommodation Process

for Oversight of the White House

Given the President’s interests in autonomy and confidentiality, the ac-

commodation process will often lead to a different balance when applied

to the White House as compared to the departments and agencies. It is

long-standing executive branch policy that upon receipt of an authorized

oversight request that is in furtherance of a legitimate legislative purpose,

departments and agencies should “comply with Congressional requests for

information to the fullest extent consistent with the constitutional and

statutory obligations of the Executive Branch.” Memorandum for Heads

of Executive Departments and Agencies from Ronald Reagan, Re: Proce-

dures Governing Responses to Congressional Requests for Information

at 1 (Nov. 4, 1982) (“Reagan Memorandum”). The manner of that com-

pliance is determined by the operation of the accommodation process

mandated by the Constitution, recognized by the Judicial Branch, and

practiced by the Executive and Legislative Branches. “Historically, good

faith negotiations between Congress and the Executive Branch have

minimized the need for invoking executive privilege,” and “this tradition

of accommodation” has remained “the primary means of resolving con-

flicts between the Branches.” Id.

The Supreme Court has also recognized that disputes over congression-

al demands for executive documents ordinarily “have been hashed out in

the ‘hurly-burly, the give-and-take of the political process between the

legislative and the executive.’” Mazars, 140 S. Ct. at 2029 (quoting Exec-

utive Privilege—Secrecy in Government: Hearings on S. 2170, S. 2378,

and S. 2420 Before the Subcomm. on Intergovernmental Relations of the

S. Comm. on Gov’t Operations, 94th Cong. 87 (1975) (statement of Anto-

nin Scalia, Assistant Attorney General, Office of Legal Counsel)). Since

the Washington Administration, the Executive Branch has resisted con-

gressional information demands that were overly burdensome or threat-

ened to impair “the public good.” Id. at 2029–30 (internal quotation marks

omitted). Executive branch resistance, in turn, has often been met by

congressional pressure, which was then followed by subsequent negotia-

tions between the branches. In most instances, Congress and the Execu-

tive Branch have reached a compromise in which Congress might, for

example, narrow the scope of its request or better articulate its needs, and

37

45 Op. O.L.C. __ (Jan. 8, 2021)

the Executive Branch might, for example, supply a subset of the requested

documents, provide summaries of the information requested, or permit in

camera review of particular documents. Id. This long-standing “tradition

of negotiation and compromise” stands at the heart of the accommodation

process. Id. at 2031.

In AT&T, the D.C. Circuit discussed the constitutional foundations for

the accommodation process. 567 F.2d 121. There, the Department of

Justice sought to enjoin AT&T from complying with a congressional

subpoena that the Executive Branch believed implicated highly classified

information, the disclosure of which would be detrimental to national

security. The D.C. Circuit declined to decide the case on the merits and

instead mandated a “procedure giv[ing] promise of satisfying the substan-

tial needs of both [branches].” Id. at 123. The court stated:

The framers . . . expect[ed] that where conflicts in scope of authority

arose between the coordinate branches, a spirit of dynamic compro-

mise would promote resolution of the dispute in the manner most

likely to result in efficient and effective functioning of our govern-

mental system. . . . [E]ach branch should take cognizance of an im-

plicit constitutional mandate to seek optimal accommodation through

a realistic evaluation of the needs of the conflicting branches in the

particular fact situation.

Id. at 127. “[T]he resolution of conflict between the coordinate branches

in these situations must be regarded as an opportunity for a constructive

modus vivendi, which positively promotes the functioning of our system.”

Id. at 130.

In light of this history and precedent, both the Executive Branch and

Congress have recognized their respective constitutional obligations to

seek accommodation through good faith negotiations over their respective

interests. See, e.g., Elizabeth B. Bazan & Morton Rosenberg, Cong.

Research Serv., Congressional Oversight of Judges and Justices 10 (May

31, 2005) (“Although the accommodation process between Congress and

the Executive Branch is conducted in a highly political atmosphere, the

arguments made by each side are usually grounded in legal doctrine and

rely heavily on their interpretations and past experiences. At times, the

Executive Branch is able to persuade Congress that a particular request is

insufficiently weighty[.]”); Congressional Requests, 13 Op. O.L.C. at 159

38

Congressional Oversight of the White House

(“The process of accommodation requires that each branch explain to the

other why it believes its needs to be legitimate. Without such an explana-

tion, it may be difficult or impossible to assess the needs of one branch

and relate them to those of the other.”); Assertion of Executive Privilege

in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981)

(Smith, Att’y Gen.) (“The accommodation required is not simply an

exchange of concessions or a test of political strength. It is an obligation

of each branch to make a principled effort to acknowledge, and if possible

to meet, the legitimate needs of the other branch.”). The accommodation

process has usually proved successful in reconciling congressional infor-

mational needs with the Executive Branch’s interests, and so congression-

al committees rarely pursue citing executive branch officials for contempt

of Congress to enforce their document and testimonial subpoenas, see

infra Part IV.A, and Presidents rarely invoke executive privilege.

Because the accommodation process is premised upon working out

each branch’s needs and interests, the outcome of that process may differ

when it comes to the White House. As explained in Part I, the White

House functions separately from the departments and agencies and histor-

ically has been “a combined administrative, advisory, planning, and

policy-formulating office serving the President in an intimate, indispensa-

ble capacity.” Clinton L. Rossiter, The Constitutional Significance of the

Executive Office of the President, 43 Am. Pol. Sci. Rev. 1206, 1215

(1949). To a much greater degree than other parts of the Executive

Branch, the White House serves to advise and assist the President, par-

ticularly in the discharge of his constitutional functions. Although there

may be occasions when a congressional committee can appropriately seek

information from the White House, particularly where the President is

charged with the discharge of statutory functions, the separation of pow-

ers principles discussed above impose significant constraints on White

House oversight, as reflected in long-standing practice. 15 The timing and

15 See, e.g., Letter for John W. Byrnes, House of Representatives, from Joseph Camp-

bell, Comptroller General of the United States at 2 (Sept. 18, 1962) (“[W]e are certain you

understand that [Comptroller General] investigations of White House activities are not

subject to the same techniques as those conducted in the various departments and agen-

cies. Files of the White House Office, with the exception of financial records, are normal-

ly not available to us. Also, White House personnel are not always available for inter-

view. This has been the situation in all recent Administrations.”); see also Cong. Research

39

45 Op. O.L.C. __ (Jan. 8, 2021)

scope of inquiries directed to the White House, and the accommodations

offered by the White House, must be sensitive to the President’s interests

in autonomy and confidentiality, as well as the heightened confidentiality

interests in White House communications. They also must reflect the

different balance of needs and interests that applies to oversight of the

White House: Congressional needs are often more attenuated (because it

is the departments and agencies that administer most statutory programs),

and the Executive Branch’s institutional interests are greater (based on the

President’s need for autonomy and the heightened confidentiality inter-

ests).

As with all oversight requests, the White House may properly insist

that a congressional committee articulate a legitimate legislative purpose

for inquiries directed at the White House. See Barenblatt, 360 U.S. at

111–12; Watkins, 354 U.S. at 187. The committee’s legislative purpose

should be “carefully assess[ed],” whether or not the information sought is

likely to be protected by executive privilege. Mazars, 140 S. Ct. at 2035.

The White House should independently “examine the objective fit be-

tween that purpose and the information sought, as well as any other evi-

dence that may bear upon the Committee’s true objective.” President’s

Tax Returns, 43 Op. O.L.C. __, at *17. If the legitimate purpose underly-

ing the oversight request appears unclear, White House staff may request

that the committee clarify that purpose. See id. at *26 (“The separation of

powers would be dramatically impaired were the Executive required to

. . . accept[] the legitimacy of any reason proffered by Congress, even in

the face of clear evidence to the contrary.”). The White House must take

care to ensure that the requests involve a legitimate legislative purpose

Serv., RL31351, Presidential Advisers’ Testimony Before Congressional Committees: An

Overview 21 (Dec. 15, 2014) (“Given the tradition of comity between the executive and

legislative branches, Congress often elects not to request the appearance of presidential

aides. When Congress has requested the appearance of such aides, Presidents and their

aides have at times resisted, asserting the separation of powers doctrine and/or executive

privilege.” (footnote omitted)); Louis Fisher, White House Aides Testifying Before Con-

gress, 27 Presidential Stud. Q. 139, 151 (1997) (“The White House is usually insulated

from congressional inquiry because of a long-standing comity that exists between Con-

gress and the presidency. By and large, each branch concedes a certain amount of auton-

omy to the other. Only in clear cases of abuse and obvious bad faith will Congress insist

that White House aides appear and give an account of their activities.”).

40

Congressional Oversight of the White House

and do not intrude upon the exclusive constitutional prerogatives of the

President.

In addition, because any congressional inquiry must respect the “auton-

omy” of the President’s close advisers and “the confidentiality of [their]

communications,” Cheney, 542 U.S. at 385, a congressional committee

seeking information about a statutory program should generally be di-

rected first to the agency that administers the program in question. See

Mazars, 140 S. Ct. at 2035–36 (explaining that “[o]ccasion[s] for consti-

tutional confrontation between the two branches should be avoided when-

ever possible” and that “Congress may not rely on the President’s infor-

mation if other sources could reasonably provide Congress the

information it needs” (internal quotation marks omitted)). This practice of

exhaustion is rooted in separation of powers principles and the practical

realities of White House operations. It is crucial to the functioning of the

Executive Branch that White House staff members be able to perform

their functions independently and effectively in service of the President.

Congressional efforts to conduct extensive and time-consuming oversight

of the White House could seriously interfere with that mission. When

information Congress seeks is available from an agency, there is no rea-

son to subject the President’s advisers to potentially burdensome over-

sight requests, especially because aspects of their work are far more likely

to implicate the presidential communications component of executive

privilege. 16

Accordingly, when faced with a congressional request for information

that reasonably could be acquired from a department or agency, White

House staff often advise the relevant committee that it should pursue its

request there. Only if the committee has exhausted the possibility of

obtaining the necessary information elsewhere, and has determined that

the necessary information may be obtained only from the White House,

should the committee direct its inquiry to the White House.

16 Courts have credited these concerns in a series of cases discussing FOIA requests.

The D.C. Circuit, for instance, has declined to allow FOIA requests for the President’s

White House visitor logs—even though the logs were held by the Secret Service, which is

housed within the Department of Homeland Security, rather than the White House—

because such requests “could render FOIA a potentially serious congressional intrusion

into the conduct of the President’s daily operations.” Judicial Watch, Inc. v. U.S. Secret

Serv., 726 F.3d at 226.

41

45 Op. O.L.C. __ (Jan. 8, 2021)

When a committee’s request to the White House concerns statutory

functions, is within the committee’s delegated oversight authority, and

rests on a legitimate legislative purpose—and after the committee has

attempted to seek such information from any relevant agencies—then the

White House should consider how to accommodate the committee’s needs

in a manner consistent with the interests of the Executive Branch. See

AT&T, 567 F.2d at 127. An important feature of the accommodation

process is the dialogue that takes place between the committee and the

White House to ensure that information requests are not “unnecessarily

broad.” Cheney, 542 U.S. at 390. Given the separation of powers princi-

ples at stake, these negotiations can help “narrow the scope of possible

conflict between the branches,” and ensure that a request is “no broader

than reasonably necessary to support Congress’s legislative objective.”

Mazars, 140 S. Ct. at 2036.

The accommodation process has several rules of the road. First, the

White House may properly demand that Congress’s request be reasonably

specific. “The specificity of [a committee’s] request ‘serves as an im-

portant safeguard against unnecessary intrusion into the operation of the

Office of the President.’” Id. (quoting Cheney, 542 U.S. at 387). A com-

mittee should clearly explain the nature and scope of its request and

provide the White House with an opportunity to seek further explanation

if the White House believes that the request is vague or otherwise ambig-

uous. Second, the “burdens imposed by a congressional [request] should

be carefully scrutinized, for they stem from a rival political branch that

has an ongoing relationship with the President and incentives to use

subpoenas [or other requests] for institutional advantage.” Id. Finally,

given the relatively small staff and resources available in the White

House, the committee must afford the White House sufficient time to

respond to its inquiry and flexibility in its manner and mode of response.

In light of these considerations, the White House typically seeks to ac-

commodate congressional requests by providing written responses or oral

briefings on relevant activities or policies, supplemented sometimes by

the production of specific non-privileged documents. The White House

does not ordinarily undertake the burden of reviewing and producing

e-mails and other documents, which generally will consist primarily of

deliberative communications within the White House or between the

42

Congressional Oversight of the White House

White House and other parts of the Executive Branch. Searching through

and processing the thousands of presumptively privileged e-mails likely to

be responsive to a single request undoubtedly would divert the relatively

small White House staff from its important work for the President. Fur-

ther, the practice of providing written responses and oral briefings instead

of e-mails and other internal communications helps preserve the Presi-

dent’s ability to obtain full and frank advice from White House staff. This

is critical to avoid chilling the candor of White House communications,

since “[t]he President himself must make decisions relying substantially,

if not entirely, on the information and analysis supplied by advisers.”

Sealed Case, 121 F.3d at 750.

Such responses and briefings, in lieu of documents, are generally suffi-

cient to satisfy the legitimate information needs of congressional commit-

tees. As noted above, because the purpose of oversight is to enable Con-

gress to “exercise its legislative function advisedly and effectively,”

McGrain, 273 U.S. at 161, rarely do the “legislative judgments” informed

by the oversight process depend on a “precise reconstruction of past

events,” Senate Select Comm., 498 F.2d at 732; see Mazars, 140 S. Ct. at

2036; Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *10.

Moreover, “‘Congress will seldom have any legitimate legislative interest

in knowing the precise predecisional positions and statements of particu-

lar executive branch officials.’” Congressional Requests, 13 Op. O.L.C. at

159 (citation omitted). Although in appropriate circumstances agencies

may offer the accommodation of access to deliberative materials (permit-

ting them to be read but not copied, for example), such an accommodation

would be quite unusual for internal White House and intra-EOP delibera-

tive communications because of the President’s unique need for autonomy

and heightened confidentiality interests.

IV. Congressional Subpoenas to the White House

We next turn to consider the procedures by which congressional com-

mittees may issue and seek to enforce subpoenas. Drawing on the consti-

tutional principles discussed in the prior Parts, we outline some of the

grounds on which the Executive Branch has commonly objected to the

scope or enforceability of congressional subpoenas.

43

45 Op. O.L.C. __ (Jan. 8, 2021)

A. Issuance and Enforcement of Subpoenas

Congress’s subpoena power is inherent in its investigative authority.

See Mazars, 140 S. Ct. at 2031; U.S. Servicemen’s Fund, 421 U.S. at 504

(observing that the issuance of subpoenas “has long been held to be a

legitimate use by Congress of its power to investigate”); Independent

Counsel Act Requests, 10 Op. O.L.C. at 81–82 (discussing congressional

authority to issue subpoenas). Because the authority to issue subpoenas is

an inherent constitutional power, Congress does not need statutory author-

ization to issue a subpoena, but any “exercise of subpoena power must be

authorized by the relevant House.” Independent Counsel Act Requests, 10

Op. O.L.C. at 82 (citing Reed v. Cty. Comm’rs, 277 U.S. 376, 389 (1928);

McGrain, 273 U.S. at 158); see also Authority to Investigate for Im-

peachment, 44 Op. O.L.C. __, at *19 (“a committee’s authority to compel

the production of documents and testimony depends entirely upon the

jurisdiction provided by the terms of the House’s delegation”).

The Senate rules provide committees with the authority to subpoena

witnesses, “correspondence, books, papers, and documents,” Senate Rule

XXVI(1), and similarly the rules of the House of Representatives author-

ize committees to subpoena “witnesses and the production of such books,

records, correspondence, memoranda, papers, and documents as [they]

consider[] necessary,” House Rule XI.2(m)(1)(B). The precise procedures

for issuing a subpoena vary depending on the rules of the chamber and

committee involved. See Michael L. Koempel, Cong. Research Serv.,

R44247, A Survey of House and Senate Committee Rules on Subpoenas 5–

16 (Jan. 29, 2018) (“Survey of Committee Rules”) (detailing House and

Senate chamber and committee rules on subpoena procedures). In the

House, subpoenas generally may be issued by a committee “only when

authorized by the committee . . . , a majority being present,” but commit-

tees may delegate that power to “the chair of the committee under such

rules and under such limitations as the committee may prescribe.” House

Rule XI.2(m)(3)(A)(i); see also Survey of Committee Rules at 1 (“[m]ost

House committees” have delegated subpoena power to their chairs). The

Senate’s standing rules delegate to each committee responsibility for

establishing subpoena procedures, and the procedures vary widely. See

Senate Rule XXVI(2).

44

Congressional Oversight of the White House

During Watergate and on several occasions more recently, congression-

al committees have turned to the federal courts seeking the enforcement

of subpoenas against executive branch officials. This is a marked depar-

ture from long-standing practice: “Historically, disputes over congres-

sional demands for presidential documents have not ended up in court.”

Mazars, 140 S. Ct. at 2029; see Comm. on the Judiciary v. McGahn, 968

F.3d 755, 777 (D.C. Cir. 2020) (en banc) (noting that “there have been

relatively few” such cases). The Supreme Court has recognized that

“Congress and the Executive have nonetheless managed for over two

centuries to resolve” privilege disputes without recourse to the Supreme

Court. Mazars, 140 S. Ct. at 2031. And although Mazars arose in an

unusual posture that made it justiciable—because the President in his

personal capacity sought to require his accountants to comply with their

confidentiality obligations—that case was the first such dispute to reach

the Supreme Court. See id. (“we have never considered a dispute over a

congressional subpoena for the President’s records”).

In recent decades, the Department of Justice has maintained that a con-

gressional suit to enforce a subpoena against the Executive Branch is not

justiciable. 17 First, such a lawsuit typically alleges an abstract “type of

institutional injury (the diminution of legislative power)” that does not

constitute a “‘concrete and particularized’” legal injury as required for

Article III standing—a doctrine that applies “especially rigorous[ly]” in

separation of powers cases. Raines v. Byrd, 521 U.S. 811, 819–21 (1997)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Second, as

noted above, such suits were nearly unprecedented as a historical matter,

despite the history of oversight disputes between Congress and the Execu-

17 Although a congressional committee may not seek judicial enforcement of a subpoe-

na against the Executive Branch, there are some cases, such as Mazars, where a suit

involving a congressional subpoena would be justiciable. The dispute there no doubt

presented “significant separation of powers issues” and was in meaningful respects an

inter-branch dispute, 140 S. Ct. at 2033–34, but as noted, it involved the President’s

private right in his personal papers and the legal obligations owed to him by third parties

that were the actual recipients of the subpoenas, see id. at 2027–28; see also Comm. on

the Judiciary v. McGahn, 951 F.3d 510, 531 (D.C. Cir. 2020) (“we may adjudicate cases

concerning congressional subpoenas if they implicate the rights of private parties”),

vacated on reh’g en banc, 968 F.3d 755; United States v. Am. Tel. & Tel. Co., 551 F.2d

384, 390–91 (D.C. Cir. 1976) (holding that an executive branch suit to enjoin a third party

from complying with a congressional subpoena was justiciable).

45

45 Op. O.L.C. __ (Jan. 8, 2021)

tive Branch going back to the First Congress, and thus are not “‘tradition-

ally thought to be capable of resolution through the judicial process.’” Id.

at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)); see also Sprint

Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008) (“history

and tradition offer a meaningful guide to the types of cases that Article III

empowers federal courts to consider”). It was not until 1974—almost two

centuries after the Constitution’s ratification—that a committee of Con-

gress appears to have first brought a civil action attempting to compel

executive branch compliance with a subpoena. See Senate Select Comm.,

498 F.2d 725. In that case, a statute purported to give the District Court

for the District of Columbia jurisdiction in “any civil action” brought by

the Senate committee investigating the Watergate scandal to “enforce and

secure a declaration concerning the validity of any subpoena.” Pub. L. No.

93-190, § (a), 87 Stat. 736, 736 (1973); see also Senate Select Comm., 498

F.2d at 727–28 (explaining the jurisdiction conferred by the special law).

The court of appeals did not address whether the case was justiciable as a

constitutional matter. No committee of Congress brought a subpoena-

enforcement action again until 2008, when House committees began filing

such suits with some regularity. 18

Earlier this year, a panel of the D.C. Circuit agreed with the Depart-

ment and dismissed a congressional suit seeking enforcement of a sub-

poena to the former Counsel to the President. Comm. on the Judiciary v.

McGahn, 951 F.3d 510 (D.C. Cir. 2020), vacated on reh’g en banc, 968

F.3d 755. The panel concluded that “separation-of-powers principles and

historical practice” bar federal courts from exercising jurisdiction over

committee suits “to enforce a congressional subpoena against the Execu-

tive Branch.” Id. at 522. The court reheard the case en banc and vacated

that ruling, holding that congressional committees could assert informa-

tional injuries no less than private parties because the constitutional

separation of powers erects no “structural barrier to judicial involvement

in informational disputes between the elected branches.” McGahn, 968

18 See Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary v.

Miers, No. 08-0409 (D.D.C. Mar. 10, 2008); Complaint, Comm. on Oversight & Gov’t

Reform v. Holder, No. 12-1332 (D.D.C. Aug. 13, 2012); Complaint for Declaratory and

Injunctive Relief, Comm. on the Judiciary v. McGahn, No. 19-2379 (D.D.C. Aug. 7,

2019); Complaint for Declaratory and Injunctive Relief, Comm. on Oversight & Reform v.

Barr, No. 19-3557 (D.D.C. Nov. 26, 2019).

46

Congressional Oversight of the White House

F.3d at 768. But see id. at 783–84 (Griffith, J., dissenting) (faulting the

majority for “its neglect of the interbranch nature of this dispute”). On

remand, however, the panel held that congressional committees nonethe-

less lack a cause of action to seek judicial enforcement of a subpoena in

this context. McGahn, 973 F.3d 121 (D.C. Cir. 2020), reh’g en banc

granted, No. 19-5331 (Oct. 15, 2020).

As the panel recognized, even if congressional suits to enforce subpoe-

nas to the Executive Branch were justiciable, they fall outside the statuto-

ry jurisdiction of the federal courts and are unsupported by any cause of

action. Although committees have relied upon the federal-question statute,

28 U.S.C. § 1331, as a basis for subject-matter jurisdiction, a more specif-

ic statute governs jurisdiction over congressional subpoena-enforcement

suits, id. § 1365(a). This latter statute provides jurisdiction only for Sen-

ate actions, and more importantly excludes all actions to enforce subpoe-

nas against executive branch officials who raise “a governmental privi-

lege.” Id.; see McGahn, 951 F.3d at 522 (“The obvious effect of section

1365(a)’s carve-out is to keep interbranch information disputes like this

one out of court.”). Indeed, the carve-out sought to accommodate the

Executive Branch’s view, expressed by then-Assistant Attorney General

Scalia, that “the Supreme Court should not and would not undertake to

adjudicate the validity of the assertion of executive privilege against the

Congress.” Executive Privilege—Secrecy in Government: Hearings on S.

2170, S. 2378, and S. 2420 Before the Subcomm. on Intergovernmental

Relations of the S. Comm. on Gov’t Operations, 94th Cong. 83 (1975)

(statement of Assistant Attorney General Scalia); see also id. at 84

(“[T]he courts are precisely not the forum in which this issue should be

resolved.”).

Moreover, in addition to lacking a statutory basis for jurisdiction,

House committees lack any cause of action to enforce their subpoenas.

The statute that provides a cause of action to enforce Senate subpoenas,

2 U.S.C. § 288d, like section 1365(a), applies only to the Senate (and

imposes various restrictions). That limitation (among other considera-

tions) also makes clear, as the McGahn panel explained, that neither an

implied cause of action under Article I of the Constitution nor an equita-

ble cause of action is available to the House in this context. See 973 F.3d

at 123–24; see also id. at 124–25 (applying Supreme Court and circuit

precedent to reject the argument that the Declaratory Judgment Act, 28

47

45 Op. O.L.C. __ (Jan. 8, 2021)

U.S.C. § 2201, provides a cause of action). As the Supreme Court has

recognized, Congress’s authority “to compel production of evidence

differs widely from authority to invoke judicial power for that purpose.”

Reed, 277 U.S. at 389.

In the 1980s, this Office opined that these civil suits do lie within the

constitutional and statutory jurisdiction of the federal courts and are

appropriate for judicial resolution. See Independent Counsel Act Requests,

10 Op. O.L.C. at 87–89; Prosecution for Contempt of Congress of an

Executive Branch Official Who Has Asserted a Claim of Executive Privi-

lege, 8 Op. O.L.C. 101, 137 (1984) (“Prosecution for Contempt of Con-

gress”). 19 But those statements preceded significant decisions in which the

Supreme Court clarified the requirements of Article III standing (most

notably Raines v. Byrd ) and amendments to 28 U.S.C. § 1365(a) enacted

in 1996 that confirm Congress’s intent to bar inter-branch informational

disputes from federal court. See McGahn, 951 F.3d at 522 (discussing

1996 legislative history). In fact, the author of one such OLC opinion,

Assistant Attorney General Theodore Olson, argued while later serving as

Solicitor General that these developments in the law undermined the

Department’s earlier view. See Defendant’s Memorandum of Points &

Auths. in Reply to Plaintiff ’s Opposition to Motion to Dismiss, Walker v.

Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002) (No. 02-340), 2002 WL

32388026 (relying on Raines to argue that a suit brought by the Comptrol-

ler General against executive branch officials was nonjusticiable). This

Office was consulted on that brief at the time, and we continue to think

that these developments in the law support the Department’s current view

that Congress may not properly seek to enforce its subpoenas in federal

court against executive branch officials.

Congress has increasingly turned to civil enforcement suits as an alter-

native to traditional efforts to compel executive branch officials to pro-

vide information that Congress has requested. Historically, Congress has

had no shortage of ways to use its powers to press executive branch

officials to negotiate and to comply with appropriate informational de-

The Department of Justice even attempted to bring an analogous suit against the

19

House in 1983. See United States v. House of Representatives, 556 F. Supp. 150 (D.D.C.

1983) (dismissing, on prudential grounds, a suit seeking a declaratory judgment that the

Administrator of the Environmental Protection Agency had lawfully withheld privileged

documents from Congress).

48

Congressional Oversight of the White House

mands. Congress has the power of the purse, see U.S. Const. art. I, § 9,

cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence

of Appropriations made by Law”), as well as the power to impeach and

remove executive officers, see id. § 2, cl. 5; id. § 3, cls. 6–7, and the

Senate’s consent is necessary for the appointments of many senior execu-

tive officers, see id. art. II, § 2, cl. 2. Congress also may press its case

directly to the press and to the public at large. Those powers have fre-

quently been deployed as a means of ensuring that the Executive Branch

acts in accord with the “tradition of negotiation and compromise,”

Mazars, 140 S. Ct. at 2031, that has led to the successful resolution of

many oversight disputes.

Congress also has other, more direct means of ensuring compliance

with subpoenas. One theoretical option would be for the House or Senate

to invoke its inherent contempt powers and instruct the Sergeant-at-Arms

to arrest an individual cited for contempt. See Jurney v. MacCracken, 294

U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821). How-

ever, Congress has not sought to arrest any person for contempt in more

than 80 years, see Independent Counsel Act Requests, 10 Op. O.L.C. at

86, and has not sought to arrest an executive branch official in more than

a century, see McGahn, 968 F.3d at 776. Any effort by Congress to arrest

a White House official for noncompliance with a subpoena based upon a

legitimate separation of powers objection would, besides raising serious

practical concerns, likely be unconstitutional. See Immunity of the Former

Counsel, 43 Op. O.L.C. __, at *20–21 (“The constitutional separation of

powers bars Congress from exercising its inherent contempt power in the

face of a presidential assertion of executive privilege. An attempt to

exercise inherent contempt powers in such a circumstance would be

without precedent and would immeasurably burden the President’s ability

to assert the privilege and to carry out his constitutional functions.” (in-

ternal quotation marks omitted)). Congressional authority to arrest execu-

tive officials for actions properly taken to protect the prerogatives of the

Executive Branch is the type of “great substantive and independent pow-

er[]” that the Constitution would not have left to mere implication. Nat’l

Fed’n of Indep. Bus., 567 U.S. at 559 (opinion of Roberts, C.J.) (internal

quotation marks omitted).

To complement its inherent contempt power, Congress in the mid-

nineteenth century enacted a criminal statute to prohibit defiance of a

49

45 Op. O.L.C. __ (Jan. 8, 2021)

congressional subpoena. See 2 U.S.C. § 192. Under the statute, where a

person who is summoned to give testimony or to produce papers and

“willfully makes default, or who, having appeared, refuses to answer any

question pertinent to the question under inquiry,” id., the President of the

Senate or the Speaker of the House may refer to an “appropriate United

States attorney” for prosecution an individual who refuses to comply with

a subpoena. Id. § 194. Congress has invoked the criminal contempt statute

against private parties and executive branch officials as well.

We have long maintained, however, that the contempt statute does not

apply to executive branch officials who resist congressional subpoenas in

order to protect the prerogatives of the Executive Branch. See Prosecution

for Contempt of Congress, 8 Op. O.L.C. at 129–42. Moreover, given that

the prosecution authority is part of the executive power, Congress may

only refer an individual to a United States Attorney for a contempt prose-

cution; the Department of Justice ultimately has the prosecutorial discre-

tion to decide whether a person should be indicted and prosecuted. See

Nixon, 418 U.S. at 693 (“the Executive Branch has exclusive authority

and absolute discretion to decide whether to prosecute a case”); Prosecu-

tion for Contempt of Congress, 8 Op. O.L.C. at 119–20 (Department of

Justice controls whether any contempt prosecution will be brought). In

response to criminal referrals for two White House officials in 2008, for

instance, Attorney General Michael Mukasey notified the Speaker of the

House that the Department of Justice would “not bring the congressional

contempt citations before a grand jury or take any other action to prose-

cute,” because, in light of the President’s assertions of executive privi-

lege, the “non-compliance by [the President’s Chief of Staff ] and [the

former Counsel to the President] . . . did not constitute a crime.” Letter

for Nancy Pelosi, Speaker of the House, from Michael B. Mukasey,

Attorney General at 2 (Feb. 29, 2008); see also Prosecution for Contempt

of Congress, 8 Op. O.L.C. at 128 (contempt statute does not override the

Executive’s prosecutorial discretion); Prosecutorial Discretion Regard-

ing Citations for Contempt of Congress, 38 Op. O.L.C. 1, 2–3 (2014)

(same).

Congressional committees have generally sought enforcement of sub-

poenas against noncompliant witnesses only with an authorization from

the full House or Senate. See 2 U.S.C. § 288b(b) (requiring “adoption of a

resolution by the Senate” to authorize a Senate subpoena-enforcement

50

Congressional Oversight of the White House

suit); House Rule XI.2(m)(3)(C) (“Compliance with a subpoena issued by

a [House] committee or subcommittee . . . may be enforced only as au-

thorized or directed by the House.”); Cong. Research Serv., RL30548,

Hearings in the U.S. Senate: A Guide for Preparation and Procedure 11

(Mar. 18, 2010) (“Compliance with a [Senate committee] subpoena can be

enforced only at the direction of the Senate.”); Independent Counsel Act

Requests, 10 Op. O.L.C. at 82–83 (discussing procedures for enforcing

House subpoenas). 20 If the committee seeks to enforce the subpoena by

holding the recipient in contempt, the committee (by a majority vote)

must seek such approval by “report[ing] a resolution of contempt to the

floor.” Louis Fisher, Cong. Research Serv., Congressional Investigations:

Subpoenas and Contempt Power 7 (Apr. 2, 2003) (“Subpoenas and Con-

tempt Power”); see also 2 U.S.C. § 194 (requiring, for a contempt of

Congress prosecution, that noncompliance with a subpoena be reported to

the House or Senate, or House or Senate leadership if Congress is not in

session). The full House or Senate must then “vote in support of the

contempt citation” before the contempt may be referred to the U.S. Attor-

ney. Subpoenas and Contempt Power at 7; see also Wilson v. United

States, 369 F.2d 198, 203 (D.C. Cir. 1966) (explaining that a chamber-

wide vote provides “a ‘check’ on hasty action by a committee” and avoids

a situation where “the allegedly insulted committee . . . provide[s] the sole

legislative determination whether to initiate proceedings to prosecute for

contempt”).

Committees of Congress have issued and likely will continue to issue

subpoenas for documents and testimony to White House personnel. Less

certain, however, is whether congressional entities have any authority to

seek to compel compliance with such subpoenas in court. We believe that

congressional suits to enforce subpoenas to executive branch officials fall

outside the constitutional and statutory jurisdiction of the federal courts;

20 Where recourse has been made to the courts, the House or Senate has typically au-

thorized such an action by resolution. Todd Garvey, Cong. Research Serv., R45653,

Congressional Subpoenas: Enforcing Executive Branch Compliance 5 (Mar. 27, 2019);

see, e.g., H.R. Res. 706, 112th Cong. (2012) (authorizing suit to enforce subpoena to

Attorney General Holder). In the 116th Congress, however, the House broke from this

practice by adopting a resolution enabling committees to file suit whenever authorized by

the Bipartisan Legal Advisory Group, H.R. Res. 430 (2019), which comprises the House

Speaker and majority and minority leaderships, House Rule II.8(b).

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45 Op. O.L.C. __ (Jan. 8, 2021)

the inherent contempt mechanism appears to have fallen into desuetude,

and would present grave constitutional concerns if deployed against

executive branch officials acting to protect the lawful prerogatives of the

Executive; and the Executive Branch has discretion to refuse to bring a

contempt of Congress criminal prosecution against one of its officials in

such circumstances.

B. Validity of Subpoenas Issued to the White House

It is the Executive Branch’s settled policy to work to accommodate

congressional requests for information in a manner consistent with the

Executive’s constitutional and statutory obligations. Historically, how-

ever, congressional subpoenas to executive branch officials have raised

a variety of separation of powers concerns. This section identifies and

discusses a number of legal defects, several of which are discussed at

greater length above, that have commonly arisen in subpoenas involv-

ing the White House. These limitations on Congress’s oversight powers

are rooted in the separation of powers, and observing them serves to

prevent Congress from “aggrandiz[ing] itself at the [Executive’s] ex-

pense.” Mazars, 140 S. Ct. at 2034.

Lack of Oversight Authority or Legitimate Legislative Purpose. As we

have discussed, all congressional oversight inquiries must be conducted in

support of Congress’s legislative authority under Article I of the Constitu-

tion. See id. at 2031–32, 2035–36; McGrain, 273 U.S. at 177. A subpoena

that seeks material or testimony on matters beyond Congress’s legislative

authority, such as the exercise of a constitutional power vested exclusive-

ly in the Executive Branch, is beyond Congress’s oversight authority. See

Barenblatt, 360 U.S. at 111–12.

Infringement of Presidential Autonomy and Confidentiality. Congres-

sional inquiries to the White House are constrained by “the Executive

Branch’s interests in maintaining the autonomy of its office and safe-

guarding the confidentiality of its communications.” Cheney, 542 U.S. at

385. In certain circumstances, compliance with a congressional subpoena

directed at the White House may unduly impair the Executive’s “ability to

discharge its constitutional responsibilities.” Id. at 382. For example,

compliance with a subpoena that is excessively broad or intrusive might

burden White House personnel to a degree that prevents them from effec-

52

Congressional Oversight of the White House

tively advising and assisting the President in the performance of his

constitutional duties. In that circumstance, it would be unconstitutional to

enforce such an unduly broad subpoena. Of course, the accommodation

process serves to ensure that congressional requests are tailored or nar-

rowed so as to avoid infringement of presidential autonomy and confiden-

tiality while satisfying Congress’s legitimate needs for relevant infor-

mation.

Immunity of White House Officials from Compelled Testimony. Re-

latedly, the White House has consistently resisted subpoenas that seek to

compel the President’s immediate advisers to testify before congressional

committees. The White House has declined to make many of the Presi-

dent’s immediate advisers available since the establishment of the EOP,

and for almost 50 years, the Department of Justice has articulated this

position as a legal immunity—that “the President and his immediate

advisers are absolutely immune from testimonial compulsion by a Con-

gressional committee on matters related to their official duties.” Immunity

of the Former Counsel, 43 Op. O.L.C. __, at *3 (internal quotation marks

omitted). 21 As Assistant Attorney General Rehnquist explained:

The President and his immediate advisers—that is, those who cus-

tomarily meet with the President on a regular or frequent basis—

should be deemed absolutely immune from testimonial compulsion

by a congressional committee. They not only may not be examined

with respect to their official duties, but they may not even be com-

pelled to appear before a congressional committee.

Memorandum for John D. Ehrlichman, Assistant to the President for

Domestic Affairs, from William H. Rehnquist, Assistant Attorney Gen-

eral, Office of Legal Counsel, Re: Power of Congressional Committee to

Compel Appearance or Testimony of “White House Staff ” at 7 (Feb. 5,

1971); see also Immunity of the Former Counsel, 43 Op. O.L.C. __, at *7–

21 Although this Office has spoken of this protection from compelled congressional

testimony in terms of “immunity,” it may equally be viewed as a limitation on the breadth

of Congress’s implied power to compel testimony. Cf. New York v. United States, 505

U.S. 144, 159 (1992) (“it makes no difference whether one views” a federalism question

as turning upon “the limits of the power delegated to the Federal Government under the

affirmative provisions of the Constitution” or the scope of the “sovereignty retained by

the States under the Tenth Amendment”).

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45 Op. O.L.C. __ (Jan. 8, 2021)

11 (listing historical examples of immediate presidential advisers refusing

to testify); Letter for Phillip E. Areeda, Counsel to the President, from

Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, att.

at 6 (Sept. 25, 1974) (“at least since the Truman Administration,” presi-

dential advisers “have appeared before congressional committees only

where the inquiry related to their own private affairs or where they had

received Presidential permission”).

Consequently, in addition to invoking executive privilege over particu-

lar questions, the President “can also direct them not even to appear

before the committee.” Memorandum for Margaret McKenna, Deputy

Counsel to the President, from John M. Harmon, Assistant Attorney

General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advis-

ers app. at 7 (Aug. 11, 1977). For example, in 1981, Martin Anderson,

President Reagan’s assistant for policy development, refused to appear

before a House appropriations subcommittee responsible for funding his

office. White House Counsel Fred F. Fielding explained that “[f ]rom the

Administration of George Washington to the present day, it has been a

central tenet of the doctrine of separation of powers among the three

branches of the Federal Government that the President is not subject to

questioning as to the manner in which he formulates Executive policy”;

this principle “founded in practicality as well as tradition and law” “has

also been applied to senior members of the President’s personal staff, who

participate in the deliberative process through which such policies are

developed.” Letter for Edward R. Roybal, Chairman, Subcommittee on

Treasury, Postal Service, General Government, U.S. House of Representa-

tives, from Fred F. Fielding, Counsel to the President (July 8, 1981),

reprinted in H.R. Rep. No. 97-171, at 61 (1981). This testimonial im-

munity safeguards the constitutional separation of powers by protecting

the independence and autonomy of the Presidency from congressional

interference; it also “protects the Executive Branch’s strong interests in

confidentiality as well as the President’s ability to obtain sound and

candid advice.” Immunity of the Former Counsel, 43 Op. O.L.C. __, at *5;

accord Immunity of the Director of the Office of Political Strategy and

Outreach from Congressional Subpoena, 38 Op. O.L.C. 5, 7–9 (2014).

Immediate advisers to the President remain immune from compelled

testimony about their official duties in that capacity even after they leave

the White House. See Immunity of the Former Counsel, 43 Op. O.L.C. __,

54

Congressional Oversight of the White House

at *15–16 (explaining that “the risk to the separation of powers and to the

President’s autonomy posed by a former adviser’s testimony on official

matters continues after the conclusion of that adviser’s tenure”). In deter-

mining whether a person qualifies for this immunity, we have considered

the day-to-day responsibilities of the adviser and the extent of his or her

regular interaction with the President. Although most members of the

White House staff do not qualify for immunity from compelled testimony,

as a matter of policy the White House has generally opposed making any

members of the White House staff available to testify, subject to the

accommodation process.

The Executive Branch’s position on immunity is well established by

our precedent and practice, but the federal courts have looked less favora-

bly on this position in the two cases in which the House sought to test it in

court. The district courts to consider the question have held that senior

presidential advisers do not, at least as a categorical matter, enjoy abso-

lute immunity from compelled congressional testimony. See Comm. on

the Judiciary v. Miers, 558 F. Supp. 2d 53, 105–06 (D.D.C. 2008); Comm.

on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 200–14 (D.D.C. 2019).

But the first of those decisions was stayed pending appeal, Comm. on the

Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) (per curiam), and then

settled without enforcement of the subpoena, 2009 WL 3568649 (D.C.

Cir. Oct. 14, 2009). The second decision remains under review in the D.C.

Circuit. In the latter case, two judges sitting on the D.C. Circuit panel

similarly expressed doubt about the existence of this absolute immunity.

See McGahn, 951 F.3d at 538–42 (Henderson, J., concurring); id. at 558

(Rogers, J., dissenting). No precedential ruling has addressed the Execu-

tive Branch’s position, however, which for decades has governed the

Executive Branch’s negotiations with congressional committees seeking

the testimony of the President’s immediate advisers.

Exclusion of Counsel from Depositions. Although historically Con-

gress has sought to obtain testimony from executive branch officials by

means of voluntary interviews and public hearings, committees in recent

years have made increasing use of depositions. See, e.g., H.R. Res. 6,

116th Cong. § 103(a)(1) (2019) (authorizing committee chairs to “order

the taking of depositions, including pursuant to subpoena, by a member or

counsel of such committee”). And certain committees, based on the cur-

rent House rules governing depositions, have attempted to bar executive

55

45 Op. O.L.C. __ (Jan. 8, 2021)

branch witnesses from being accompanied by agency counsel at their

depositions, allowing only private counsel. 165 Cong. Rec. H1216 (daily

ed. Jan. 25, 2019) (“counsel for government agencies . . . may not at-

tend”); see also, e.g., H. Comm. on Oversight & Reform Rule 15(e),

116th Cong. (2019) (counsel “for agencies under investigation . . . may

not attend”). The Executive Branch has repeatedly resisted this practice

and sought to maintain the “[l]ongstanding Executive Branch policy and

practice” of agency counsel accompanying agency officials when they are

questioned by Congress. Letter for Henry Waxman, Chairman, Committee

on Oversight and Government Reform, U.S. House of Representatives,

from Dinah Bear, General Counsel, Council on Environmental Quality at

2 (Mar. 12, 2007).

This Office has advised that barring agency counsel from congressional

depositions is unconstitutional because it “compromise[s] the President’s

constitutional authority to control the disclosure of privileged information

and to supervise the Executive Branch’s communications with congres-

sional entities.” Exclusion of Agency Counsel, 43 Op. O.L.C. __, at *2;

see also Authority of the Department of Health and Human Services to

Pay for Private Counsel to Represent an Employee Before Congressional

Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18, 2017) (noting that

excluding agency counsel may raise “constitutional concerns” but reserv-

ing the question). This principle of course applies to depositions of White

House officials. In Exclusion of Agency Counsel, for example, we advised

that a subpoena issued by the House Committee on Oversight and Reform

to the former head of the White House Personnel Security Office was

invalid on this basis. See 43 Op. O.L.C. __, at *2, *6. Subpoenas requiring

White House personnel to testify without agency counsel are therefore

without legal effect and may not constitutionally be enforced, civilly or

criminally, against their recipients. See id. at *13–14.

Failure to Exhaust the Accommodation Process. The White House

often has responded to congressional requests by insisting that committees

engage in the accommodation process. See supra Part III.C. A congres-

sional committee may not avoid its obligation to participate in this consti-

tutionally mandated process by issuing or seeking to enforce a subpoena

before the accommodation process has run its course. Thus, White House

officials have often cited a committee’s failure to exhaust the accommo-

dation process in objecting to a congressional subpoena.

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Congressional Oversight of the White House

The accommodation process encompasses the exhaustion principle that

we have discussed above. The White House may object to a committee’s

refusal to seek necessary information from the relevant executive branch

departments and agencies before directing requests to the White House.

See Mazars, 140 S. Ct. at 2035–36 (“Congress may not rely on the Presi-

dent’s information if other sources could reasonably provide Congress the

information it needs in light of its particular legislative objective.”).

Where a committee declines to honor its obligation to accommodate the

legitimate needs of the White House, the committee may not lawfully

begin the contempt process based upon good faith objections raised by

White House officials.

Assertion of Executive Privilege. An assertion of executive privilege

authorized by the President is a well-established ground for resisting a

congressional subpoena. See id. at 2032 (“recipients [of legislative sub-

poenas] have long been understood to retain common law and constitu-

tional privileges with respect to certain materials, such as . . . governmen-

tal communications protected by executive privilege”). Executive

privilege consists of several components, which vary in scope and the

extent of protection from disclosure. See supra Part III.B. As relevant to

the White House, a congressional committee may overcome an assertion

of executive privilege based on the presidential communications compo-

nent of the privilege only by “demonstrat[ing] that the information sought

is ‘demonstrably critical to the responsible fulfillment of the Committee’s

functions.’” Assertion of Executive Privilege for Documents Concerning

Conduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6

(1996) (Reno, Att’y Gen.) (quoting Senate Select Comm., 498 F.2d at

731). White House officials have an obligation to minimize the disclosure

of privileged information and to protect the President’s authority to de-

termine when it would be in the public interest to provide such infor-

mation as an accommodation.

This is not to say that the Executive Branch must or should claim exec-

utive privilege as a prerequisite to asserting any confidentiality interests

in connection with congressional oversight. A formal assertion of execu-

tive privilege is a last resort in the sense that it is typically only needed

when the Executive Branch has already asserted its confidentiality inter-

ests, but the accommodation process has failed to produce a resolution

and the relevant committee moves to initiate enforcement action by voting

57

45 Op. O.L.C. __ (Jan. 8, 2021)

to recommend that the recipient of the subpoena be cited for contempt of

Congress. 22 However, a formal assertion of privilege does not preclude

the possibility of further negotiation and accommodation.

Unreasonable Burden to Comply. White House officials also may de-

cline to comply fully with the terms of a subpoena based on a concern that

compliance would be unreasonably burdensome or impossible. Compared

to the departments and agencies, White House components have small

staffs who are primarily devoted to advising and assisting the President.

Exempt from FOIA, these White House components do not have trained

standing units devoted to document review and response work. Instead,

these White House components need to divert staff from their work for

the President to process congressional oversight requests. The White

House is thus less likely than other parts of the Executive Branch to have

the resources available to comply fully with subpoenas that are broad in

scope and have urgent return dates.

The federal courts’ rules of procedure for both civil and criminal cases

relieve parties of the obligation to comply with a subpoena where the

scope of the request and the return date make compliance unreasonably

burdensome or impossible. See Fed. R. Civ. P. 45(d)(3)(A) (court “must

quash or modify a subpoena that . . . fails to allow a reasonable time to

comply”); Fed. R. Crim. P. 17(c)(2) (“court may quash or modify the

subpoena if compliance would be unreasonable or oppressive”). Further, a

party may not be held in contempt for noncompliance with a subpoena

when compliance is an impossibility. See, e.g., In re Marc Rich & Co.,

736 F.2d 864, 866 (2d Cir. 1984) (noting that the district court “made it

perfectly clear that [a contemnor] simply had to produce appropriate

affidavits attesting to the impossibility of compliance and the [contempt]

judgment would be lifted”). Similar principles apply in the context of

22 When this course of events moves too quickly to allow for an adequate executive

privilege review, the President may make a “protective” assertion of executive privilege

over a class of documents in order “to ensure [his] ability to make a final decision, after

consultation with the Attorney General, as to which specific documents are deserving of a

conclusive claim of executive privilege.” Protective Assertion of Executive Privilege

Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 1, 1 (1996) (Reno,

Att’y Gen.); accord Protective Assertion of Executive Privilege Over Unredacted Mueller

Report and Related Investigative Files, 43 Op. O.L.C. __ (May 8, 2019) (Barr, Att’y

Gen.).

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Congressional Oversight of the White House

congressional subpoenas, particularly given that “Congress and the courts

have similar subpoena powers.” Nixon v. Sirica, 487 F.2d 700, 731 (D.C.

Cir. 1973) (en banc) (per curiam).

*****

It has long been the Executive Branch’s policy to “comply with Con-

gressional requests for information to the fullest extent consistent with the

constitutional and statutory obligations of the Executive Branch.” Reagan

Memorandum at 1. But the critical functions that White House staff mem-

bers play when advising and assisting the President in the performance of

his constitutional duties require that congressional oversight of the White

House be conducted differently from oversight of the departments and

agencies. The necessary approach has been described at length in this

memorandum opinion, but the core principle is that congressional com-

mittees and the White House must work together to accommodate con-

gressional needs for information about the Executive Branch’s discharge

of statutory obligations in a manner that does not undermine the White

House staff ’s ability to advise and assist the President.

STEVEN A. ENGEL

Assistant Attorney General

Office of Legal Counsel

59