Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Presidential Advisers’ Testimony Before

Congressional Committees: An Overview

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Legislative Attorney

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Specialist in American National Government

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Legislative Attorney

December 15, 2014

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RL31351

Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Summary

Since the beginning of the federal government, Presidents have called upon executive branch

officials to provide them with advice regarding matters of policy and administration. While

Cabinet members were among the first to play such a role, the creation of the Executive Office of

the President (EOP) in 1939 and the various agencies located within that structure resulted in a

large increase in the number and variety of presidential advisers. All senior staff members of the

White House Office and the leaders of the various EOP agencies and instrumentalities could be

said to serve as advisers to the President.

Occasionally, these executive branch officials playing a presidential advisory role have been

called upon to testify before congressional committees and subcommittees. Sometimes, such

invited appearances have been prompted by allegations of personal misconduct on the part of the

official, but they have also included instances when accountability for policymaking and

administrative or managerial actions have instigated the request for testimony. Because such

appearances before congressional committees or subcommittees seemingly could result in

demands for advice proffered to the President, or the disclosure—inadvertent or otherwise—of

such advice, there has been resistance, from time to time, by the Chief Executive to allowing such

testimony.

Congress has a constitutionally rooted right of access to the information it needs to perform its

Article I legislative and oversight functions. Generally, a congressional committee with

jurisdiction over the subject matter, which is conducting an authorized investigation for

legislative or oversight purposes, has a right to information held by the executive branch in the

absence of either a valid claim of constitutional privilege by the executive or a statutory provision

whereby Congress has limited its constitutional right to information.

A congressional committee may request (informally or by a letter from the committee chair,

perhaps co-signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a

presidential adviser. However, Congress may encounter legal and political problems in attempting

to enforce a subpoena to a presidential adviser. Conflicts concerning congressional requests or

demands for executive branch testimony or documents often involve extensive negotiations and

may be resolved by some form of compromise as to, inter alia, the scope of the testimony or

information to be provided to Congress.

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Contents

Executive Office of the President .................................................................................................... 3

Presidential Adviser Growth ............................................................................................................ 4

Presidential Adviser Testimony ....................................................................................................... 6

Presidential Adviser Testimony Refused ....................................................................................... 18

Weighing Congress’s Right to Executive Branch Information with Executive Claims of

Absolute Immunity ..................................................................................................................... 20

Procedure for Obtaining Executive Branch Testimony ................................................................. 24

Conclusion ..................................................................................................................................... 26

Contacts

Author Contact Information........................................................................................................... 26

Acknowledgments ......................................................................................................................... 26

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

S

ince the beginning of the federal government, Presidents have called upon executive branch

officials to provide them with advice regarding matters of policy and administration. The

Constitution recognized such relationships when it authorized the President, in Article II,

Section 2, to “require the Opinion, in writing, of the principal Officer in each of the executive

Departments, upon any Subject relating to the Duties of their respective Offices.” There were, as

well, reasons to expect that such advice, whether offered orally or in writing, would be held in

confidence. The advice was for the President’s consideration and his decision making. The

matters involved were sensitive, perhaps bearing upon the foreign, military, economic, or law

enforcement policy of the nation. Also, the provision, discussion, and use of such advice by the

executive branch could affect its relationships with the other coequal constitutional branches.

President George Washington and his Cabinet had these considerations in mind, as Secretary of

State Thomas Jefferson’s notes on their deliberations reflect, when they decided upon a response

to a 1792 congressional request for information.

We had all considered, and were of one mind, first, that the House was an inquest, and

therefore might institute inquiries. Second that it might call for papers generally. Third, that

the Executive ought to communicate such papers as the public good would permit, and ought

to refuse those, the disclosure of which would injure the public; consequently were to

exercise a discretion. Fourth, that neither the committee nor House had a right to call on the

Head of a Department, who and whose papers were under the President alone; but that the

committee should instruct their chairman to move the House to address the President....1

The Cabinet, composed of the principal officers in each of the executive departments, failed, for

several reasons, to develop as an important source of presidential advice. The department heads

constituting the Cabinet were often chosen to satisfy interests that contributed significantly to the

President’s election. Considerations of partisanship, ideology, geography, public image and

stature, and aptitude, among others, figured prominently in their selection. Sometimes the

President was not personally well acquainted with these individuals and had only minimal

confidence and trust in them. In a few cases, a political rival was included in the Cabinet.

It is also very likely that some activist Presidents were ill suited to the group deliberation of the

Cabinet. Similarly, many Cabinet members might have felt unqualified, or were unwilling, to

offer counsel to the President on matters outside of their immediate portfolios; their advice was

perhaps limited to, and protective of, departmental interests. Finally, personal hostilities between

or among department heads could result in such tumult within the Cabinet that little useful advice

could be gained.

Consequently, Presidents generally looked to other quarters for advisers. One development in this

regard was the creation of circles of advisers composed of both public officials and private

citizens. President Andrew Jackson, whose election and White House tenure occurred in an era

marked by violent political controversy and party instability, utilized an informal group of

advisers which came to be known as the Kitchen Cabinet. The members represented “rising social

groups as yet denied the prestige to which they felt their power and energies entitled them”—

newspapermen, the President’s private secretary, campaign organizers and officials from prior

administrations, and longtime personal friends.2

1

Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson, vol. 1 (Washington: Thomas

Jefferson Memorial Association, 1903), pp. 303-304.

2

Arthur M. Schlesinger, Jr., The Age of Jackson (Boston, MA: Little, Brown, 1945), p. 67.

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

When John Tyler succeeded to the presidency upon the death of William Henry Harrison, he

revived Jackson’s practice. Deserted by Whigs and Democrats alike, Tyler resorted to a select

circle of advisers composed of personal and political friends from his native Virginia—a college

president, a state supreme court judge, four members of the state’s delegation in the House of

Representatives, and a Senator.3 Following this practice, several succeeding Presidents had

informal groups of advisers that were given colorful names by the press. For example, for Grover

Cleveland, it was a Fishing Cabinet; for Theodore Roosevelt, a Tennis Cabinet; for Warren G.

Harding, a Poker Cabinet; and for Herbert Hoover, a Medicine Ball Cabinet.

Jackson’s inclusion of his personal secretary in his Kitchen Cabinet reflects another line of

development regarding presidential advisers. Beginning with Washington, Presidents sought to

meet the demands of their office with the assistance of a single personal secretary, usually a

relative, compensated from their own private resources. In 1833, Congress authorized the

President to appoint, with the advice and consent of the Senate, a secretary “whose duty it shall

be, under the direction of the President, to sign in his name and for him, all patents for lands sold

or granted under the authority of the United States.”4 Jackson named Andrew Jackson Donelson,

his wife’s nephew and current personal secretary, to this position, relieving himself of continued

personal compensation of the young man. Ultimately, Congress appropriated funds to the Chief

Executive in 1857 for an official household—a personal secretary, a steward to supervise the

Executive Mansion, and a messenger.5

Many years later, in 1929, Congress was persuaded to authorize an increase in the President’s top

personnel, adding two more secretaries and an administrative assistant.6 Appointed to these senior

staff positions were presidential lieutenants, if not presidential intimates and advisers. When

Franklin D. Roosevelt came to the presidency in 1933, he brought with him, from his New York

gubernatorial experience, a new kind of advisory circle, composed of intellectuals, or at least a

core group of Columbia University professors who were joined by other ideas people to form the

“Brains Trust.” Because there were an insufficient number of staff positions at the White House to

accommodate them, these advisers were placed elsewhere in the executive branch, but, for the

most part, directly served the President.7

This staffing situation, coordination problems, and the development of a new administrative

management concept prompted Roosevelt to create, by announcement, a study panel—the

President’s Committee on Administrative Management, under the leadership of Louis Brownlow,

a prominent public administration practitioner—in 1936 to examine and make recommendations

regarding these matters.8 Reporting some 10 months later, the Brownlow committee addressed

presidential staffing in dramatic and detailed terms.

The President needs help. His immediate staff assistance is entirely inadequate. He should be

given a small number of executive assistants who would be his direct aides in dealing with

the managerial agencies and administrative departments of the government. These assistants,

3

Louis W. Koenig, The Invisible Presidency (New York: Rinehart, 1960), p. 40.

4 Stat. 633.

5

11 Stat. 228.

6

45 Stat. 1230.

7

See Rexford G. Tugwell, The Brains Trust (New York: Viking, 1968).

8

Samuel I. Rosenman, ed., The Public Papers and Addresses of Franklin D. Roosevelt, Volume 5: The People

Approve, 1936 (New York: Random House, 1938), p. 144.

4

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

probably not exceeding six in number, would be in addition to the present secretaries, who

deal with the public, with the Congress, and with the press and radio. These aides would

have no power to make decisions or issue instructions in their own right. They would not be

interposed between the President and the heads of his departments. They would not be

assistant presidents in any sense. Their function would be, when any matter was presented to

the President for action affecting any part of the administrative work of the Government, to

assist him in obtaining quickly and without delay all pertinent information possessed by any

of the executive departments so as to guide him in making his responsible decisions; and

then when decisions have been made, to assist him in seeing to it that every administrative

department and agency affected is promptly informed. Their effectiveness in assisting the

President will, we think, be directly proportional to their ability to discharge their functions

with restraint. They would remain in the background, issue no orders, make no decisions,

emit no public statements. Men for these positions should be carefully chosen by the

President from within and without the Government. They should be men in whom the

President has personal confidence and whose character and attitude is [sic] such that they

would not attempt to exercise power on their own account. They should be possessed of high

competence, great physical vigor, and a passion for anonymity. They should be installed in

the White House itself, directly accessible to the President. In the selection of these aides, the

President should be free to call on departments from time to time for the assignment of

persons who, after a tour of duty as his aides, might be restored to their old positions.9

In addition to the proposed addition of six assistants to the President’s staff, the committee’s

report also recommended vesting responsibility in the President for the continuous reorganization

of the executive branch. Released to Congress on January 12, 1937, the report soon became lost

in high politics. Three weeks after submitting the Brownlow committee’s report to Congress,

Roosevelt announced he wanted to enlarge the membership of the Supreme Court. His “court

packing” plan not only fed congressional fears of a presidential power grab, but also so

preoccupied Congress that the Brownlow committee’s recommendations were ignored.

Executive Office of the President

Although efforts at gaining legislative approval of the Brownlow committee’s recommendations

lay in ruin in the spring of 1938, the President had not deserted the cause. By July, Roosevelt was

meeting with Brownlow and the other committee members. The panel would not be officially

reassembled, but he wanted each man’s help with a reorganization authority proposal. The

resulting measure empowered the President to propose reorganization plans, subject to a veto by a

majority vote of disapproval in both houses of Congress, and to also appoint six administrative

assistants.

After three days of discussion and debate, the House adopted the bill on March 8, 1939. Twelve

days later, the Senate began considering the proposal. Following two days of sparring over

amendments, the Senate adopted the bill. A quick conference cleared the measure for Roosevelt’s

signature on April 3.10 Earlier, the President had asked the Brownlow committee members to

assist with the preparation of his initial reorganization plans.11

9

U.S. President’s Committee on Administrative Management, Report of the President’s Committee (Washington:

GPO, 1937), p. 5.

10

53 Stat. 561.

11

Richard Polenberg, Reorganizing Roosevelt’s Government (Cambridge, MA: Harvard University Press, 1966), pp.

(continued...)

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Following consultations with Budget Bureau Director Harold D. Smith, the Brownlow group

presented two reorganization proposals to Roosevelt on April 23. Plan 1, submitted to Congress

on April 25, transferred certain agencies to the Executive Office of the President, but offered no

explanation of that entity.12 In Plan 2, a presidential emergency council was abolished and most of

its functions were transferred to the Executive Office.13 While both plans were acceptable to

legislators, their effective dates were troublesome in terms of accommodating fiscal calendar

necessities. By joint resolution, Congress provided that both plans would be effective on July 1,

1939.14 Following this action, the President, on September 8, issued E.O. 8248, formally

organizing the Executive Office and, thereby, defining it in terms of its components.15 Brownlow,

who drafted the initial reorganization plan, viewed the Executive Office as the institutional

realization of administrative management and “the effective coordination of the tremendously

wide-spread federal machinery.” He called the initial version “a little thing” compared to its later

size. It grew under Roosevelt and “it continued to expand and was further regularized by statute,

by appropriation acts, and by more reorganization plans” during the succeeding years.16

The Executive Office organized by E.O. 8248 consisted of the White House Office, the Bureau of

the Budget, the National Resources Planning Board, the Office of Government Reports, and the

Liaison Office for Personnel Management. It also provided that, “in the event of a national

emergency,” there could be established “such office for emergency management as the President

shall determine.” The Office for Emergency Management was created by an administrative order

on May 25, 1940, and its functions were further specified in an administrative order of January 7,

1941.17 It subsequently served as a parent unit for a number of subordinate emergency

management bodies.

Presidential Adviser Growth

The creation of the Executive Office of the President contributed to an increase in the number of

presidential advisers for several reasons. First, it provided an enclave for various agencies that

immediately assisted the President. Primary among these was the White House Office, which was

no longer merely the President’s small office staff, but an agency with hierarchically organized

staff positions whose personnel rapidly expanded during the next few decades.

Second, it counted agencies, such as the Liaison Office for Personnel Management and the Office

for Emergency Management, that were headed by an administrative assistant—and adviser—to

the President on the White House Office payroll. It also included agencies, such as the Bureau of

the Budget (and its Office of Management and Budget successor), that were headed by leaders for

whom advising the President was a primary responsibility.

(...continued)

184-187.

12

53 Stat. 1423.

13

53 Stat. 1431 at 1435.

14

53 Stat. 813.

15

3 C.F.R., 1938-1943 Comp., pp. 576-579.

16

Louis Brownlow, A Passion for Anonymity: The Autobiography of Louis Brownlow, Second Half (Chicago, IL:

University of Chicago Press, 1958), p. 416.

17

3 C.F.R., 1938-1943 Comp., pp. 1320-1321.

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Third, senior White House Office staff would come to supervise and direct the staff of other

Executive Office entities: the Assistant to the President for National Security Affairs would direct

the National Security Council staff and the Assistant to the President for Domestic Policy would

direct the Domestic Council staff.

Fourth, in January 1973, President Richard M. Nixon vested his Secretary of the Treasury and his

director of the Office of Management and Budget with dual White House Office positions,

respectively, of Assistant to the President for Economic Affairs and Assistant to the President for

Executive Management. He also vested his Secretary of Agriculture, Secretary of Health,

Education, and Welfare, and Secretary of Housing and Urban Development with dual White

House Office positions, respectively, of Counselor to the President for Natural Resources,

Counselor to the President for Human Resources, and Counselor to the President for Community

Development.18 Having such dual White House Office titles was viewed as giving added

emphasis, if not authority, to the role of these officials as presidential advisers.

In the aftermath of World War II, Congress statutorily chartered most of the agencies within the

Executive Office of the President. Furthermore, Congress routinely appropriated funds for the

operating expenses of these entities. In 1944, Congress had adopted an amendment to an

appropriation bill that was designed to restrain the creation of Executive Office agencies by

executive order—a frequent occurrence during 1941-1944. The amendment stated:

After January 1, 1945, no part of any appropriation or fund made available by this or any

other Act shall be allotted or made available to, or used to pay the expenses of, any agency or

instrumentality including those established by Executive order after such agency or

instrumentality has been in existence for more than one year, if the Congress has not

appropriated any money specifically for such agency or instrumentality or specifically

authorized the expenditure of funds by it.19

In 1982, when Title 31 of the United States Code was recodified, the amendment was repealed

and replaced with new language at Section 1347.20 The opening sentence of the new section,

which remains as operative law, states: “An agency in existence for more than one year may not

use amounts otherwise available for obligation to pay its expenses without a specific

appropriation or specific authorization by law.”

With their growing number and influence, senior staff members of the White House Office and

certain other Executive Office agencies began to become of interest to congressional committees

when accountability for policymaking and administrative or managerial actions prompted

requests for their testimony. Some, like War Production Board chairman Donald M. Nelson,21

who was popularly known as the “arms czar,” appeared before and cooperated with the Senate

Special Committee to Investigate the National Defense Program (“Truman Committee”) during

18

Weekly Compilation of Presidential Documents, vol. 9, January 8, 1973, p. 7.

58 Stat. 387.

20

96 Stat. 877 at 925, 1076.

21

Established by E.O. 9024 of January 16, 1942, the War Production Board was technically located within the Office

for Emergency Management, an agency within the Executive Office of the President, but it operated independently as

an arm of the President. The chairman of the board was presidentially appointed without Senate confirmation; eight

other specified government officials were members of the board. The board was terminated by E.O. 9638 of October 4,

1945.

19

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

World War II to report on and discuss war material production and related coordination matters.22

Others, like Office of War Mobilization director James F. Byrnes, who was sometimes referred to

as the “assistant president,” apparently avoided appearing before congressional committees

during the World War II era, but were in communication with various individual Members of

Congress in leadership positions and served as liaisons between the President and Congress on a

number of war matters.23

Presidential Adviser Testimony

Beginning with the closing years of World War II, examples are provided below of instances

when a presidential adviser—a civilian executive branch official, other than a member of the

traditional Cabinet, who, as part of that official’s responsibilities and activities, consulted with the

President—testified before a congressional committee or subcommittee. Because these

consultations with the President by such an official may be considered by the President to be

privileged and constitutionally protectable, examples are also provided of instances when invited

congressional committee or subcommittee testimony by a presidential adviser was refused. None

of the examples involves testimony or refusal to testify by a former presidential adviser. All

examples are based upon the public record.

•

Jonathan Daniels, Administrative Assistant to the President, White House Office,

appeared before the Senate Committee on Agriculture and Forestry on February

28 and March 7 and 8, 1944, to discuss his involvement in the personnel policy

of the Rural Electrification Administration.24

•

Wallace H. Graham, Physician to the President, White House Office, appeared

before the Senate Committee on Appropriations on January 13, 1948, to discuss

information to which he might have been privy with regard to the commodity

market.25

•

Harry H. Vaughn, Military Aide to the President, White House Office, appeared

before the Senate Committee on Expenditures in Executive Departments (now

Governmental Affairs) on August 30 and 31, 1949, to discuss his personal

involvement in certain government procurement contracts.26

•

Donald S. Dawson, Administrative Assistant to the President, White House

Office, appeared before the Senate Committee on Banking and Currency on May

22

Donald M. Nelson, Arsenal of Democracy: The Story of American War Production (New York: Harcourt, Brace,

1946), pp. 128, 332; Donald H. Riddle, The Truman Committee: A Study in Congressional Responsibility (New

Brunswick, NJ: Rutgers University Press, 1964), pp. 36, 70, 83-84.

23

Herman Miles Somers, Presidential Agency: The Office of War Mobilization and Reconversion (Cambridge, MA:

Harvard University Press, 1950), p. 74.

24

U.S. Congress, Senate Committee on Agriculture and Forestry, Administration of the Rural Electrification Act,

hearings, 78th Cong., 2nd sess. (Washington: GPO, 1944), pp. 611ff, 695ff, 721ff.

25

U.S. Congress, Senate Committee on Appropriations, Speculation in Commodity Markets, hearings, 80th Cong., 2nd

sess. (Washington: GPO, 1948), pp. 49ff.

26

U.S. Congress, Senate Committee on Expenditures in the Executive Departments, Influence in Government

Procurement, hearings, 81st Cong., 1st sess. (Washington: GPO, 1949), pp. 495ff, 563ff.

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

10 and 11, 1951, to discuss allegations he had attempted to “dominate” the

Reconstruction Finance Corporation and influence appointments to that body.27

•

Sherman Adams, Assistant to the President, White House Office, appeared before

the House Committee on Interstate and Foreign Commerce Committee on June

17, 1958, to discuss his involvement with certain lobbyists.28

•

Edward E. David, Jr., Science Adviser to the President, White House Office, and

director, Office of Science and Technology, appeared before the Senate

Committee on Interior and Insular Affairs on June 15, 1971, to discuss the Nixon

Administration’s position on energy policy matters; he appeared again before the

House Committee on Science and Astronautics on June 14, 1972, to discuss

science policy matters relating to Soviet-American cooperation agreements.29

•

Virginia H. Knauer, Special Assistant to the President for Consumer Affairs,

White House Office, and director, Office of Consumer Affairs, appeared before

the House Select Committee on Small Business on June 25, 1971, to discuss

consumer protection and advertising standards.30

•

Jerome H. Jaffe, Special Consultant to the President, White House Office, and

director, Special Action Office for Drug Abuse Prevention, appeared before the

House Committee on Interstate and Foreign Commerce on June 28, August 2,

October 27, and November 8, 1971, to discuss various aspects of the operations

of the Special Action Office.31

•

Peter Flanigan, Assistant to the President, White House Office, appeared before

the Senate Committee on the Judiciary on April 20, 1972, during the course of

hearings on the confirmation of Richard Kleindienst as Attorney General to

discuss his involvement in apparent lobbying activities by the International

Telephone and Telegraph Company.32

•

Bruce A. Kehrli, Special Assistant to the President, White House Office,

appeared before the Senate Select Committee on Presidential Campaign

Activities on May 17, 1973, to discuss matters related to the Watergate incident.33

•

Patrick J. Buchanan, Special Consultant to the President, White House Office,

appeared before the Senate Select Committee on Presidential Campaign

27

U.S. Congress, Senate Committee on Banking and Currency, Study of Reconstruction Finance Corporation,

hearings, 82nd Cong., 1st sess. (Washington: GPO, 1951), pp. 1709ff, 1795ff.

28

U.S. Congress, House Committee on Interstate and Foreign Commerce, Investigation of Regulatory Commissions

and Agencies, hearings, 85th Cong., 2nd sess. (Washington: GPO, 1958), p. 3712 ff.

29

U.S. Congress, Senate Committee on Interior and Insular Affairs, The President’s Energy Message, hearings, 92nd

Cong., 1st sess. (Washington: GPO, 1971), p. 12ff; U.S. Congress, House Committee on Science and Astronautics,

U.S.-U.S.S.R. Cooperative Agreements, hearings, 92nd Cong., 2nd sess (Washington: GPO, 1972), p. 60ff.

30

U.S. Congress, House Select Committee on Small Business, Advertising and Small Business, hearings, 92nd Cong.,

1st sess. (Washington: GPO, 1971), p. 567ff.

31

U.S. Congress, House Committee on Interstate and Foreign Commerce, Special Action Office for Drug Abuse

Prevention, hearings, 92nd Cong., 1st sess. (Washington: GPO, 1971), pp. 171ff, 1037ff, 1443, 1578ff.

32

U.S. Congress, Senate Committee on the Judiciary, Nominations of Richard G. Kleindienst and L. Patrick Gray III,

hearings, 92nd Cong., 2nd sess (Washington: GPO, 1972), p. 1585ff.

33

U.S. Congress, Senate Select Committee on Presidential Campaign Activities, Presidential Campaign Activities of

1972, hearings, 93rd Cong., 1st sess. (Washington: GPO, 1973), p. 75ff.

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Activities on September 26, 1973, to discuss matters related to the Watergate

incident.34

•

Richard M. Harden, Special Assistant to the President, White House Office,

appeared before the Senate Appropriations Subcommittee on Treasury, Postal

Service, and General Government on March 9, 1977, to discuss funds for the

White House Office; he appeared again before the House Appropriations

Subcommittee on Treasury, Postal Service, and General Government on March

15, 1977, to discuss these same matters.35

•

Rose Mary Woods, Personal Secretary to the President, White House Office,

appeared before the Senate Select Committee on Presidential Campaign

Activities on March 22, 1974, to discuss matters related to the Watergate

incident.36

•

J. Frederick Buzhardt, Special Counsel to the President, White House Office,

appeared before the Senate Select Committee on Presidential Campaign

Activities on April 10 and May 7, 1974, to discuss matters related to the

Watergate incident.37

•

Alexander M. Haig, Jr., Staff Coordinator to the President, White House Office,

appeared before the Senate Select Committee on Presidential Campaign

Activities on May 2, and 15, 1974, to discuss matters related to the Watergate

incident.38

•

Leonard Garment, Assistant to the President, White House Office, appeared

before the Senate Select Committee on Presidential Campaign Activities on May

17, 1974, to discuss matters related to the Watergate incident.39

•

Lloyd Cutler, Counsel to the President, White House Office, appeared before the

Senate Judiciary Subcommittee to Investigate the Activities of Individuals

Representing the Interests of Foreign Governments on September 10, 1980, to

discuss efforts by the President’s brother, Billy Carter, to influence the federal

government on behalf of the government of Libya.40

•

Zbigniew Brzezinski, Assistant to the President for National Security Affairs,

White House Office, appeared before the Senate Judiciary Subcommittee to

Investigate the Activities of Individuals Representing the Interests of Foreign

Governments on September 17, 1980, to discuss efforts by the President’s

34

Ibid., p. 3899ff.

U.S. Congress, Senate Committee on Appropriations, Treasury, Postal Service, and General Government

Appropriations: Fiscal Year 1978, hearings, 95th Cong., 1st sess. (Washington: GPO, 1977), p. 1021ff; U.S. Congress,

House Committee on Appropriations, Treasury, Postal Service, and General Government Appropriations for Fiscal

Year 1978, hearings, 95th Cong., 1st sess. (Washington: GPO, 1977), p. 77ff.

36

U.S. Congress, Senate Select Committee on Presidential Campaign Activities, Presidential Campaign Activities of

1972, hearings, 93rd Cong., 2nd sess. (Washington: GPO, 1974), p. 10193ff.

37

Ibid., pp. 10539ff, 10877ff.

38

Ibid., pp. 10849ff, 10998ff.

39

Ibid., p. 11053ff.

40

U.S. Congress, Senate Committee on the Judiciary, Inquiry into the Matter of Billy Carter and Libya, hearings, 96th

Cong., 2nd sess. (Washington: GPO, 1981), p. 1195ff.

35

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

brother, Billy Carter, to influence the federal government on behalf of the

government of Libya.41

•

Samuel Berger, Deputy Assistant to the President for National Security Affairs,

White House Office, appeared before the Senate Committee on Foreign Relations

on May 3, 1994, to provide a briefing on United States policy toward Haiti.42

•

Samuel Berger, Assistant to the President for National Security Affairs, White

House Office, appeared before the Senate Committee on Governmental Affairs

on September 11, 1997, concerning campaign fund-raising practices in

connection with the 1996 federal election campaign.43

•

Lloyd N. Cutler, Special Counsel to the President, White House Office, appeared

before the House Committee on Banking, Finance, and Urban Affairs on July 26,

1994, concerning whether White House aides had inappropriately learned details

of a Resolution Trust Corporation (RTC) investigation of the failed Madison

Guaranty Savings and Loan.44

•

Lisa M. Caputo, Press Secretary to the First Lady, White House Office, appeared

before the House Committee on Banking, Finance, and Urban Affairs on July 28,

1994, concerning whether White House aides had inappropriately learned details

of an RTC investigation of the failed Madison Guaranty Savings and Loan.45

•

W. Neil Eggleston, Associate Counsel to the President, White House Office,

appeared before the House Committee on Banking, Finance, and Urban Affairs

on July 28, 1994, concerning whether White House aides had inappropriately

learned details of an RTC investigation of the failed Madison Guaranty Savings

and Loan.46

•

Mark D. Gearan, Assistant to the President for Communications, appeared before

the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994,

concerning whether White House aides had inappropriately learned details of an

RTC investigation of the failed Madison Guaranty Savings and Loan.47

•

Harold Ickes, Assistant to the President and Deputy Chief of Staff, White House

Office, appeared before the House Committee on Banking, Finance, and Urban

Affairs on July 28, 1994, concerning whether White House aides had

inappropriately learned details of an RTC investigation of the failed Madison

Guaranty Savings and Loan.48

41

Ibid., p. 1339ff.

Congressional Record, Daily Digest, vol. 140, May 3, 1994, p. D245.

43

U.S. Congress, Senate Committee on Governmental Affairs, Investigation of Illegal or Improper Activities in

Connection with the 1996 Federal Election Campaign, hearings, 105th Cong., 1st sess. (Washington: GPO, 1998), p.

204ff.

44

U.S. Congress, House Committee on Banking, Finance, and Urban Affairs, White House Contacts with

Treasury/RTC Officials About “Whitewater”-Related Matters, part 1, hearing, 103rd Cong., 2nd sess. (Washington:

GPO, 1994), p. 12ff.

45

Ibid., part 2, p. 104ff.

46

Ibid., p. 108ff.

47

Ibid., p. 103ff.

48

Ibid., p. 105ff.

42

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9

Presidential Advisers’ Testimony Before Congressional Committees: An Overview

•

Bruce Lindsey, Assistant to the President and Senior Adviser, White House

Office, appeared before the House Committee on Banking, Finance, and Urban

Affairs on July 28, 1994, concerning whether White House aides had

inappropriately learned details of an RTC investigation of the failed Madison

Guaranty Savings and Loan.49

•

John D. Podesta, Assistant to the President and Staff Secretary, White House

Office, appeared before the House Committee on Banking, Finance, and Urban

Affairs on July 28, 1994, concerning whether White House aides had

inappropriately learned details of an RTC investigation of the failed Madison

Guaranty Savings and Loan.50

•

Clifford Sloan, Associate Counsel to the President, White House Office, appeared

before the House Committee on Banking, Finance, and Urban Affairs on July 28,

1994, concerning whether White House aides had inappropriately learned details

of an RTC investigation of the failed Madison Guaranty Savings and Loan.51

•

George R. Stephanopoulos, Senior Policy adviser to the President, appeared

before the House Committee on Banking, Finance, and Urban Affairs on July 28,

1994, concerning whether White House aides had inappropriately learned details

of an RTC investigation of the failed Madison Guaranty Savings and Loan.52

•

Margaret A. Williams, Chief of Staff to the First Lady, White House Office,

appeared before the House Committee on Banking, Finance, and Urban Affairs

on July 28, 1994, concerning whether White House aides had inappropriately

learned details of an RTC investigation of the failed Madison Guaranty Savings

and Loan.53

•

Lloyd N. Cutler, Special Counsel to the President, White House Office, appeared

before the Senate Committee on Banking, Housing, and Urban Affairs on August

5, 1994, concerning whether White House aides had inappropriately learned

details of an RTC investigation of the failed Madison Guaranty Savings and

Loan.54

•

W. Neil Eggleston, Deputy Counsel to the President, White House Office,

appeared before the Senate Committee on Banking, Housing, and Urban Affairs

on August 3, 1994, concerning whether White House aides had inappropriately

learned details of an RTC investigation of the failed Madison Guaranty Savings

and Loan.55

•

Harold Ickes, Assistant to the President and Deputy Chief of Staff, White House

Office, appeared before the Senate Committee on Banking, Housing, and Urban

49

Ibid., p. 100ff.

Ibid., p. 112ff.

51

Ibid., p. 100ff.

52

Ibid., p. 111ff.

53

Ibid., p. 109ff.

54

U.S. Congress, Senate Committee on Banking, Housing, and Urban Affairs, Hearings Relating to Madison Guaranty

S&L and the Whitewater Development Corporation—Washington DC Phase, vol. 4, hearings, 103rd Cong., 2nd sess.

(Washington: GPO, 1995), p. 734ff.

55

Ibid., p. 87ff.

50

Congressional Research Service

10

Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Affairs on August 4, 1994, concerning whether White House aides had

inappropriately learned details of an RTC investigation of the failed Madison

Guaranty Savings and Loan.56

•

Joel I. Klein, Deputy Counsel to the President, appeared before the Senate

Committee on Banking, Housing, and Urban Affairs on August 3, 1994,

concerning whether White House aides had inappropriately learned details of an

RTC investigation of the failed Madison Guaranty Savings and Loan.57

•

Bruce R. Lindsey, Assistant to the President and Senior Adviser, White House

Office, appeared before the Senate Committee on Banking, Housing, and Urban

Affairs on August 4, 1994, concerning whether White House aides had

inappropriately learned details of an RTC investigation of the failed Madison

Guaranty Savings and Loan.58

•

Thomas F. McLarty III, Counselor to the President, White House Office,

appeared before the Senate Committee on Banking, Housing, and Urban Affairs

on August 4, 1994, concerning whether White House aides had inappropriately

learned details of an RTC investigation of the failed Madison Guaranty Savings

and Loan.59

•

Beth Nolan, Associate Counsel to the President, White House Office, appeared

before the Senate Committee on Banking, Housing, and Urban Affairs on August

3, 1994, concerning whether White House aides had inappropriately learned

details of an RTC investigation of the failed Madison Guaranty Savings and

Loan.60

•

John D. Podesta, Assistant to the President and Staff Secretary, White House

Office, appeared before the Senate Committee on Banking, Housing, and Urban

Affairs on August 4, 1994, concerning whether White House aides had

inappropriately learned details of an RTC investigation of the failed Madison

Guaranty Savings and Loan.61

•

Clifford M. Sloan, Associate Counsel to the President, White House Office,

appeared before the Senate Committee on Banking, Housing, and Urban Affairs

on August 3, 1994, concerning whether White House aides had inappropriately

learned details of an RTC investigation of the failed Madison Guaranty Savings

and Loan.62

•

George R. Stephanopoulos, Senior Adviser to the President for Policy and

Strategy, White House Office, appeared before the Senate Committee on

Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether

56

Ibid., p. 353ff.

Ibid., p. 86ff.

58

Ibid., p. 357ff.

59

Ibid., p. 270ff.

60

Ibid., p. 89ff.

61

Ibid., p. 360ff.

62

Ibid., p. 88ff.

57

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

White House aides had inappropriately learned details of an RTC investigation of

the failed Madison Guaranty Savings and Loan.63

•

Margaret A. Williams, Assistant to the President and Chief of Staff to the First

Lady, White House Office, appeared before the Senate Committee on Banking,

Housing, and Urban Affairs on August 4, 1994, concerning whether White House

aides had inappropriately learned details of an RTC investigation of the failed

Madison Guaranty Savings and Loan.64

•

Mark D. Gearan, Assistant to the President and Director of Communications and

Strategic Planning, White House Office, appeared before the Senate Special

Committee to Investigate the Whitewater Development Corporation and Related

Matters on July 25, 1995, concerning whether White House staff had engaged in

improper contacts regarding the Madison Guaranty Saving and Loan Association,

the White Water Development Corporation, and other matters.65

•

Deborah Gorham, Assistant to the Associate Counsel to the President, White

House Office, appeared before the Senate Special Committee to Investigate the

Whitewater Development Corporation and Related Matters on August 1, 1995,

concerning whether White House staff had engaged in improper contacts

regarding the Madison Guaranty Saving and Loan Association, the White Water

Development Corporation, and other matters.66

•

Carolyn C. Huber, Special Assistant to the President and Director of Personal

Correspondence, White House Office, appeared before the Senate Special

Committee to Investigate the Whitewater Development Corporation and Related

Matters on August 3, 1995, and January 18, 1996, concerning whether White

House staff had engaged in improper contacts regarding the Madison Guaranty

Saving and Loan Association, the White Water Development Corporation, and

other matters.67

•

Harold Ickes, Deputy Chief of Staff, White House Office, appeared before the

Senate Special Committee to Investigate the Whitewater Development

Corporation and Related Matters on February 23, 1996, concerning whether

White House staff had engaged in improper contacts regarding the Madison

Guaranty Saving and Loan Association, the White Water Development

Corporation, and other matters.68

•

Evelyn Lieberman, Deputy Press Secretary for Operations, White House Office,

appeared before the Senate Special Committee to Investigate the Whitewater

Development Corporation and Related Matters on July 26, 1995, concerning

whether White House staff had engaged in improper contacts regarding the

63

Ibid., p. 360ff.

Ibid., p. 272ff.

65

Congressional Record, vol. 141, July 25, 1995, p. D493; although the transcripts of the hearings held by the Senate

Special Committee have not been published, a committee list of those who testified before the panel is in the possession

of the author.

66

Ibid., August 1, 1995, p. D519.

67

Ibid., August 3, 1995, p. D532; Ibid., vol. 142, January 18, 1996, p. D10.

68

Ibid., vol. 142, February 23, 1996, p. D39.

64

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Madison Guaranty Saving and Loan Association, the White Water Development

Corporation, and other matters.69

•

Bruce R. Lindsey, Assistant to the President and Deputy Counsel to the President,

White House Office, appeared before the Senate Special Committee to

Investigate the Whitewater Development Corporation and Related Matters on

August 8 and November 28, 1995, and January 16, 1996, concerning whether

White House staff had engaged in improper contacts regarding the Madison

Guaranty Saving and Loan Association, the White Water Development

Corporation, and other matters.70

•

Capricia P. Marshall, Special Assistant to the First Lady, White House Office,

appeared before the Senate Special Committee to Investigate the Whitewater

Development Corporation and Related Matters on February 9, 1996, concerning

whether White House staff had engaged in improper contacts regarding the

Madison Guaranty Saving and Loan Association, the White Water Development

Corporation, and other matters.71

•

Thomas F. McLarty III, Counsel to the President, White House Office, appeared

before the Senate Special Committee to Investigate the Whitewater Development

Corporation and Related Matters on August 7, 1995, concerning whether White

House staff had engaged in improper contacts regarding the Madison Guaranty

Saving and Loan Association, the White Water Development Corporation, and

other matters.72

•

Bobby J. Nash, Assistant to the President and Director of Presidential Personnel,

White House Office, appeared before the Senate Special Committee to

Investigate the Whitewater Development Corporation and Related Matters on

January 31 and April 30, 1996, concerning whether White House staff had

engaged in improper contacts regarding the Madison Guaranty Saving and Loan

Association, the White Water Development Corporation, and other matters.73

•

Stephen R. Neuwirth, Associate Counsel to the President, White House Office,

appeared before the Senate Special Committee to Investigate the Whitewater

Development Corporation and Related Matters on August 3, 1995, concerning

whether White House staff had engaged in improper contacts regarding the

Madison Guaranty Saving and Loan Association, the White Water Development

Corporation, and other matters.74

•

John M. Quinn, Assistant to the President and Chief of Staff to the Vice

President, White House Office, appeared before the Senate Special Committee to

Investigate the Whitewater Development Corporation and Related Matters on

August 7, 1995, concerning whether White House staff had engaged in improper

69

Ibid., vol. 141, July 26, 1995, p. D499.

Ibid., August 8, 1995, p. D547; Ibid., November 28, 1995, p. D747; Ibid., vol. 142, January 16, 1996, p. D10.

71

Ibid., vol. 142, February 9, 196, p. D35.

72

Ibid., vol. 141, August 7, 1995, p. D544.

73

Ibid., vol. 142, January 31, 1996, p. D22; Ibid., April 30, 1996, p. D195.

74

Ibid., vol. 141, August 3, 1995, p. D532.

70

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

contacts regarding the Madison Guaranty Saving and Loan Association, the

White Water Development Corporation, and other matters.75

•

Jane C. Sherburne, Special Counsel to the President, White House Office,

appeared before the Senate Special Committee to Investigate the Whitewater

Development Corporation and Related Matters on November 9, 1995, and

February 9, 1996, concerning whether White House staff had engaged in

improper contacts regarding the Madison Guaranty Saving and Loan Association,

the White Water Development Corporation, and other matters.76

•

Patti Solis, Special Assistant to the President and Director of Scheduling for the

First Lady, appeared before the Senate Special Committee to Investigate the

Whitewater Development Corporation and Related Matters on May 14, 1996,

concerning whether White House staff had engaged in improper contacts

regarding the Madison Guaranty Saving and Loan Association, the White Water

Development Corporation, and other matters.77

•

Patsy L. Thomasson, Deputy Assistant to the President and Assistant Director for

Presidential Personnel, White House Office, appeared before the Senate Special

Committee to Investigate the Whitewater Development Corporation and Related

Matters on July 25, 1995, and May 9, 1996, concerning whether White House

staff had engaged in improper contacts regarding the Madison Guaranty Saving

and Loan Association, the White Water Development Corporation, and other

matters.78

•

Margaret A. Williams, Assistant to the President and Chief of Staff to the First

Lady, White House Office, appeared before the Senate Special Committee to

Investigate the Whitewater Development Corporation and Related Matters on

July 26, November 2, and December 11, 1995, concerning whether White House

staff had engaged in improper contacts regarding the Madison Guaranty Saving

and Loan Association, the White Water Development Corporation, and other

matters.79

•

Charles Easley, Director of the Office of White House Security, White House

Office, appeared before the Senate Committee on the Judiciary on June 28, 1996,

concerning the dissemination of Federal Bureau of Investigation background

investigation reports and other information to the White House.80

•

Lanny Breuer, Special Counsel to the President, White House Office, appeared

before the House Committee on Government Reform and Oversight on

November 7, 1997, concerning White House compliance with committee

subpoenas issued in the course of an investigation into alleged fund-raising

abuses and the funneling of foreign money into political campaigns.81

75

Ibid., August 7, 1995, p. D544.

Ibid., November 9, 1995, p. D721; Ibid., vol. 142, February 9, 1996, p. D35.

77

Ibid., vol. 142, May 14, 1996, p. D236.

78

Ibid., vol. 141, July 25, 1995, p. D493; Ibid., vol. 142, May 9, 1996, p. D227.

79

Ibid., vol. 141, July 26, 1995, p. D499; Ibid., November 2, 1995, p. D707; Ibid., December 11, 1995, p. D774.

80

Ibid., vol. 142, June 28, 1996, p. D362.

81

U.S. Congress, House Committee on Government Reform and Oversight, White House Compliance with Committee

(continued...)

76

Congressional Research Service

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

•

Cheryl Mills, Deputy Assistant to the President and Deputy Counsel to the

President, White House Office, appeared before the House Committee on

Government Reform and Oversight on November 6 and 7, 1997, concerning

White House compliance with committee subpoenas issued in the course of an

investigation into alleged fund-raising abuses and the funneling of foreign money

into political campaigns.82

•

Dimitri Nionakis, Associate Counsel to the President, White House Office,

appeared before the House Committee on Government Reform and Oversight on

November 7, 1997, concerning White House compliance with committee

subpoenas issued in the course of an investigation into alleged fund-raising

abuses and the funneling of foreign money into political campaigns.83

•

Charles F. C. Ruff, Counsel to the President, White House Office, appeared

before the House Committee on Government Reform and Oversight on

November 6 and 7, 1997, concerning White House compliance with committee

subpoenas issued in the course of an investigation into alleged fund-raising

abuses and the funneling of foreign money into political campaigns.84

•

Nancy Heinreich, Deputy Assistant to the President for Appointments and

Scheduling, White House Office, appeared before the House Committee on

Government Reform and Oversight on November 13, 1997, concerning the

White House access and political campaign donations of Johnny Chung.85

•

Mark Lindsay, Assistant to the President and Director of White House

Management and Administration, White House Office, appeared before the

House Committee on Government Reform on March 23, 2000, concerning White

House mismanagement of its e-mail system and e-mails subpoenaed by the

committee.86

•

Dimitri Nionakis, Associate Counsel to the President, appeared before the House

Committee on Government Reform on May 24, 2000, concerning White House

mismanagement of its e-mail system and e-mails subpoenaed by the committee.87

•

Beth Nolan, Counsel to the President, White House Office, appeared before the

House Committee on Government Reform on March 30 and May 4, 2000,

concerning White House mismanagement of its e-mail system and e-mails

subpoenaed by the committee.88

(...continued)

Subpoenas, hearings, 105th Cong., 1st sess. (Washington: GPO, 1998), p. 219ff.

82

Ibid., pp. 51ff, 157ff.

83

Ibid., p. 218ff.

84

Ibid., pp. 44ff, 152f.

85

U.S. Congress, House Committee on Government Reform and Oversight, Johnny Chung: His Unusual Access to the

White House, His Political Donations, and Related Matters, hearings, 105th Cong., 1st sess. (Washington: GPO, 1998),

p. 705ff.

86

U.S. Congress, House Committee on Government Reform, Missing White House E-mails: Mismanagement of

Subpoenaed Records, hearings, 106th Cong., 2nd sess. (Washington: GPO, 2001), p. 137ff.

87

Ibid., p. 769ff.

88

Ibid., pp. 262ff, 769ff.

Congressional Research Service

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the Senate Committee on Governmental Affairs on June

20, 2002, concerning the proposed Department of Homeland Security.89

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the House Committee on Government Reform on June

20, 2002, concerning the proposed Department of Homeland Security.90

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the House Committee on Energy and Commerce on June

26, 2002, concerning the proposed Department of Homeland Security.91

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the Senate Committee on the Judiciary on June 26, 2002,

concerning the proposed Department of Homeland Security.92

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the House Committee on the Judiciary on June 26, 2002,

concerning the proposed Department of Homeland Security.93

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the Senate Committee on Environment and Public Works

on July 10, 2002, concerning the proposed Department of Homeland Security.94

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the House Select Committee on Homeland Security on

July 15, 2002, concerning the proposed Department of Homeland Security.95

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the Senate Committee on Health, Education, Labor, and

Pensions on July 16, 2002, concerning the proposed Department of Homeland

Security.96

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, appeared before the Senate Committee on Agriculture, Nutrition, and

Forestry on July 17, 2002, concerning the proposed Department of Homeland

Security.97

89

U.S. Congress, Senate Committee on Governmental Affairs, President Bush’s Proposal to Create a Department of

Homeland Security, hearing, 107th Cong., 2nd sess. (Washington: GPO, 2002), p. 25ff.

90

U.S. Congress, House Committee on Government Reform, The Department of Homeland Security: An Overview of

the President’s Proposal, hearing, 107th Cong., 2nd sess. (Washington: GPO, 2002), p. 85ff.

91

U.S. Congress, House Committee on Energy and Commerce, Creating the Department of Homeland Security:

Consideration of the Administration’s Proposal, hearings, 107th Cong., 2nd sess. (Washington: GPO, 2002), p. 14ff.

92

Congressional Record, v. 148, June 26, 2002, p. D687.

93

U.S. Congress, House Committee on the Judiciary, Homeland Security Act of 2002, hearing, 107th Cong. 2nd sess.

(Washington: GPO, 2002), p. 5ff.

94

Congressional Record, v. 148, July 10, 2002, p. D730.

95

U.S. Congress, House Select Committee on Homeland Security, H.R. 5005, the Homeland Security Act of 2002,

Days 1 and 2, hearings, 107th Cong., 2nd sess. (Washington: GPO, 2002), p. 7ff.

96

U.S. Congress, Senate Committee on Health, Education, Labor, and Pensions, Homeland Security, hearing, 107th

Cong., 2nd sess. (Washington: GPO, 2002), p. 8ff.

97

Congressional Record, v. 148, July 17, 2002, p. D768.

Congressional Research Service

16

Presidential Advisers’ Testimony Before Congressional Committees: An Overview

•

J. Scott Jennings, Special Assistant to the President and Deputy White House

Political Director, appeared before the Senate Committee on the Judiciary on

August 2, 2007, concerning the dismissal of United States Attorneys following

issuance by the committee of a subpoena compelling such testimony.98

•

Alan R. Swendiman, Special Assistant to the President and Director, Office of

Administration, Executive Office of the President, and Theresa Payton, Chief

Information Officer, Office of Administration, Executive Office of the President,

appeared before the House Committee on Oversight and Government Reform on

February 26, 2008, concerning views on issues regarding missing White House

electronic records and related matters.99

•

Paul A. Volcker, Chairman of the President’s Economic Advisory Board,

appeared before the Joint Economic Committee on February 26, 2009,

concerning recommendations for financial regulatory system reform.100

•

Paul A. Volcker, Chairman of the President’s Economic Recovery Advisory

Board, appeared before the Senate Committee on Banking, Housing, and Urban

Affairs on February 2, 2010, concerning Administration financial regulatory

system reform proposals including the “Volcker Rule.”101

•

Brook M. Colangelo, Chief Information Officer, Office of Administration,

Executive Office of the President, appeared before the House Committee on

Oversight and Government Reform on May 3, 2011, regarding the technical

systems in place to maintain electronic records at the Executive Office of the

President.102

•

Paul A. Volcker, Chairman of the President’s Economic Recovery Advisory

Board, appeared before the Senate Committee on Banking, Housing, and Urban

Affairs Subcommittee on Financial Institutions and Consumer Protection on May

9, 2012, concerning perspectives on concerns about large financial institutions

which failures pose systemic threats to the financial system.103

98

Paul Kane, “Bush Aide Addresses Missing RNC E-Mails,” Washington Post, August 3, 2007, p. A2; Neil A. Lewis,

“White House Aide Won’t Answer Questions of a Senate Panel,” New York Times, August 3, 2007, p. A13. Sara M.

Taylor, who had been Deputy Assistant to the President and Director of Political Affairs, appeared before the Senate

Committee on the Judiciary on July 11, 2007, also concerning the dismissal of United States Attorneys, and also

following issuance by the committee of a subpoena.

99

U.S. Congress, House Committee on Oversight and Government Reform, Electronic Records Preservation at the

White House, hearings, 110th Cong., 2nd sess., February 26, 2008, (Washington, DC: GPO, 2008).

100

U.S. Congress, Joint Economic Committee, Restoring the Economy: Strategies for Short-Term and Long-Term

Change, hearings, 111th Cong., 1st sess., February 26, 2009, S. Hrg. 111-110 (Washington, DC: GPO, 2009).

101

U.S. Congress, Senate Committee on Banking, Housing, and Urban Affairs, Prohibiting Certain High-Risk

Investment Activities by Banks and Bank Holding Companies, hearings, 111th Cong., 2nd sess., February 2, 2010, S.

Hrg. 111-771 (Washington, DC: GPO, 2010).

102

U.S. Congress, House Committee on Oversight and Government Reform, Presidential Records in the New

Millennium: Updating the Presidential Records Act and Other Federal Recordkeeping Statues To Improve Electronic

Records Preservation, hearings, 112th Cong., 1st sess., May 3, 2011, (Washington, DC: GPO, 2011).

103

U.S. Congress, Senate Committee on Banking, Housing, and Urban Affairs Subcommittee on Financial Institutions

and Consumer Protection, Is Simpler Better? Limiting Federal Support for Financial Institutions, hearings, 112th

Cong., 2nd sess., May 9, 2012, S. Hrg. 112-679 (Washington, DC: GPO, 2012).

Congressional Research Service

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

•

Todd Park, U.S. Chief Technology Officer, Office of Science and Technology,

Executive Office of the President, and Steven VanRoekel, Federal Chief

Information Officer and Administrator, E-Government and Information

Technology, Office of Management and Budget appeared before the House

Committee on Oversight and Government Reform on November 13, 2013,

regarding the implementation of federal health care marketplace websites.104

•

Jennifer O’Connor, Attorney, Office of the White House Counsel, appeared

before the House Committee on Oversight and Government Reform on June 24,

2014, concerning efforts to provide emails and other documents requested by

Congress related to process and review of applications of organizations applying

for tax-exempt status, including the emails of Lois Lerner, and related matters.105

In a somewhat different case, Condoleezza Rice, Assistant to the President for National Security

Affairs, after initially declining to testify, appeared before the National Commission on Terrorist

Attacks Upon the United States on April 8, 2004, concerning the anti-terrorism efforts of the Bush

Administration prior to the September 11, 2001, attacks upon the World Trade Center and the

Pentagon.106 Some viewed the commission as an independent entity because its membership was

appointed by the President and the party leaders of Congress, while others noted that the panel’s

authorizing statute established it in the legislative branch.107 On June 26, 2008, David S.

Addington, Chief of Staff for Vice President Richard Cheney, testified before a subcommittee of

the House Committee on the Judiciary concerning legal justification for harsh interrogation

methods.108

Presidential Adviser Testimony Refused

Beginning with the years immediately after the conclusion of World War II, examples are

provided below of instances when invited congressional committee or subcommittee testimony

by a presidential adviser was refused. All examples are based upon the public record.

•

John R. Steelman, Assistant to the President, White House Office, declined in

March 1948 to appear before a special subcommittee of the House Committee on

Education and Labor.109

•

Herbert G. Klein, Director of White House Communications, White House

Office, declined on September 21, 1971, to appear before the Senate Judiciary

Subcommittee on Constitutional Rights.110

104

U.S. Congress, House Committee on Oversight and Government Reform, Obamacare Implementation: The Rollout

of HealthCare.gov, hearings, 113th Cong., 1st sess., November 13, 2013, (Washington, DC: GPO, 2014).

105

U.S. Congress, House Committee on Oversight and Government Reform, IRS Obstruction: Lois Lerner’s Missing

Emails, Part II, hearings, 113th Cong., 2nd sess., June 24, 2014, (Washington, DC: GPO, 2014).

106

James G. Lakely, “Al Qaeda a Target Early, Rice Says,” Washington Times, April 9, 2004, pp. A1, A13; Dan Eggen

and Walter Pincus, “Rice Defends Pre-9/11 Anti-Terrorism Efforts: U.S. ‘Was Not on War Footing,’ She Says,”

Washington Post, April 9, 2004, pp. A1, A10.

107

See 116 Stat. 2408.

108

Dan Eggen, “Bush Policy Authors Defend Their Actions,” Washington Post, June 27, 2008, p. A2; Scott Shane,

“Two Testify on Memo Spelling Out Interrogation,” New York Times, June 27, 2008, p. A15.

109

U.S. Congress, House Committee on Education and Labor, Investigation of the GSA Strike, hearings, 80th Cong., 2nd

sess. (Washington: GPO, 1948), pp. 347-353.

Congressional Research Service

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

•

Frederick V. Malek, Special Assistant to the President, White House Office, and

Charles W. Colson, Special Counsel to the President, White House Office,

declined in December 1971 to appear before the Senate Judiciary Subcommittee

on Constitutional Rights.111

•

Henry A. Kissinger, Assistant to the President for National Security Affairs,

White House Office, declined on February 28, 1972, to appear before the Senate

Committee on Foreign Relations.112

•

David Young, Special Assistant to the National Security Council, declined on

April 29, 1972, to appear before the House Government Operations

Subcommittee on Foreign Operations and Government Information.113

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, declined March 15 and April 4, 2002, requests to appear before the Senate

Committee on Appropriations.114

•

Thomas J. Ridge, Assistant to the President for Homeland Security, White House

Office, after declining to appear before the House Appropriations Subcommittee

on Treasury, Postal Service, and General Government in late March, agreed to an

informal, closed, April 10, 2002, meeting of subcommittee members.115

•

Douglas Badger, Special Assistant to the President for Economic Policy, Office

of Policy Development, declined on March 31, 2004, to appear before the House

Committee on Ways and Means.116

•

Karl C. Rove, Assistant to the President and Deputy Chief of Staff, did not appear

before the Senate Committee on the Judiciary on August 2, 2007, concerning the

(...continued)

110

U.S. Congress, Senate Committee on the Judiciary, Freedom of the Press, hearings, 92nd Cong., 1st and 2nd sess.

(Washington: GPO, 1972), p. 1299.

111

Ibid., p. 425.

112

Congressional Record, vol. 118, March 28, 1972, p. 10471; Kissinger “occasionally talked on the phone, or

privately met, with top legislative leaders, briefed them at pro forma consultations before major military actions or on

the occasion of big diplomatic agreements, and once in a while informally briefed larger congressional groups.

Kissinger would go to the Hill, incognito as it were, a couple of times a year and he might entertain a congressional

group in the OEOB [Old Executive Office Building] maybe once a year. In some of the sessions that did occur the

Congress was misinformed on key issues ... in the cases of the Vietnam peace agreement and the first SALT

agreements with the Soviets.” John Prados, Keepers of the Keys: A History of the National Security Council from

Truman to Bush (New York: William Morrow, 1991), p. 309.

113

U.S. Congress, House Committee on Government Operations, U.S. Government Information Policies and

Practices—Security Classification Problems Involving (b)(1) of the Freedom of Information Act, hearings, 92nd Cong.,

2nd sess. (Washington: GPO, 1972), p. 2453.

114

Associated Press, “Ridge Won’t Tell Senate His Views on the War,” Washington Times, March 5, 2002, p. A3;

(name redacted), “Congressional Hearings: Letter to Ridge Is Latest Jab in Fight Over Balance of Powers,” New York

Times, March 5, 2002, p. A8; Mark Preston, “Byrd Holds Firm,” Roll Call, April 18, 2002, pp. 1, 26, 28.

115

George Archibald, “Panel Ties Funding to Ridge Testimony,” Washington Times, March 22, 2002, pp. A1, A14;

George Archibald, “White House Mollifies House Panel,” Washington Times, March 23, 2002, A1, A4; Elizabeth

Becker, “Domestic Security: Ridge Briefs House Panel, but Discord Is Not Resolved,” New York Times, April 11,

2002, p. A17.

116

Amy Goldstein, “Democrats Ask Bush Aides to Explain Role on Medicare Cost,” Washington Post, March 20,

2004, p. A5; “Ways and Means Republicans Allow Scully, White House to Avoid Answering Questions on Medicare

Estimate Coverup,” News Release from Rep. Charles B. Rangel, Committee on Ways and Means, April 1, 2004.

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dismissal of United States Attorneys, following the issuance by the committee of

a subpoena compelling his testimony on that date.117

•

David Simas, Assistant to the President and Director of Political Strategy and

Outreach, Office of Political Strategy and Outreach, declined to appear before the

House Committee on Oversight and Government Reform on July 1, 2014,

concerning the operation of the White House Office of Political Strategy,

following the issuance of a subpoena by that committee.118

Weighing Congress’s Right to Executive Branch

Information with Executive Claims of

Absolute Immunity

Congress has a constitutionally rooted right of access to the information it needs to perform its

Article I legislative and oversight functions.119 Generally, a congressional committee with

jurisdiction over the subject matter, which is conducting an authorized investigation for

117

U.S. Congress, Senate Committee on the Judiciary, Preserving Prosecutorial Independence: Is the Department of

Justice Politicizing the Hiring and Firing of U.S. Attorneys? 110th Cong., 1st sess., S.Hrg. 110-495 (Washington: GPO,

2008), p. 459. Rove resigned later that month. Harriet Miers, who had been Counsel to the President, did not appear

before the House Committee on the Judiciary on July 12, 2007, concerning the dismissal of United States Attorneys,

following the issuance of a subpoena compelling her testimony on that date. U.S. Congress, House Committee on the

Judiciary, Resolution Recommending that the House of Representatives Find Harriet Miers and Joshua Bolten, Chief of

Staff, White House, in Contempt of Congress for Refusal to Comply with Subpoenas Duly Issued by the Committee on

the Judiciary, 110th Cong., 1st sess., November 5, 2007, H.Rept. 110-423, p. 3. The House later adopted a resolution

finding Miers in contempt of Congress (H.Res. 979, 110th Congress.) Rove and Miers were interviewed by the

committee during the 111th Congress. Miers met with the committee on June 15, 2009, and Rove met with the

committee on July 7 and July 30, 2009. (See http://judiciary.house.gov/issues/issues_WHInterviews.html.)

118

For news accounts, see Shane Goldmacher, “Darrell Issa Subpoenas Top Obama Political Aide,” Government

Executive, July 11, 2014, available at http://www.govexec.com/oversight/2014/07/darrell-issa-subpoenas-top-obamapolitical-aide/88516/; Steven T. Dennis, “White House Cites Immunity, Rebuffs Issa Subpoena for Simas,” CQ.com,

July 15, 2014, available at http://www.cq.com/doc/news-4515754?7&search=jBFK47Vc; David Michaels, “Obama

Administration’s Immunity Claim Rejected by Oversight Panel,” CQ.com, July 25, 2014, available at

http://www.cq.com/doc/committees-2014072500319014?9&search=jBFK47Vc; Steven T. Dennis, “Simas Ignores

Subpoena Again as White House Defies Issa,” CQ.com, July 25, 2014, available at http://www.cq.com/doc/news4524005?16&search=jBFK47Vc. For a Justice Department legal opinion regarding this request for testimony, see U.S.

Department of Justice, Office of Legal Counsel, “Immunity of the Assistant to the President and Director of the Office

of Political Strategy and Outreach From Congressional Subpoena,” July 15, 2014, available at http://www.justice.gov/

sites/default/files/opinions/attachments/2014/07/25/simas-immunity-final_1.pdf.

119

See McGrain v. Daugherty, 273 U.S. 135, 177, 181-182 (1927). In a frequently quoted passage, the Court explained,

at p. 174: A legislative body cannot legislate wisely or effectively in the absence of information respecting the

conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess

the requisite information—which not infrequently is true—recourse must be had to others who do possess it.

Experience has taught that mere requests for such information often are unavailing, and also that information which is

volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.

All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with

enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—

indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional

provisions which commit the legislative function to the two houses are intended to include this attribute to the end that

the function may be effectively exercised. See also Watkins v. United States, 354 U.S. 178, 200 note 33 (1957). For a

more detailed discussion of the constitutional and statutory authority for congressional access to information and for an

examination of related issues, see CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al.

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legislative or oversight purposes, has a right to information held by the executive branch in the

absence of either a valid claim of constitutional privilege by the executive or a statutory provision

whereby Congress has limited its constitutional right to information.120

Given the tradition of comity between the executive and legislative branches, Congress often

elects not to request the appearance of presidential aides.121 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.122 These two grounds for declining to

comply with congressional requests for the appearance of presidential aides overlap, and it is

sometimes difficult to determine which argument is being raised.123

The executive branch has articulated a long-standing position that “the President’s immediate

advisers are absolutely immune from congressional testimonial process.”124 This principle of

absolute immunity would prevent Congress from compelling a presidential adviser to appear

before a committee for purposes of providing testimony.

The executive branch position, as articulated in various opinions of the Department of Justice

Office of Legal Counsel, is grounded in the separation of powers and legal principles underlying

executive privilege.125 Specifically, the DOJ argues that because the President must be immune

from compelled congressional testimony, his close presidential advisers, who “function as the

President’s alter ego,” must also be immune from compelled testimony.126 To hold otherwise, the

DOJ argues, would interfere with the President’s “discharge of his constitutional functions” in

two significant ways.127 First, permitting Congress to compel testimony from close presidential

advisers would “threaten the President’s independence and autonomy from Congress” in that

committees could “harass ... advisers in an effort to influence their conduct” and “promote a

120

See Wilkinson v. United States, 365 U.S. 399, 408-409 (1961); Congressional Oversight Manual, supra note 117.

(name redacted), “White House Aides Testifying Before Congress,” Presidential Studies Quarterly, vol. 27, winter

1997, p. 151.

122

Ibid., pp. 140-141. President Richard M. Nixon contended: “Under the doctrine of separation of powers, the manner

in which the President personally exercises his assigned executive powers is not subject to questioning by another

branch of Government. If the President is not subject to such questioning, it is equally appropriate that members of his

staff not be so questioned, for their roles are in effect an extension of the Presidency.” Ibid. p. 140.

123

In two instances during the Carter Administration, when presidential advisers declined to appear before committees,

objections were raised which are difficult to categorize. See Mark J. Rozell, “Executive Privilege and the Modern

Presidents: In Nixon’s Shadow,” Minnesota Law Review, vol. 83, May 1999, pp. 1069, 1090-1091, 1092. The Bush

Administration resisted congressional attempts to secure the testimony of Tom Ridge, Assistant to the President for

Homeland Security. The Administration invoked the separation of powers doctrine (“Ridge Will Not Give Congress

His Testimony,” USA Today, March 25, 2002, p. 7A), and stated that Ridge would not appear because he was a

presidential adviser, not a Cabinet officer, and because he was not confirmed by the Senate. The Bush Administration

also contended that the President, rather than Congress, oversees a presidential adviser who is not confirmed by the

Senate. “A Nation Challenged: Congressional Hearings,” New York Times, March 5, 2002, p. 8; “Congress, White

House Fight Over Ridge Status,” Washington Post, March 21, 2002, p. A33. However, some Members argued that

Ridge’s position was new and unique, and that he had influence over multiple departments whose budgets were subject

to Congress’s power of the purse. “Backlash Grows Against White House Secrecy,” Christian Science Monitor, March

25, 2002, p. 3.

124

See, Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach from

Congressional Subpoena, Op. O.L.C. (July 15, 2014) at 1. The opinion cites supporting DOJ memoranda dating to

1972. Ibid. fn. 2.

125

Ibid. p. 3.

126

Ibid.

127

Ibid.

121

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

perception that the President is subordinate to Congress.”128 Second, compelled testimony by

presidential advisers would “threaten executive branch confidentiality, which is necessary (among

other things) to ensure that the President can obtain the type of sound and candid advice that is

essential to the effective discharge of his constitutional duties.”129 Although conceding that

advisers could appear before Congress and invoke executive privilege with respect to specific

questions, the DOJ finds that procedure insufficient to protect executive branch autonomy. “In the

heat of the moment, without the opportunity for careful reflection,” the executive branch argues,

“the adviser might have difficulty confining his remarks to those that do not reveal [] sensitive

information.”130

With respect to the many instances in which close presidential advisers have testified before

Congress, the DOJ asserts that those officials have done so voluntarily “as an accommodation to a

congressional committee’s legitimate interest in investigating certain activities of the Executive

Branch.”131 The DOJ argues that voluntary testimony, as opposed to compelled testimony, does

not trigger the same concerns under the separation of powers, nor do examples of voluntary

testimony “undermine the Executive Branch’s long-established position on absolute immunity.”132

No decision of the Supreme Court resolves the question of whether there are any circumstances in

which close presidential advisers can refuse a subpoena to appear before a congressional

committee for purposes of providing testimony. However, in Committee on the Judiciary v. Miers,

the U.S. District Court for the District of Columbia rejected the long-standing executive branch

position and held that close presidential advisers are not immune from compulsory congressional

testimony.133

The Miers case arose out of an investigation by the House Committee on the Judiciary into the

termination and replacement of a number of U.S. Attorneys during the George W. Bush

Administration.134 In the course of the investigation, the committee issued a subpoena to former

White House Counsel Harriet Miers, seeking her testimony on the matter. Following a legal

conclusion from the DOJ that “Ms. Miers is immune from compulsion to testify before the

Committee on this matter,” Miers informed the Committee that she would not appear.135 The

Committee subsequently filed a civil lawsuit asking a federal court to order Miers to comply with

the subpoena.

The Miers opinion represents a clear repudiation of the executive view of absolute immunity for

close presidential advisers. The district court strongly disagreed with the executive’s arguments,

noting that:

128

Ibid.

Ibid. pp.3-4.

130

Ibid. p. 4.

131

Ibid. fn 2.

132

Ibid.

133

558 F. Supp 2d 53 (D.D.C. 2008).

134

For a more detailed discussion of the investigation leading up to the Miers case see, CRS Report R42670,

Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by (name redacted) and

(name redacted).

135

Memorandum for the Counsel to the President Re: Immunity of Former Counsel to the President from Compelled

Congressional Testimony from Principal Deputy Assistant Attorney General, Office Legal Counsel, DOJ, dated July

10, 2007.

129

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The Executive cannot identify a single judicial opinion that recognizes absolute immunity for

senior presidential advisors in this or any other context. That simple yet critical fact bears

repeating: the asserted absolute immunity claim here is entirely unsupported by existing case

law. In fact, there is Supreme Court authority that is all but conclusive on this question and

that powerfully suggests that such advisors do not enjoy absolute immunity. The Court

therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.136

Instead, the court held that Miers “must appear before the Committee to provide testimony, and

invoke executive privilege where appropriate.”137 In reaching its conclusion, the district court also

rejected the argument that close advisers should be considered the “alter ego” of the President.

The court noted that this line of argument had been foreclosed by the Supreme Court in the case

of Harlow v. Fitzgerald138—a civil suit for damages in which the Court expressly refused to

accord presidential advisers with absolute immunity.139 Indeed, the district court in Miers went

further and, in fact, questioned whether the president himself was absolutely immune from

compelled congressional testimony.140 Miers did, however, leave open the question of whether

presidential advisers engaged in “special functions” relating to “national security or foreign

policy” may be accorded some form of immunity from compelled testimony.141

The district court likewise rejected that argument that the absence of absolute immunity would

create a “chilling effect” on the candid and frank advice advisers would provide to the President.

The court reasoned that the ability of an adviser to appear, and invoke executive privilege in

response to specific questioning, “should serve as an effective check against public disclosure of

truly privileged communications, thereby mitigating any adverse impact on the quality of advice

that the President receives.”142

The reasoning adopted by the Miers court may have significant influence in that it so clearly

repudiated the executive’s claim of absolute immunity for presidential advisers, while reaffirming

Congress’s essential role in conducting oversight and enforcing its own subpoenas. However, as a

district court decision, the Miers opinion has limited precedential value. For its part, the executive

branch maintains that Miers was wrongly decided.143 Consistent with that conclusion, DOJ

continues to adhere to its position that close presidential advisers have absolute immunity from

compelled testimony by Congress.144

136

Miers, 558 F. Supp. 2d at 99.

Ibid. pp. 106-07.

138

457 U.S. 800 (1982).

139

Miers, at 101. (“There is nothing left to the Executive’s primary argument in light of Harlow.”)

140

Ibid pp. 102-03 (“Significantly, although the Supreme Court has established that the President is absolutely immune

from civil suits arising out of his official actions, even the President may not be absolutely immune from compulsory

process more generally ... Congress’s use of (and need for vindication of) its subpoena power in this case is no less

legitimate or important than was the grand jury’s in United States v. Nixon. Both involve core functions of a co-equal

branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a

presumptive, rather than an absolute, privilege here. And it is certainly the case that if the President is entitled only to a

presumptive privilege, his close advisors cannot hold the superior card of absolute immunity.”)(citations omitted).

141

Ibid. pp.101-02 (“[T]here is no suggestion whatsoever that the decisions in question here involve national security

or other particularly sensitive function that Harlow indicates may warrant absolute immunity.”).

142

Ibid. p. 102.

143

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

Congressional Subpoena, Op. O.L.C. (July 15, 2014) at 9.

144

Ibid.

137

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Presidential Advisers’ Testimony Before Congressional Committees: An Overview

Procedure for Obtaining

Executive Branch Testimony

A congressional committee may request (informally or by a letter from the committee chair,

perhaps cosigned by the ranking Member) or demand (pursuant to subpoena145) the testimony of a

presidential adviser. However, Congress may encounter legal and political problems in attempting

to enforce a subpoena to a presidential adviser.

Conflicts concerning congressional requests or demands for executive branch testimony or

documents often involve extensive negotiations, and may be resolved by some form of

compromise as to, inter alia, the scope of the testimony or information to be provided to

Congress.146 If the executive branch fails to comply with a committee subpoena, and if

negotiations do not resolve the matter, the committee may employ Congress’s inherent contempt

authority (involving a trial at the bar of the Senate or House) or statutory criminal contempt

authority in an effort to obtain the needed information.147 Both of these procedures are somewhat

cumbersome, and their use may not result in the production of the information that is sought.148

When faced with a refusal by the executive branch to comply with a demand for information,

Congress has several alternatives to inherent and statutory contempt, although these alternatives

are not without their own limitations.149 One approach is to seek declaratory or other relief in the

145

Standing committees of both the Senate (Rule XXVI(1)) and the House (Rule XI, cl. 2(m)) have subpoena power.

A presidential adviser may provide information to a committee in a hearing (answering questions of members of a

committee under applicable rules of the House or the committee), in an informal briefing (with only the chairman or

with a few or all committee members), or in a deposition. See, e.g., Fisher, “White House Aides Testifying before

Congress,” p. 139. The appearance of a presidential adviser before a committee may be open to the public or it may be

closed. His testimony at a hearing may be sworn or unsworn.

In response to congressional attempts to secure the testimony of Ridge (see supra note 113), Ridge offered to brief

Members privately, but some Members objected. Subsequently, Ridge offered to brief Members of both the Senate and

the House informally, but in public. Ridge argued that his proposal would satisfy congressional needs but “avoid the

setting of a precedent that could undermine the constitutional separation of powers and the long-standing traditions and

practices of both Congress and the executive branch.” “A Nation Challenged: The Security Director,” New York Times,

March 26, 2002, p. 13. Ridge said that he would meet with Members in “briefings” but not in “hearings.” (name redacted),

The Politics of Executive Privilege (Durham, NC: Carolina Academic Press, 2004), p. 226.

Although the focus of this report is on issues raised by the testimony of presidential advisers before congressional

committees, their testimony before other legislative branch entities raises similar issues. Condoleezza Rice, Assistant to

the President for National Security Affairs, appeared twice before the National Commission on Terrorist Attacks Upon

the United States. The commission, which reported to the Congress and the President, may be viewed as a legislative

body because it was established in the legislative branch and because nine of its 10 members were appointed by the

congressional leadership. Act of November 27, 2002, P.L. 107-306, 116 Stat. 2408 (amended 2004), 6 U.S.C. § 101

note. Rice was interviewed privately by the commission on February 7, 2004. “Refusal to Testify Has Precedent,”

Washington Post, March 27, 2004, p. A10. Although the Bush Administration at first argued that her appearance in

public might prevent the President from receiving the “best and most candid possible advice,” she subsequently

testified in public and under oath on April 8, 2004. “Talking About Secrets,” Legal Times, April 19, 2004, p. 66.

147

Both the inherent contempt power and the statutory procedure (2 U.S.C. 192, 194) are outlined in CRS Report

RL30240, Congressional Oversight Manual, by (name redacted) et al. The statutory civil contempt procedure which

may be used by Senate committees is not applicable in the case of an executive branch official. 28 U.S.C. 1365.

148

See Randall K. Miller, “Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege,”

vol. 81, Minnesota Law Review, February 1997, pp. 631, 658.

149

For an overview and evaluation of the alternatives, see J. Richard Broughton, “Paying Ambition’s Debt: Can the

Separation of Powers Tame the Impetuous Vortex of Congressional Investigations?,” vol. 21, Whittier Law Review,

(continued...)

146

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courts. Previous attempts to seek judicial resolution of interbranch conflicts over information

access issues have encountered procedural obstacles and have demonstrated the reluctance of the

courts to resolve sensitive separation of powers issues.150 Other approaches may include, inter

alia, appropriations riders, impeachment, and a delay in the confirmation of presidential

appointees.151

In addition to the options generally available in the event of a refusal by the executive to provide

information sought by Congress, when a presidential adviser who is not serving in a department

or agency established by law declines to testify before a committee, Congress might wish to enact

legislation establishing the entity and making the head of the entity subject to Senate

confirmation.152

(...continued)

2000, pp. 797, 825-832. See also Roberto Iraola, “Congressional Oversight, Executive Privilege, and Requests for

Information Relating to Federal Criminal Investigations and Prosecutions,” vol. 87, Iowa Law Review, August 2002, p.

1559ff.

150

Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); United States v. AT&T, 551 F.2d 384 (D.C. Cir.

1976) and 567 F.2d 121 (D.C. Cir. 1977) (second opinion); United States v. House of Representatives, 556 F. Supp.

150 (D.D.C. 1983).

151

See, e.g., Broughton, “Paying Ambition’s Debt: Can the Separation of Powers Tame the Impetuous Vortex of

Congressional Investigations?,” pp. 831-835; (name redacted),

Constitutional Conflicts between Congress and the

President, 4th ed (Lawrence, KS: University Press of Kansas, 1997), pp. 183-184. In response to the resistance of the

Bush Administration to congressional attempts to obtain the testimony of Ridge (see supra note 111), it was reported

that the House Appropriations Committee considered a delay in acting on the appropriation for the Executive Office of

the President. “Panel Ties Funding to Ridge Testimony,” Washington Times, March 22, 2002, pp. A1, A14.

152

As discussed above (see supra p. 27), an executive branch official who administers a department or agency

established by law is generally expected to testify before committees, in contrast to an individual whose sole

responsibility is to advise the President. Some presidential advisers are in units of the Executive Office of the President

established by law, and are also subject to confirmation by the Senate. See, e.g., 15 U.S.C. 1023 (Council of Economic

Advisers); 42 U.S.C. 4321, 4372 (Office of Environmental Quality); 42 U.S.C. 6611, 6612 (Office of Science and

Technology Policy); 31 U.S.C. 501, 502 (Office of Management and Budget (OMB)).

To increase its oversight of OMB, Congress passed legislation subjecting the Director to Senate confirmation,

notwithstanding the objections of the Nixon Administration. See Donald S. Onley, “Treading on Sacred Ground:

Congress’s Power to Subject White House Advisers to Senate Confirmation,” vol. 37, William & Mary Law Review,

Spring 1996, pp. 1183-1184. Congress’ constitutional authority over offices and officeholders is limited by separation

of powers considerations and by constitutional powers of the President. See ibid., pp. 1187-1214. See also AaronAndrew Bruhl, “Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of

Proceedings Clause,” vol. 19, Journal of Law & Politics, Fall 2003, pp. 345, 375 note 238. By subjecting a presidential

adviser to confirmation by the Senate, Congress may obtain practical, although not necessarily legal leverage, in

attempting to secure his testimony. See generally (name redacted), “Executive Privilege and the Bush Administration:

Congressional Access to Information—-Using Legislative Will and Leverage,” vol. 52, Duke Law Journal, November

2002, p. 323.

The Bush Administration resisted congressional attempts to have Tom Ridge, the Director of the Office of Homeland

Security, testify. See supra note 113. The Office of Homeland Security was established within the Executive Office of

the President pursuant to E.O. 13228, issued on October 8, 2001. Federal Register, vol. 66, October 10, 2001, pp.

51812-51817. Even before Congress requested Ridge’s testimony, legislation had been introduced to create an office

with homeland security functions. See, e.g., S. 1449, 107th Cong. (to establish within the White House a National

Office for Combating Terrorism, with a director subject to Senate confirmation); S. 1534, 107th Cong. (to establish a

“Department of National Homeland Security,” with the Secretary subject to Senate confirmation). Upon the

introduction of S. 1534, Sen. Joseph Lieberman observed that the Secretary “will be accountable to the Congress and

the American people.” Congressional Record, daily edition, vol. 147. October 10, 2001, p. S10646. Ultimately,

Congress established the Department of Homeland Security. P.L. 107-296, § 101, 116 Stat. 2135 (2002). Ridge’s

nomination as the first Secretary of the new department was approved subject to his “commitment to respond to

requests to appear and testify before any duly constituted committee of the Senate.” Congressional Record, daily

edition, vol. 149, January 22, 2003, p. S1372.

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Conclusion

(1) Legal and policy factors may explain why presidential advisers do not regularly testify before

committees. (2) Generally, a congressional committee with jurisdiction over the subject matter,

which is conducting an authorized investigation for legislative or oversight purposes, has a right

to information held by the executive branch in the absence of either a valid claim of constitutional

privilege by the executive or a statutory provision whereby Congress has limited its constitutional

right to information. (3) A committee may request or demand the testimony of a presidential

adviser, however, legal mechanisms available for enforcing congressional subpoenas to the

executive branch may fail to provide the committee with the desired information. (4) Negotiations

may result in the production of at least some of the information sought.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in American National Government

[redacted]@crs.loc.gov, 7-....

Acknowledgments

This report was originally coauthored by (name redacted), Specialist in American National Government,

and (name redacted), Legislative Attorney.

Congressional Research Service

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