People who aren’t aides and have never been aides but have advised the president, such as Lewandowski.
People who may not have been aides or advised the president, but have provided information to him “in connection with the discharge of his duties.”
Communications, not just between the president and his advisers, but between his advisers and anyone else, “relating to information or advice that will inform the discharge of the President’s responsibilities.”
By this standard, Kim Kardashian and her husband Kanye West, who advised the president on the fate of rapper A$AP Rocky after his arrest in Sweden, among other matters, could be considered as immune as Conway.
No president likes headline-grabbing congressional oversight. They all consider it unfair and many resist, stall and occasionally obstruct. But none have asserted such sweeping exemption from oversight by a coequal branch of government as Trump.
Administration lawyers insist that their claims are “well settled.” Legal scholars question that assertion.
“There is no constitutional basis” for the administration’s position on testimonial immunity, said Mark Rozell, dean of George Mason University’s Schar School of Policy and Government and author of a definitive study of executive privilege.
It’s “nothing more than a self-serving rationale by the executive to wall off Congress from open testimony. This administration though has taken the argument to the next level by maintaining it has the right to immunize any and all persons of interest from testifying any time it wants to,” Rozell said in an email, “even non governmental persons who may have direct knowledge of executive branch wrongdoing.”
By the standards urged by Trump’s lawyers, presidents could have stymied any of the famous oversight hearings in modern times, including the Senate probe of the Watergate scandal, the hearings on the Iran-contra controversy during the Reagan administration, the “Whitewater” probe by committees of both the House and the Senate into real estate dealings of Bill and Hillary Clinton, and the long-running “House Select Committee on Events Surrounding the 2012 Terrorist Attack in Benghazi.”
That’s because the president’s lawyers argue that they get to decide whether Congress’s stated reason for seeking information is “the real reason,” as the Office of Legal Counsel said in its opinion justifying noncompliance with a law allowing the chairman of the House Ways and Means Committee to see the president’s tax returns.
If the White House thinks the Congress’s motives are phony, it can refuse its demands, the office argued.
Moreover, there’s nothing Congress can do about the White House’s resistance, Trump’s lawyers argued in its Sept. 6 motion to dismiss a suit by the Ways and Means Committee in the U.S. District Court for the District of Columbia, because the federal courts are not empowered to rule in such a dispute.
Congress may not “conscript the Judiciary on its side of a dispute with the Executive Branch over a congressional demand for information,” Trump’s lawyers stated.
Because the Justice Department will not pursue contempt charges against its own officials, the administration’s argument, if successful, would cut off the only practical recourse for Congress.
The administration’s resistance does not stop at probes arguably outside of Congress’s jurisdiction.
Commerce Secretary Wilbur Ross has refused to testify on his own department’s 2020 budget, a routine appearance ordinarily well within Congress’s constitutionally mandated stewardship of appropriations and spending.
Separately, the House voted in July to hold Attorney General William P. Barr and Ross in contempt for failing to provide documents relating to the administration’s failed efforts to add a citizenship question to the 2020 Census.
Should Trump prevail in his sweeping claims, future presidents of both major parties will be able to rest easy, assured that if they deem a congressional investigation or demand for information out of bounds or “pretextual,” they need not cooperate.
The principle of checks and balances is the backbone of the Constitution, the basis for 230 years of congressional oversight of the White House and for what George Mason, a framer of the Constitution, called the “inquisitorial powers” of the legislative branch, its obligation to “inspect the Conduct of the public offices,” as he said.
“If Congress doesn’t do its job and challenge the president, what we have is a failed democracy,” Supreme Court Justice Antonin Scalia said in a speech shortly before his death.