Neil Kinkopf teaches constitutional law at Georgia State University College of Law and served in the Office of Legal Counsel from 1993-1997.
President Trump has ordered his former White House counsel, Donald McGahn, to defy a congressional subpoena. In support of this maneuver, the president’s lawyers have marshaled what looks like a bipartisan legal consensus that a president’s senior advisers are absolutely immune from Congress’s subpoena power — even after they leave government. The appearance is highly misleading.
Congress’s power to conduct investigations and to compel witnesses and evidence through subpoena is well-established. Executive privilege has a much more dubious pedigree. The Supreme Court first accepted executive privilege as a legitimate constitutional concept just 45 years ago. In that case, the court rejected President Richard M. Nixon’s claim that executive privilege is absolute and ordered him to comply with a subpoena for the Watergate tapes. The court held that executive privilege is qualified and that a president’s interest in confidentiality must be balanced against the interest of the branch issuing the subpoena. Nothing in the current case or any other case decided by any court has ever held that presidential advisers — let alone former advisers — are absolutely privileged from complying with a congressional subpoena.
The White House on Monday released an opinion it received from the Justice Department’s Office of Legal Counsel. The opinion notes that, since the Watergate investigation, it has been the consistent position of the executive branch that senior presidential advisers, including the White House counsel, are absolutely privileged from complying with any congressional subpoena for testimony. This position has been asserted by every president since Nixon, regardless of political party, though the immunity of a former adviser has been asserted only by President George W. Bush. This casts Trump’s position as representing a principled and nonpartisan consensus. The subtext is that Congress’s position is partisan and unprincipled.
This narrative ignores a countervailing truth: Since Watergate, Congress has asserted — without regard to which party is in the majority — its power to compel the testimony of senior White House aides against every president. In other words, the disagreement is principled and nonpartisan.
Not surprisingly, the issue has been litigated. In 2007, Bush asserted a categorical “immunity” to prevent his former White House counsel, Harriet Miers, from testifying as part of a congressional inquiry into whether a group of U.S. attorneys had been fired for political reasons. The House Judiciary Committee went to court to enforce its subpoena and U.S. District Judge John D. Bates, who had been appointed by Bush, ruled emphatically in favor of the House of Representatives.
The lead rationale for the Justice Department’s position is that the president is independent of and equal to Congress. According to the opinion released Monday, “subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress. . . . Yet Congress may no more summon the President to a congressional committee room than the President may command members of Congress to appear at the White House.”
This argument has rhetorical appeal, but it fails on the merits. Yes, Congress and the president are equals. They are not, however, identical. In other words, they have different powers. Congress has the subpoena power; the president does not. True, the president may not command anyone to appear at the White House. The Senate and House, by contrast, may subpoena anyone to appear before its committees. As the Supreme Court put it, “It is unquestionably the duty of all citizens to . . . respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.”
Trump’s assertion of privilege, then, is not a claim for equal treatment. It is a claim that he enjoys an unusual exemption from the basic duty that every other citizen must observe.
The redacted Mueller report documents the extensive efforts the president undertook to obstruct special counsel Robert S. Mueller III’s investigation and elaborates on the central role the president assigned to McGahn in carrying out the obstruction. Congress’s interest in protecting our election system from foreign interference is of the highest constitutional order, as is Congress’s interest in responding to the president’s blatant misconduct. McGahn’s testimony is clearly relevant to vindicating both interests.
Where Congress’s interest is concrete and compelling, the president’s interest in confidentiality is not. McGahn testified to the special counsel at great length, and the president did not object to the attorney general’s public disclosure of the substance of that testimony in the Mueller report. While that does not represent a waiver of privilege with respect to matters going beyond what appears in the report (because both McGahn and Mueller were within the executive branch), it does all but eviscerate Trump’s claimed need for his conversations with McGahn to be kept secret. Indeed, Trump himself has spoken publicly about his conversations with McGahn (disputing two notions: that he had ordered McGahn to fire Mueller, and that he had instructed McGahn to draft a memo falsely asserting that the president had never ordered Mueller’s firing).
The president’s assertion of an absolute executive privilege is part of a broad strategy to stonewall Congress and prevent it from exercising its core constitutional functions of oversight and investigation. Trump has said that it is his intention to fight “all the subpoenas.” Rather than showing respect for Congress’s role, the president has shown that he holds Congress in contempt. The question now is whether Congress will reciprocate.