A recent office of legal counsel memo on executive privilege maintains that private advisers to a president can avoid responding to a subpoena by asserting the president’s executive privilege. The ability of presidents to shield communications from public view through claims of executive privilege, whether their own or those of a senior adviser, was already a powerful tool for presidents to avoid accountability. But if courts accept the OLC’s new interpretation of presidential privilege, it will be substantially harder to call witnesses to testify before Congress or in court proceedings regarding possible wrongdoing by the presidents.
Equipping presidents with extensive power to block witnesses in legal proceedings is a dangerous practice that invites corruption by presidents and their advisers. Consider the former White House counsel Don McGahn’s 2019 refusal to testify in response to a subpoena by the House judiciary committee in connection with the special counsel Robert Mueller’s investigation into Donald Trump. McGahn didn’t come up with that idea on his own. It was the Trump White House that sought to bar McGahn from testifying through an assertion of a type of executive privilege known as “testimonial immunity.” Ironically, Mueller was investigating whether Trump obstructed justice, among other things, by demanding that McGahn fire Mueller himself. Trump’s insistence that McGahn not testify, backed up by a 2019 OLC opinion, effectively made the first Trump administration complicit in the very obstruction under investigation.
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The then federal district court judge Ketanji Brown Jackson ended up rejecting the claim of privilege and ordered McGahn to testify. After the Trump administration appealed and judicial decisions flipped back and forth, the parties finally reached a settlement permitting McGahn to testify behind closed doors. But it was too little too late for Congress. The case reminds us that assertions of privilege by presidential advisers are not legally well-established, but such assertions are sufficient to throw sand in the gears of a congressional investigation, even if such assertions are legally highly tenuous.
Other presidents have invoked claims of privilege or the closely related idea of immunity regularly, but more often than not they are rejected by courts. Bill Clinton, for example, invoked it numerous times unsuccessfully to try to avoid responding to questions from the special prosecutor Kenneth Starr as well as to avoid testifying in a lawsuit brought by Paula Jones. The court found he had no immunity against a subpoena requiring him to appear at a deposition.
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Richard Nixon tried to invoke it to avoid having to turn over the infamous White House tapes to the White House special prosecutor Leon Jaworski, but the supreme court ruled he had to turn them over anyway. Even Thomas Jefferson and George Washington tried to invoke it in one form or another. But where courts have ruled, such claims do not usually prevail.
OLC’s latest memo goes far beyond even the 2019 memo written to bolster the White House’s block on McGahn. That memo justified testimonial immunity using the claim that senior aides to the president “are an extension of the President and are likewise entitled to absolute immunity from compelled congressional testimony”. But that argument is inapplicable to private persons who consult with the president. While executive privilege and testimonial immunity are not identical, they are sufficiently alike that the rationale for their invocation is the same, and neither should apply to non-governmental advisers.
The current memo is also concerning because of its lack of candor about the historical precedent for executive privilege. Consider what the memo says about the subpoena issued to Thomas Jefferson in 1807 during the trial of Aaron Burr, when Burr subpoenaed Jefferson to obtain documents to prove his innocence. Jefferson refused to appear and invoked executive privilege. Chief Justice Marshall insisted there “is no exception whatsoever” to an accused’s right to prove his innocence by seeking documents and testimony that would exempt him.
Marshall did acknowledge the existence of a “privilege to withhold certain official paper[s] that ‘ought not on light ground to be forced into public view’”. But he did not believe the privilege applied.
The memo once again engages problematic legal reasoning when it discusses Nixon’s bid to avoid turning over the tapes. The memo claims the Nixon case shows that the court recognized “the privilege of confidentiality of Presidential communications”, which “derive[s] from the supremacy of each branch within its own assigned area of constitutional duties”. And while Nixon certainly asserted such a right, in US v Nixon the US supreme court vehemently rejected that contention and denied Nixon’s request.
Commentators have speculated that one of the likely explanations for the timing of the OLC memo is that the administration is getting ready for the House or Senate to change hands, and that the justice department is looking for a way to block the onslaught of investigations to follow. That the OLC would take an extreme position to further immunize presidents from congressional scrutiny is disturbing but hardly surprising. As with so many memos in recent years, the OLC has abandoned all pretense of interpreting the law impartially. Courts should accord OLC opinions no weight whatsoever in future cases.
Misrepresenting legal sources is a violation of the rules of professional conduct for lawyers, as made clear by the Model Rules of Professional Conduct. The quality of OLC argumentation sets a standard for legal practice across the federal government, as well as in the private sector. It is critical for the profession to reject the sort of outcome-oriented analysis the OLC has engaged in here, and federal courts must play a role in ensuring such legal analysis does not become par for the course across the legal profession.
