Thursday, April 25, 2019

White House Declines to Make Miller Available for Congressional Testimony

The White House today declined to make Steve Miller available to the House Committee on Oversight and Reform for testimony about the President's immigration priorities. This is just the latest chapter in White House defiance of attempts at congressional oversight, in a week when President Trump (remarkably) said that he'd decline to comply with all House subpoenas.

The White House's stated reason for declining to make Miller available is a little different than the stated reasons for not complying with other House committee requests and subpoenas. In particular, the White House wrote, "The precedent for members of the White House staff to decline invitations to testify before congressional committees has been consistently adhered to be administrations of both political parties, and is based on clearly established constitutional doctrines." In other words: White House staff appearing before Congress would violate the separation of powers.

The White House cites a 2014 OLC opinion that concludes that "[t]he Executive Branch's longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President's immediate advisers are absolutely immune from congressional testimonial process." 

That opinion is at odds with Committee on the Judiciary, U.S. House of Representatives v. Miers, the D.C. District court case that held that Harriett Miers was not absolutely immune from congressional testimony. In Miers, the court said that Harlow v. Fitzgerald answered the question. The Court in Harlow denied absolute immunity to "senior White House aides" for civil damages (and instead granted qualified immunity) based on claims like the ones made by the White House in Miers (and here). The D.C. court wrote, "The derivative, 'alter ego' immunity that the Executive requests here due to Ms. Miers's and Mr. Bolton's close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here."

But the 2014 OLC memo said that Miers was wrong for two reasons. First, it said that "such a power would threaten the President's 'independence and autonomy from Congress.'" Next, "a congressional power to subpoena the President's closest advisers to testify about matters that would occur during the course of discharging their official duties 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." This sounds like an invocation of executive privilege. It wasn't--at least not exactly. The OLC memo went on to explain why allowing testimony, but invoking executive privilege on a question-by-question basis, wouldn't sufficiently protect the executive branch.

So we have competing answers to the question whether "senior White House aides" are entitled to absolute immunity from testimony before Congress, simply by virtue of their proximity to the President. (The current White House letter expands this to "White House staff.") That'll be the question if and when this gets to court.

Congressional Authority, Executive Authority, News, Separation of Powers | Permalink


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