Nadler, OLC Spar Over Immunity for McGahn

Steven D. Schwinn, John Marshall Law School

House Judiciary Committee Jerold Nadler and the Office of Legal Counsel today sparred over whether former White House Counsel Don McGahn enjoys absolute immunity from testimony before Nadler's Committee.

On the one side, OLC argues that "[s]ince the 1970s, [it] has consistently advised that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties." According to OLC, this is based in the separation of powers:

The President stands at the head of a co-equal branch of government. Yet allowing Congress to subpoena the President to appear and testify would 'promote a perception that the President is subordinate to Congress, contrary to the Constitution's separation of governmental powers into equal and coordinate branches." . . .

"For the President's absolute immunity to be fully meaningful," we explained, "and for these separation of powers principles to be adequately protected, the President's immediate advisers must likewise have absolute immunity from congressional compulsion to testify about the matters that occur during the course of discharging their official duties." . . .

Recognizing a congressional authority to compel the President's immediate advisers to appear and testify at the times and places of their choosing would interfere directly with the President's ability to faithfully discharge his responsibilities. It would allow congressional committees to "wield their compulsory power to attempt to supervise the President's actions, or to harass those advisers in an effort to influence their conduct, retaliate for actions the committee disliked, or embarrass and weaken the President for partisan gain." And in the case of the President's current advisers, preparing for such examinations would force them to divert time and attention from their duties to the President at the whim of congressional committees. This "would risk significant congressional encroachment on, and interference with, the President's prerogatives and his ability to discharge his duties with the advice and assistance of his closest advisers," ultimate subordinating senior presidential advisers to Congress rather than to the President.

The OLC explained that this absolute immunity was distinct from--and swept more broadly than--executive privilege. It also explained that absolute immunity only applied to the president's immediate advisers, not to appointees whose offices are created by Congress and who need Senate advice and consent.

Counsel to the President Pat Cipollone then wrote to Nadler that McGahn wouldn't testify, based on the OLC memo.

On the other side, Nadler shot to McGahn that the OLC memo "has no support in relevant case law, and its arguments have been flatly rejected by the courts." He also argued that executive privilege doesn't apply (although, to be clear, the OLC cites absolute immunity of close-level presidential advisers, not executive privilege).