              Immunity of the Assistant to the President and 

              Director of the Office of Political Strategy and

                Outreach From Congressional Subpoena 

The Assistant to the President and Director of the Office of Political Strategy and Outreach (“OPSO”)
  is immune from the House Committee on Oversight and Government Reform’s subpoena to compel
  him to testify about matters concerning his service to the President in the OPSO.

                                                                                       July 15, 2014

            MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

   You have asked whether Assistant to the President and Director of the Office of
Political Strategy and Outreach (“OPSO”) David Simas is legally required to
appear to testify at a congressional hearing scheduled for July 16, 2014, in
response to a subpoena issued to Mr. Simas by the House Committee on Oversight
and Government Reform on July 10, 2014. We understand that the Committee
seeks testimony about “whether the White House is taking adequate steps to
ensure that political activity by Administration officials complies with relevant
statutes, including the Hatch Act,” and about “the role and function of the White
House Office of Political Strategy and Outreach.” Letter for David Simas from the
Hon. Darrell Issa, Chairman, Committee on Oversight and Government Reform,
House of Representatives (July 3, 2014) (“Invitation Letter”). For the reasons set
forth below, we believe that Mr. Simas is immune from compulsion to testify
before the Committee on these matters, and therefore is not required to appear to
testify in response to this subpoena.

                                                 I.

                                                 A.

   The Executive Branch’s longstanding position, reaffirmed by numerous Ad-
ministrations of both political parties, is that the President’s immediate advisers
are absolutely immune from congressional testimonial process. See, e.g., Memo-
randum for the Hon. John D. Ehrlichman, Assistant to the President for Domestic
Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal
Counsel, Re: Power of Congressional Committee to Compel Appearance or
Testimony of “White House Staff” at 7 (Feb. 5, 1971) (“Rehnquist Memoran-
dum”).1 This immunity is rooted in the constitutional separation of powers, and in


   1
     See also Letter to Fred F. Fielding, Counsel to the President, from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, Office of Legal Counsel (Aug. 1, 2007); Immunity of Former
Counsel to the President from Compelled Congressional Testimony, 31 Op. O.L.C. __ (July 10, 2007)
(“Bradbury Memorandum”), available at http://www.justice.gov/olc.opinions.htm; Assertion of Execu-




                                                  1

                    Opinions of the Office of Legal Counsel in Volume 38


the immunity of the President himself from congressional compulsion to testify.
As this Office has previously observed, “[t]he President is the head of one of the
independent Branches of the federal government. If a congressional committee
could force the President’s appearance” to testify before it, “fundamental separa-
tion of powers principles—including the President’s independence and autonomy
from Congress—would be threatened.” Immunity of Former Counsel to the
President from Compelled Congressional Testimony, 31 Op. O.L.C. __, at *2
(July 10, 2007) (“Bradbury Memorandum”), available at http://justice.gov/olc/
opinions.htm. In the words of one President, “[t]he doctrine [of separation of
powers] would be shattered, and the President, contrary to our fundamental theory
of constitutional government, would become a mere arm of the Legislative Branch
of the Government if he would feel during his term of office that his every act
might be subject to official inquiry and possible distortion for political purpose.”
Texts of Truman Letter and Velde Reply, N.Y. Times, Nov. 13, 1953, at 14
(reprinting November 11, 1953 letter by President Truman). Thus, just as the
President “may not compel congressmen to appear before him,” “[a]s a matter of
separation of powers, Congress may not compel him to appear before it.” Asser-
tion of Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. 1, 4
(1999) (“Assertion of Executive Privilege”) (quoting Memorandum for Edward C.
Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel at 2 (July 29, 1982)).
   For the President’s absolute immunity to be fully meaningful, 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 matters that occur during the course of discharging
their official duties. “Given the numerous demands of his office, the President
must rely upon senior advisers” to do his job. Bradbury Memorandum at *2. The
President’s immediate advisers—those trusted members of the President’s inner
circle “who customarily meet with the President on a regular or frequent basis,”
Rehnquist Memorandum at 7, and upon whom the President relies directly for
candid and sound advice—are in many ways an extension of the President himself.


tive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. 1 (1999); Immunity of the Counsel to
the President from Compelled Congressional Testimony, 20 Op. O.L.C. 308 (1996); Memorandum to
Edward C. Schmults, Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General,
Office of Legal Counsel (July 29, 1982); Letter for Rudolph W. Giuliani, Associate Attorney General,
from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Demand for
Deposition of Counsel to the President Fred F. Fielding (July 23, 1982); Memorandum for Fred F.
Fielding, Counsel to the President, from Theodore B. Olson, Assistant Attorney General, Office of
Legal Counsel, Re: Congressional Testimony by Presidential Assistants (Apr. 14, 1981); Memorandum
for Margaret McKenna, Deputy Counsel to the President, from John M. Harmon, Assistant Attorney
General, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers (Aug. 11, 1977);
Memorandum for the Hon. John W. Dean III, Counsel to the President, from Ralph E. Erickson,
Assistant Attorney General, Office of Legal Counsel, Re: Appearance of Presidential Assistant Peter
M. Flanigan Before a Congressional Committee (Mar. 15, 1972).




                                                 2

        Response to Congressional Subpoena Issued to Assistant to the President


They “function[] as the President’s alter ego, assisting him on a daily basis in the
formulation of executive policy and resolution of matters affecting the military,
foreign affairs, and national security and other aspects of his discharge of his
constitutional responsibilities,” including supervising the Executive Branch and
developing policy. Assertion of Executive Privilege, 23 Op. O.L.C. at 5; see also
Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982) (the Constitution “establishes the
President as the chief constitutional officer of the Executive Branch, entrusted
with supervisory and policy responsibilities of utmost discretion and sensitivity,”
including “the enforcement of federal law” and the “management of the Executive
Branch”); In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997) (“The President
himself must make decisions relying substantially, if not entirely, on the infor-
mation and analysis supplied by advisers.”). “Given the close working relationship
that the President must have with his immediate advisors as he discharges his
constitutionally assigned duties,” “[s]ubjecting [those advisors] to the congres-
sional subpoena power would be akin to requiring the President himself to appear
before Congress on matters relating to the performance of his constitutionally
assigned executive functions.” Assertion of Executive Privilege, 23 Op. O.L.C.
at 5.
   In particular, a congressional power to compel the testimony of the President’s
immediate advisers would interfere with the President’s discharge of his constitu-
tional functions and damage the separation of powers in at least two important
respects. First, such a power would threaten the President’s “independence and
autonomy from Congress.” Bradbury Memorandum at *2; cf. Cheney v. U.S. Dist.
Ct. for D.C., 542 U.S. 367, 370, 385 (2004) (citing the President’s need for auto-
nomy and confidentiality in holding that courts must consider constraints imposed
by the separation of powers in fashioning the timing and scope of discovery
directed at high-level presidential advisers who “give advice and make recom-
mendations to the President”). Absent immunity for a President’s closest advisers,
congressional committees could 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. Such efforts 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. They also 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.
   Second, a congressional power to subpoena the President’s closest advisers to
testify about matters that 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. The
Supreme Court has recognized “the necessity for protection of the public interest



                                          3

                     Opinions of the Office of Legal Counsel in Volume 38


in candid, objective, and even blunt or harsh opinions in Presidential decisionmak-
ing.” United States v. Nixon, 418 U.S. 683, 708 (1974). “A President and those
who assist him,” the Court has explained, “must be free to explore alternatives in
the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately.” Id. The prospect of compelled
interrogation by a potentially hostile congressional committee about confidential
communications with the President or among the President’s immediate staff
could chill presidential advisers from providing unpopular advice or from fully
examining an issue with the President or others.
    To be sure, the President’s advisers could invoke executive privilege to decline
to answer specific questions if they were required to testify. See, e.g., Rehnquist
Memorandum at 8 & n.4. But the ability to assert executive privilege during live
testimony in response to hostile questioning would not remove the threat to the
confidentiality of presidential communications. An immediate presidential adviser
could be asked, under the express or implied threat of contempt of Congress, a
wide range of unanticipated and hostile questions about highly sensitive delibera-
tions and communications. In the heat of the moment, without the opportunity for
careful reflection, the adviser might have difficulty confining his remarks to those
that do not reveal such sensitive information. Or the adviser could be reluctant to
repeatedly invoke executive privilege, even though validly applicable, for fear of
the congressional and media condemnation she or the President might endure.
These concerns are heightened because, in a hearing before a congressional
committee, there is no judge or other neutral magistrate to whom a witness can
turn for protection against questions seeking confidential and privileged infor-
mation. The committee not only poses the questions to the witness, but also rules
on any objections to its own questions according to procedures it establishes. The
pressure of compelled live testimony about White House activities in a public
congressional hearing would thus create an inherent and substantial risk of
inadvertent or coerced disclosure of confidential information relating to presiden-
tial decisionmaking—thereby ultimately threatening the President’s ability to
receive candid and carefully considered advice from his immediate advisers. To
guard against these harms to the President’s ability to discharge his constitutional
functions and to the separation of powers, immediate presidential advisers must
have absolute immunity from congressional compulsion to testify about matters
that occurred during the course of the adviser’s discharge of official duties.2

   2
     A number of senior presidential advisers have voluntarily testified before Congress as an accom-
modation to a congressional committee’s legitimate interest in investigating certain activities of the
Executive Branch. These instances of voluntary testimony do not undermine the Executive Branch’s
long-established position on absolute immunity. Unlike compelled testimony, voluntary testimony by a
senior presidential adviser represents an affirmative exercise of presidential autonomy. It reflects a
decision by the President and his immediate advisers that the benefit of providing such testimony as an
accommodation to a committee’s interests outweighs the potential for harassment and harm to
Executive Branch confidentiality. Such testimony, moreover, may be provided on terms negotiated to




                                                  4

          Response to Congressional Subpoena Issued to Assistant to the President


                                                B. 


   This longstanding Executive Branch position is consistent with relevant Su-
preme Court case law. The Court has not yet considered whether Congress may
secure the testimony of an immediate presidential adviser through compulsory
process. But in an analogous context, the Court did conclude that legislative aides
are entitled to immunity under the Speech or Debate Clause that is co-extensive
with the immunity afforded Members of Congress themselves. See Gravel v.
United States, 408 U.S. 606 (1972). “It is literally impossible,” the Court ex-
plained, “for Members of Congress to perform their legislative tasks without the
help of aides and assistants.” Id. at 616. Legislative aides must therefore “be
treated as . . . alter egos” of the Members they serve. As a result, they must be
granted the same immunity as those Members in order to preserve “the central role
of the Speech or Debate Clause,” which is “to prevent intimidation of legislators
by the Executive and accountability before a possibly hostile judiciary.” Id. at 617.
   The Court’s reasoning in Gravel supports the position that the President’s
immediate advisers must share his absolute immunity from congressional
compulsion to testify. As noted above, the President’s immediate advisers are his
“alter egos,” allowing him to fulfill the myriad responsibilities of his office in a
way it would be “literally impossible” for him to do alone. A congressional power
to compel their testimony would (as we have discussed) undermine the President’s
independence, create the appearance that the President is subordinate to Congress,
and impair the President’s ability to receive sound and candid advice, thereby
hindering his ability to carry out the functions entrusted to him by the Constitu-
tion. Subjecting immediate presidential advisers to congressional testimonial
process would thus “diminish[] and frustrate[]” the purpose of the President’s own
absolute immunity from such process—just as in Gravel, denying “Speech or
Debate” immunity to legislative aides would have “diminished and frustrated” the
protections granted to Members of Congress under that clause. Gravel, 408 U.S. at
617.
   To be sure, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court rejected a
claim of absolute immunity made by senior presidential advisers. But it did so in
the context of a civil suit against those advisers for money damages. In our view,
Harlow’s holding that presidential advisers are generally entitled to only qualified
immunity in suits for money damages should not be extended to the context of
congressional subpoenas for the testimony of immediate presidential advisers,
because the separation of powers concerns that underlie the need for absolute
immunity from congressional testimonial compulsion are not present to the same


focus and limit the scope of the questioning. Because voluntary testimony represents an exercise of
presidential autonomy rather than legally required compliance with congressional will, it does not
implicate the separation of powers in the same manner, or to anything like the same extent, as
compelled testimony.




                                                5

                  Opinions of the Office of Legal Counsel in Volume 38


degree in civil lawsuits brought by third parties. But see Comm. on Judiciary, U.S.
House of Representatives v. Miers, 558 F. Supp. 2d 53, 100–02 (D.D.C. 2008)
(reading Harlow to preclude absolute immunity for senior presidential advisers
from compulsion to testify before Congress).
    As explained above, subjecting an immediate presidential adviser to Congress’s
subpoena power would threaten the President’s autonomy and his ability to
receive sound and candid advice. Both of these prospective harms would raise
acute concerns related to the separation of powers. A suit for damages brought by
a private party does not raise comparable separation of powers concerns. It is true
that such a suit involves a judicially supervised inquiry into the actions of
presidential advisers, and that the threat of financial liability from such a suit may
chill the conduct of those advisers. See Harlow, 457 U.S. at 814; Miers, 558 F.
Supp. 2d at 101–02. But, in civil damages actions, the Judiciary acts as a disinter-
ested arbiter of a private dispute, not as a party in interest to the very lawsuit it
adjudicates. Indeed, the court is charged with impartially administering procedural
rules designed to protect witnesses from irrelevant, argumentative, harassing,
cumulative, privileged, and other problematic questions. Cf., e.g., Fed. R. Civ. P.
26(b); Fed. R. Evid. 103. And mechanisms exist to eliminate unmeritorious
claims. See, e.g., Fed. R. Civ. P. 12(b), (c), (e), (f); Fed. R. Civ. P. 56. In contrast,
in the congressional context (as noted earlier), the subpoenaing committee is both
the interested party and the presiding authority, asking questions that further its
own interests, and setting the rules for the proceeding and judging whether a
witness has failed to comply with those rules. In part for these reasons, a congres-
sional proceeding threatens to subject presidential advisers to coercion and
harassment, create a heightened impression of presidential subordination to
Congress, and cause public disclosure of confidential presidential communications
in a way that the careful development of evidence through the judicially monitored
application of the Federal Rules of Civil Procedure does not.
    Harlow also contains a discussion of Gravel, in which the Court rejected the
defendants’ argument that, as “alter egos” of the President, they should be entitled
to absolute immunity from civil claims for damages, derivative of the absolute
immunity afforded the President. But we do not think Harlow’s discussion
undermines the relevance of Gravel to the issue of immunity from congressional
compulsion to testify. In Harlow, the Court conceded that the defendants’ claim of
absolute immunity based on Gravel was “not without force,” but concluded that
the argument would “sweep[] too far,” because it would imply that Cabinet
officials too should enjoy derivative absolute immunity, and the Court had already
decided (in Butz v. Economou, 438 U.S. 478 (1978)) that Cabinet officials—
“Presidential subordinates some of whose essential roles are acknowledged by the
Constitution itself”—were entitled to only qualified immunity. Harlow, 457 U.S.
at 810.




                                           6

          Response to Congressional Subpoena Issued to Assistant to the President


    Given the dissimilarities between civil suits for damages and compelled con-
gressional testimony just discussed, it is doubtful that this discussion in Harlow
(or the holding in Butz) bears much on the question of whether immediate
presidential advisers have absolute immunity from congressional compulsion to
testify. Further, even if it is appropriate to harmonize the immunity afforded
Cabinet officials and presidential advisers in the context of suits for damages, the
same is not true in the context of compelled congressional testimony. This is
because the prospect of compelled congressional testimony by a President’s
immediate advisers would, as a general matter, be significantly more damaging to
the separation of powers than the prospect of compelled testimony by a Cabinet
official. As a Department head, a Cabinet officer is confirmed by the Senate, and
her authority and functions are generally established by statute. It may be a
significant part of her regular duties to testify before Congress about the imple-
mentation of laws that Congress has passed. Cf. Rehnquist Memorandum at 8–9.
By contrast, an immediate presidential adviser is appointed solely by the Presi-
dent, without Senate confirmation, and his role is to advise and assist the President
in the performance of the President’s constitutionally assigned functions. The
separation of powers concerns identified above—the threats to both the independ-
ence of the presidency and the President’s ability to obtain candid and sound
advice—are significantly more acute in the case of close personal advisers than
high-ranking Executive Branch officials who do not function as the President’s
“alter egos.” Cf. Harlow, 457 U.S. at 828 (Burger, C.J., dissenting) (faulting the
Court majority for “fail[ing] to distinguish the role of a President or his ‘elbow
aides’ from the role of Cabinet officers, who are department heads rather than
‘alter egos,’” and stating that “[i]t would be in no sense inconsistent to hold that a
President’s personal aides have greater immunity than Cabinet officers”); id. at
810 n.14 (majority) (acknowledging Chief Justice Burger’s argument and noting
that “it is impossible to generalize about the role of ‘offices’ in an individual
President’s administration” because some individuals have served simultaneously
in both presidential advisory and Cabinet positions).3
    Similarly, in United States v. Nixon, the Supreme Court expressly distinguished
the privilege issues arising in criminal cases from the privilege issues that would


    3
      The Harlow Court also observed that civil suits for money damages against presidential advisers
“generally do not invoke separation-of-powers considerations to the same extent as suits against the
President himself.” 457 U.S. at 811 n.17. This observation is consistent with Nixon v. Fitzgerald, a case
decided the same day as Harlow, in which the Court held that the President “is entitled to absolute
immunity from damages liability predicated on his official acts.” 457 U.S. 731, 749 (1982). This logic
too suggests that the President’s immediate advisers should be absolutely immune from congressional
compulsion to testify, because (as we have explained) compelling immediate presidential advisers to
testify before Congress would risk serious harm to the separation of powers that is closely related to the
harm that would be caused by compelling the President himself to appear, and because absolute
immunity for the President’s immediate advisers is necessary to render the President’s own immunity
fully meaningful.




                                                    7

                  Opinions of the Office of Legal Counsel in Volume 38


arise in the context of compelled congressional testimony. In Nixon, the Court held
that the President could assert only a qualified, rather than an absolute, privilege to
resist a subpoena for tape recordings and documents issued in the course of a
criminal proceeding brought against certain third parties. 418 U.S. 683; see also
Sealed Case, 121 F. 3d at 753–57 (presidential communications privilege may be
overcome by need for information in a grand jury investigation). But the Court
made clear that it was “not . . . concerned with the balance between the Presi-
dent’s . . . confidentiality interest and congressional demands for information.”
Nixon, 418 U.S. at 712 n.19; see also id. (“We address only the conflict between
the President’s assertion of a generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal trials.”); Sealed Case, 121
F.3d at 753 (recognizing that the unique “constitutional considerations” in the
“congressional-executive context” render limitations on executive privilege in the
judicial context inapposite). Particularly in light of this explicit statement, we do
not believe Nixon casts doubt on the President’s—and by extension his immediate
advisers’—immunity from congressional compulsion to testify. As with liability
for private suits for damages, requiring the President to comply with a third-party
subpoena in a criminal case is very different from—and has very different
separation of powers implications than—requiring him to comply with a congres-
sional subpoena for testimony. This is so in at least two respects.
    First, as the Court explained in Cheney, “the need for information in the crimi-
nal context is” particularly weighty “because ‘our historic[al] commitment to the
rule of law . . . is nowhere more profoundly manifest than in our view that the
twofold aim of [criminal justice] is that guilt not escape or innocence suffer.’” 542
U.S. at 384 (quoting United States v. Nixon, 418 U.S. at 708–09) (internal
quotation marks omitted) (alterations in original)). Outside the criminal context,
“the need for information . . . does not share the [same] urgency or significance.”
Id. Comparing the informational need of congressional committees with that of
grand juries, for instance, the en banc Court of Appeals for the D.C. Circuit
explained that “while factfinding by a legislative committee is undeniably a part of
its task, legislative judgments normally depend more on the predicted consequenc-
es of proposed legislative actions and their political acceptability, than on precise
reconstruction of past events. . . . In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause to believe
that certain named individuals did or did not commit specific crimes.” Senate
Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732
(D.C. Cir. 1974) (en banc).
    Second, the potentially harmful effect on the President’s ability to carry out his
duties and on the separation of powers is more serious in the context of subpoe-
naed congressional testimony than in the context of compulsory judicial process in
a criminal case. As in the civil context, the criminal justice system imposes
“various constraints, albeit imperfect, to filter out insubstantial legal claims” and
minimize the damage to the President’s ability to discharge his duties, such as



                                           8

        Response to Congressional Subpoena Issued to Assistant to the President


prosecutorial discretion (with its attendant ethical constraints) and Federal Rule of
Criminal Procedure 17. Cheney, 542 U.S. at 386. Congress is not subject to such
constraints. And, of course, a criminal subpoena does not raise the prospect of the
President (or one of his immediate advisers) being summoned at Congress’s will
to appear before it to respond to a hearing conducted entirely on the terms and in
the manner Congress chooses.
   Two lower-court cases also bear mention. In Senate Select Committee, the
Court of Appeals for the D.C. Circuit addressed a President’s obligation to comply
with a congressional subpoena, and concluded that the President could not assert a
generalized claim of executive privilege to absolutely immunize himself from
turning over certain tape recordings of presidential conversations. 498 F.2d 725.
Again, we do not believe this holding undermines our conclusion that the Presi-
dent and his immediate advisers are absolutely immune from congressional
compulsion to testify. In our view, Congress summoning a President to appear
before it would suggest, far more than Congress compelling a President to turn
over evidence, an Executive subordinate to the Legislature. In addition, when
Congress issues a subpoena for documents, the Executive Branch may take time to
review the request and object to any demands that encroach on privileged areas.
Any documents that are produced may be redacted where necessary. By contrast
(and as already discussed), a witness testifying before Congress may, in the heat of
the moment and under pressure, inadvertently reveal information that should
remain confidential.
   Finally, in Committee on Judiciary v. Miers, the District Court for the District
of Columbia considered a question very similar to the one raised here, and
concluded that a former Counsel to the President was not entitled to absolute
immunity from congressional compulsion to testify. 558 F. Supp. 2d at 99. The
court’s analysis relied heavily on Harlow, Harlow’s discussion of Gravel, and
Nixon. See 558 F. Supp. 2d at 99–105. For the reasons set forth above, we believe
those cases do not undermine the Executive Branch’s longstanding position that
the President’s immediate advisers are immune from congressional compulsion to
testify. We therefore respectfully disagree with the Miers court’s analysis and
conclusion, and adhere to the Executive Branch’s longstanding view that the
President’s immediate advisers have absolute immunity from congressional
compulsion to testify.

                                          C.

   Applying this longstanding view, we believe that Mr. Simas has such immuni-
ty. We understand that Mr. Simas spends the majority of his time advising or
preparing advice for the President. He is a member of a group of the President’s
closest advisers who regularly meet with the President, as often as several times a
week. In addition, Mr. Simas frequently meets with the President alone and with
other advisers, at the President’s or Mr. Simas’s request. See Rehnquist Memoran-



                                          9

                 Opinions of the Office of Legal Counsel in Volume 38


dum at 7 (President’s “immediate advisers” are “those who customarily meet with
the President on a regular or frequent basis”). Mr. Simas is responsible for
advising the President on such matters as what policy issues warrant his attention.
He also advises the President on how his policies are being received, and on how
to shape policy to align it with the needs and desires of the American public. Mr.
Simas thus plays a crucial role in deciding how best to formulate and communi-
cate the President’s agenda across a wide range of policy issues. In these respects,
Mr. Simas’s duties are comparable to those of other immediate advisers who we
have previously recognized are entitled to absolute immunity from congressional
compulsion to testify. See, e.g., Letter to Fred F. Fielding, Counsel to the Presi-
dent, from Steven G. Bradbury, Principal Deputy Assistant Attorney General,
Office of Legal Counsel (Aug. 1, 2007) (immunity of President Bush adviser Karl
Rove); Bradbury Memorandum (immunity of Counsel to President Bush Harriet
Miers). Consistent with these precedents, we likewise conclude that Mr. Simas has
absolute immunity from compulsion to testify before Congress about his service to
the President in the Office of Political Strategy and Outreach.

                                         II.

   For the reasons discussed above, we believe that Mr. Simas is entitled to im-
munity that is “absolute and may not be overborne by [the Committee’s] compet-
ing interests.” Assertion of Executive Privilege, 23 Op. O.L.C. at 4. But even if
Mr. Simas were only entitled to qualified immunity, which could be overcome by
a sufficient showing of compelling need, we would conclude that the Committee
had not made the requisite showing.

                                         A.

   No court has yet considered the standard that would be used to determine
whether a congressional committee’s interests overrode an immediate presidential
adviser’s immunity from congressional compulsion to testify, assuming that
immunity were qualified rather than absolute. But two decisions of the Court of
Appeals for the D.C. Circuit suggest possible standards. In Senate Select Commit-
tee, in the context of a presidential assertion of executive privilege against a
congressional subpoena for tape recordings of conversations between the President
and his Counsel, the court held that the Committee could overcome the assertion
only by showing that “the subpoenaed evidence is demonstrably critical to the
responsible fulfillment of [its] functions.” 498 F.2d at 731; see also McGrain v.
Daugherty, 273 U.S. 135, 176 (1927) (congressional oversight power may be used
only to “obtain information in aid of the legislative function”). And in Sealed
Case, the court held that “in order to overcome a claim of presidential privilege
raised against a grand jury subpoena, it is necessary to specifically demonstrate
why it is likely that the evidence contained in presidential communications is




                                         10

        Response to Congressional Subpoena Issued to Assistant to the President


important to the ongoing grand jury investigation and why this evidence is not
available from another source.” 121 F.3d at 757. (To be “important” to an
investigation, “the evidence sought must be directly relevant to issues that are
expected to be central to the trial.” Id. at 754.)
   In our view, Senate Select Committee would provide the more appropriate
standard for assessing whether a congressional committee’s assertion of need had
overcome an immediate presidential adviser’s qualified testimonial immunity. As
explained above, judicial proceedings—including criminal proceedings—differ in
fundamental ways from congressional hearings. Because the Senate Select
Committee standard was articulated in the congressional oversight context, and
because it seeks to preserve the President’s prerogatives while recognizing
Congress’s legitimate interest in information crucial to its legislative function, we
believe it would be an appropriate standard for evaluating whether an immediate
presidential adviser’s qualified testimonial immunity has been overcome.
   In applying this standard, it would be important to bear in mind the “implicit
constitutional mandate” that the coordinate branches of government “seek optimal
accommodation through a realistic evaluation of the needs of the conflicting
branches in the particular fact situation.” United States v. Am. Tel. & Tel. Co., 567
F.2d 121, 127 (D.C. Cir. 1977). Through this accommodation process, which has
been followed for decades, the political branches strive to avoid the “constitutional
confrontation” that erupts when the President must make an assertion of privilege,
or when an immediate presidential adviser’s testimonial immunity must be
invoked. See Cheney, 542 U.S. at 389–90 (quoting United States v. Nixon, 418
U.S. at 692); see also id. (“[C]onstitutional confrontation between the two
branches should be avoided whenever possible.”) (quotation marks omitted).
Accordingly, before an immediate presidential adviser’s compelled testimony
could be deemed demonstrably critical to the responsible fulfillment of a congres-
sional committee’s legislative function, a congressional committee would, at a
minimum, need to demonstrate why information available to it from other sources
was inadequate to meet its legitimate needs. See Senate Select Committee, 498
F.2d at 732–33 (noting that, in light of the President’s public release of partially
redacted transcripts of the subpoenaed tapes, the court had asked the Select
Committee to state “in what specific respects the [publicly available] tran-
scripts . . . are deficient in meeting [its] need,” and then finding that the Commit-
tee “points to no specific legislative decisions that cannot responsibly be made
without access to materials uniquely contained in the tapes”).

                                          B.

    The Committee has not shown that Mr. Simas’s testimony is demonstrably
critical to the responsible fulfillment of its legislative function. The Committee’s
investigation began with a broad request for “all documents and communications,
including e-mails, related or referring to the Office of Political Strategy and



                                          11

                 Opinions of the Office of Legal Counsel in Volume 38


Outreach or the reopening of the Office of Political Affairs,” along with a request
that White House officials brief Committee staff. Letter for Denis McDonough,
White House Chief of Staff, from the Hon. Darrell E. Issa, Chairman, Committee
on Oversight and Government Reform, House of Representatives at 4 (Mar. 18,
2014). Over the course of letters exchanged during the next three months, the
White House explained that the Office engages only in activities that are permissi-
ble under the Hatch Act, and that the White House has taken steps to ensure that
OPSO staff are trained in Hatch Act compliance. In response to those letters, the
Committee reiterated its broad request for documents, but did not articulate
particular unanswered questions or identify incidents in which OPSO staff may
have violated the Hatch Act or related statutes. See Letter for the Hon. Darrell E.
Issa, Chairman, Committee on Oversight and Government Reform, House of
Representatives, from Kathryn H. Ruemmler, Counsel to the President (Mar. 26,
2014); Letter for Denis McDonough, White House Chief of Staff, from the Hon.
Darrell E. Issa, Chairman, Committee on Oversight and Government Reform,
House of Representatives at 1 & n.5 (May 27, 2014); Letter for the Hon. Darrell E.
Issa, Chairman, Committee on Oversight and Government Reform, House of
Representatives, from W. Neil Eggleston, Counsel to the President at 1–2 (June
13, 2014).
   On July 3, 2014, the Committee requested Mr. Simas’s testimony at a public
hearing to understand “whether the White House is taking adequate steps to ensure
that political activity by Administration officials complies with relevant statutes,
including the Hatch Act,” and to understand “the role and function of the White
House Office of Political Strategy and Outreach.” Invitation Letter. The Commit-
tee did not, however, identify any specific unanswered questions that Mr. Simas’s
testimony was necessary to answer. The White House responded with a letter
providing additional information about White House efforts to ensure that OPSO
was operating in a manner consistent with applicable statutes, and explaining that
the activities cited by the Committee did not violate those statutes. See Letter for
the Hon. Darrell E. Issa, Chairman, Committee on Oversight and Government
Reform, House of Representatives, from W. Neil Eggleston, Counsel to the
President (July 10, 2014). At that time, the White House also provided various
documents reflecting its efforts to ensure that OPSO staff comply with relevant
laws, including materials on the Hatch Act used in a mandatory training for all
staff assigned to OPSO, e-mail correspondence demonstrating that OPSO staff
were directed to read critical reports issued by the Office of Special Counsel and
the Committee regarding the activities of the previous Administration’s Office of
Political Affairs, documentation of a meeting between lawyers from the White
House Counsel’s Office and the Office of Special Counsel concerning compliance
with the Hatch Act, and a memorandum sent to all White House staff from the
President’s Counsel reminding them of the law governing political activity by
federal employees. See id. at 3. Finally, the White House Counsel’s Office offered




                                         12

          Response to Congressional Subpoena Issued to Assistant to the President


to brief the Committee to address any outstanding questions regarding OPSO’s
activities. See id.
    After receiving these responses, the Committee, on Friday, July 11, 2014,
subpoenaed Mr. Simas to testify at a public hearing on Wednesday, July 16. At the
same time, the Committee indicated that it would accept the White House
Counsel’s Office’s offer to brief the Committee, and would determine after the
briefing whether to withdraw the subpoena for Mr. Simas’s testimony. See Letter
for W. Neil Eggleston, Counsel to the President, from the Hon. Darrell E. Issa,
Chairman, Committee on Oversight and Government Reform, House of Repre-
sentatives (July 11, 2014). The White House provided that briefing on Tuesday,
July 15, the day before the hearing was to occur. Following the briefing, the
Committee indicated that Mr. Simas’s testimony remained necessary. It explained
that, during the briefing, White House staff “declined to discuss compliance with
the Committee’s document requests or even describe the process and identify
relevant officials involved in the decision to reopen the White House political
office.” Letter for W. Neil Eggleston, Counsel to the President, from the Hon.
Darrell E. Issa, Chairman, Committee on Oversight and Government Reform,
House of Representatives at 1 (July 15, 2014).
    The Committee has not adequately explained why, despite the information it
has already received concerning OPSO’s activities and the White House’s efforts
to ensure compliance with relevant statutes, it requires Mr. Simas’s public
testimony in order to satisfy the legitimate aims of its oversight investigation.
Although the Committee has now indicated that it needs additional information on
two specific topics, it has not explained why it must obtain that information from
Mr. Simas at a Committee hearing. And to the extent that the Committee has other
“outstanding questions for Mr. Simas,” id. at 2, the Committee has not identified
them, let alone explained why he must answer them at a public hearing. At this
point, it is not evident that further efforts at accommodation would be futile, and
hence that compelling an immediate presidential adviser to testify before Congress
is a justifiable next step. Because the Committee has not explained why (and it is
not otherwise clear that) Mr. Simas’s live testimony is “demonstrably critical” to
the responsible fulfillment of the Committee’s functions, we conclude that the
Committee has not met the standard that would apply for overcoming Mr. Simas’s
immunity from congressional compulsion to testify, assuming that immunity were
qualified rather than absolute.4



   4
      Even if it were appropriate to apply the Sealed Case standard for overcoming qualified executive
privilege in the context of congressional testimonial immunity, Mr. Simas’s testimonial immunity
would not have been overcome here. For the reasons set forth in the text, we do not believe that the
Committee could show that the testimony it demands from Mr. Simas is directly relevant to issues that
are central to the Committee’s investigation and that the information that would be obtained through
that testimony is not available from another source.




                                                 13

                 Opinions of the Office of Legal Counsel in Volume 38


                                         III.

   For the foregoing reasons, we conclude that Mr. Simas is immune from the
House Committee on Oversight and Government Reform’s subpoena to compel
him to testify about matters concerning his service to the President in the Office of
Political Strategy and Outreach.

                                               KARL R. THOMPSON
                                          Acting Assistant Attorney General
                                               Office of Legal Counsel




                                         14

