(Slip Opinion)

                 Testimonial Immunity Before Congress
                  of the Assistant to the President and
                   Senior Counselor to the President
The Assistant to the President and Senior Counselor to the President is absolutely immune
  from compelled congressional testimony in her capacity as a senior adviser to the Pres-
  ident.

                                                                           July 12, 2019

          LETTER OPINION FOR THE COUNSEL TO THE PRESIDENT

   On June 26, 2019, the Committee on Oversight and Reform of the
House of Representatives issued a subpoena seeking to compel Kellyanne
Conway, Assistant to the President and Senior Counselor to the President,
to testify on July 15. The Committee knew that the Executive Branch has
long maintained that the President’s senior advisers may not be compelled
to appear before Congress, but the Committee issued the subpoena based
upon its disagreement with that position. You have asked us to confirm
that testimonial immunity applies here. As explained below, we conclude
that Ms. Conway is absolutely immune from compelled congressional
testimony in her capacity as a senior adviser to the President.
   The Committee seeks Ms. Conway’s testimony concerning claims by
the Office of Special Counsel (“OSC”) that she violated the Hatch Act in
connection with media appearances and posts on her Twitter account.
OSC has statutory authority to investigate violations of the Hatch Act,
which bars federal employees from using their “official authority or
influence for the purpose of interfering with or affecting the result of an
election.” 5 U.S.C. § 7323(a)(1). On May 29, 2019, OSC provided your
office with a report concluding that Ms. Conway had “violated the Hatch
Act by using her official position to influence the 2018 midterm elections
and 2020 presidential election through both media appearances and social
media.” Report of Prohibited Political Activity Under the Hatch Act, OSC
File Nos. HA-19-0631, HA-19-3395, at 4 (May 30, 2019) (“OSC Re-
port”). On June 11, you responded by detailing a number of “grave legal,
factual, and procedural errors” in the report and requesting that it be
withdrawn. See Letter for Henry Kerner, Special Counsel, from Pat A.
Cipollone, Counsel to the President at 1 (June 11, 2019) (“June 11 Cipol-
lone Letter”). Two days later, OSC formally referred the report to the
President, made the report public, and recommended that Ms. Conway be
dismissed. The President did not accept OSC’s recommendation.

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              Opinions of the Office of Legal Counsel in Volume 43

   On June 13, the Committee on Oversight and Reform invited Ms. Con-
way to testify. You declined that invitation based on the well-settled
precedent, “consistently adhered to by administrations of both political
parties,” “for members of the White House staff to decline invitations
to testify before congressional committees.” Letter for Elijah E. Cum-
mings, Chairman, Committee on Oversight and Reform, from Pat A.
Cipollone, Counsel to the President (June 24, 2019). The Committee
responded on June 26 by issuing the subpoena. Representative Elijah
Cummings, the Committee’s Chairman, characterized as “baseless” the
Executive Branch’s position that the President’s senior advisers are “abso-
lutely immune” from compelled congressional testimony, stating that
“Congress has never accepted the claim that White House advisors are
absolutely immune.” Opening Statement, Hearing on “Violations of the
Hatch Act Under the Trump Administration” at 2 (June 26, 2019) (inter-
nal quotation marks omitted).
   This Office recently addressed in detail the testimonial immunity of
senior presidential advisers in an opinion concerning the former Counsel
to the President. Recognizing that the Executive Branch has invoked this
immunity for nearly 50 years, we reaffirmed that “Congress may not
constitutionally compel the President’s senior advisers to testify about
their official duties.” Testimonial Immunity Before Congress of the For-
mer Counsel to the President, 43 Op. O.L.C. __, *1 (May 20, 2019)
(“Immunity of the Former Counsel ”). This testimonial immunity is rooted
in the separation of powers and derives from the President’s status as the
head of a separate, co-equal branch of government. See id. at *3–7. Be-
cause the President’s closest advisers serve as his alter egos, compelling
them to testify would undercut the “independence and autonomy” of the
presidency, id. at *4, and interfere directly with the President’s ability to
faithfully discharge his responsibilities. Absent immunity, “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.” Immunity of the Assistant to
the President and Director of the Office of Political Strategy and Out-
reach From Congressional Subpoena, 38 Op. O.L.C. __, *3 (July 15,
2014) (“Immunity of the Assistant to the President ”). Congressional
questioning of the President’s senior advisers would also undermine the
independence and candor of executive branch deliberations. See Immunity
of the Former Counsel, 43 Op. O.L.C. at *5–7.


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   Testimonial Immunity Before Congress of the Senior Counselor to the President

   Ms. Conway qualifies as a senior presidential adviser entitled to im-
munity. Our opinions have recognized that this immunity extends to
“those trusted members of the President’s inner circle ‘who customarily
meet with the President on a regular or frequent basis,’ and upon whom
the President relies directly for candid and sound advice.” Immunity of the
Assistant to the President, 38 Op. O.L.C. at *2 (quoting Memorandum for
John D. Ehrlichman, Assistant to the President for Domestic Affairs, from
William H. Rehnquist, Assistant Attorney General, Office of Legal Coun-
sel, Re: Power of Congressional Committee to Compel Appearance or
Testimony of “White House Staff ” at 7 (Feb. 5, 1971)). After serving as
the President’s campaign manager in 2016, Ms. Conway joined the Ad-
ministration as one of his principal advisers. See, e.g., Michael D. Shear
& Maggie Haberman, Trump Rewards His Campaign Manager With Role
of Counselor, N.Y. Times, Dec. 23, 2016, at A16 (quoting the President-
elect describing her as a “close adviser” and “part of my senior team”).
Ms. Conway remains among the President’s “closest” and “most senior”
aides. See June 11 Cipollone Letter at 1, 3. We understand that she meets
with the President on a daily basis and on a wide range of issues, includ-
ing communications matters and various areas of domestic policy. She
maintains an office in the West Wing, travels frequently with the Presi-
dent, and often speaks on television on his behalf. Ms. Conway partici-
pates in sensitive internal deliberations with the President and other top
advisers on critical issues. As a member of the President’s inner circle,
she may not be compelled by a congressional committee to testify about
matters related to her official duties. See Immunity of the Former Counsel,
43 Op. O.L.C. at *1, *21.
   The subject of the subpoenaed testimony plainly concerns Ms. Con-
way’s official duties. The OSC Report claims that her public statements
on television and social media amounted to the use of her “official author-
ity or influence” to affect an election within the meaning of the Hatch
Act, 5 U.S.C. § 7323(a)(1). See OSC Report at 2, 6. The very premise of
the report is that Ms. Conway’s public statements arose in the course of
her official duties. Id. at 6 (claiming that she gave the interviews in ques-
tion “in her official capacity,” “[c]onsistent with her duties in the Admin-
istration”); id. at 14 (claiming that “the bulk of the” Twitter posts “were
related to her official duties”). Whether or not OSC was correct in believ-
ing that Ms. Conway used “official authority or influence” in violation of
the Hatch Act, there is no question that the Committee seeks Ms. Con-
way’s testimony in connection with matters related to her White House
duties.

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              Opinions of the Office of Legal Counsel in Volume 43

   Although Chairman Cummings has stated that the Committee wishes
to question Ms. Conway about her public statements on television and
social media—rather than her confidential communications with the
President—that distinction does not bear upon the applicability and pur-
pose of Ms. Conway’s immunity. In contrast with the doctrine of execu-
tive privilege, testimonial immunity is based upon the role of the White
House official, not the confidentiality of the particular communications at
issue. See Immunity of the Former Counsel, 43 Op. O.L.C. at *4. While
the immunity in part serves the confidentiality interests of the President,
it more fundamentally protects the independence and autonomy of the
office. See id. at *4, *17. Therefore, the Committee’s interest in ques-
tioning Ms. Conway about public, rather than confidential, matters is not
material to the applicability of the immunity itself.
   Nor does the Committee’s stated interest in allegations concerning
potential Hatch Act violations affect the applicability of testimonial
immunity. Congress frequently claims an interest in investigating allega-
tions of official impropriety, yet the Executive Branch has never suggest-
ed such an interest negates testimonial immunity. To the contrary, the
White House has repeatedly invoked immunity in such cases. See, e.g.,
id. at *10 (discussing a White House Counsel’s refusal to testify about
corruption allegations against a cabinet officer); id. at *11 (discussing a
former White House Counsel’s refusal to testify about U.S. attorney
resignations in 2007). And in 2014, this Office specifically advised that
testimonial immunity would apply in response to a subpoena issued by the
Committee concerning potential Hatch Act violations. See Immunity of the
Assistant to the President, 38 Op. O.L.C. at *1, *12. Testimonial immuni-
ty would provide scant protection if it gave way whenever a congressional
committee attempted to compel testimony based on claims of improper or
unlawful activity by those advisers or other executive branch officials.
   We conclude that Ms. Conway may not be compelled to testify before
the Committee on Oversight and Reform about the allegations in OSC’s
report. The President may lawfully direct her not to appear on July 15,
and she may not be penalized for following such a direction. See Immuni-
ty of the Former Counsel, 43 Op. O.L.C. at *19–21.

                                       STEVEN A. ENGEL
                                     Assistant Attorney General
                                      Office of Legal Counsel



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