Another White House-Congress collision course?

In yet another flare-up between the Obama administration and Congress over presidential powers, White House counsel Neil Eggleston has declared that White House staffers who give presidential advice are immune from testimony on the Hill. This position is reminiscent of a George W. Bush era conflict over the former president’s refusal to allow certain White House advisers to testify in response to congressional subpoenas.

In the present case, the House Committee on Oversight and Government Reform has subpoenaed testimony from David Simas, the director of the White House Office of Political Strategy and Outreach (OPSO), regarding some of the alleged political activities of that office. The White House maintains that it has provided the committee with sufficient information about the operations of OPSO.  Committee chairman Darrell Issa (R-Calif.) has responded that the committee cannot properly fulfill its investigatory role without direct testimony by the Office director.

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The importance of the current controversy is that it highlights yet again conflicting institutional perspectives about the powers and prerogatives of the executive branch and of the president’s powers. As a presidential candidate in his first run for the office, Barack Obama made direct criticisms of what he saw as overreaches of presidential powers in the Bush era and he pledged to respect the constitutional boundaries of the presidency and Congress’s authority. Yet during his presidency, Obama, like his predecessor, has been embroiled in numerous controversies regarding the scope and limits of his powers, even resulting in a possible lawsuit against him by the House of Representatives.

The White House position is unyielding in its claim of immunity against testimony for a White House staffer. According to Eggleston: “The committee’s effort to compel Mr. Simas’s testimony threatens longstanding interests of the executive branch in preserving the president’s independence and autonomy, as well as his ability to obtain candidate advice and counsel to aid him in the discharge of his constitutional duties.” Therefore: “Mr. Simas is immune from congressional compulsion to testify on matters relating to his official duties”.

Not surprisingly, Issa rejected this argument and convened his committee to further pursue the matter. Whether he is constitutionally correct or not in each of his disputes with the White House, Issa at least is relentless. There is no easy endgame to this conflict, unless Simas testifies.

Assuming the controversy continues, it is worth examining the merits of the claim of White House staff immunity from testimony. The White House argument ultimately fails on two counts: (1) past precedents of White House staff members testifying on the Hill; (2) a compelling legal opinion issued in the earlier Bush-era controversy.

First, although the Obama White House is not unique in asserting the case for immunity from testimony, there is ample precedent for White House staff testimony dating back to the at least the 1970s. Nixon White House aides Donald Rumsfield and Peter Flanigan testified before Congress. After the Watergate scandal additional White House staffers would testify as well, including White House Counsel John Dean. President Gerald Ford even appeared before a congressional committee to discuss his decision to pardon Nixon. Carter White House Counsel Lloyd Cutler and National Security Adviser Zbigniew Brzezinski appeared before Congress. During the Clinton years Cutler, as special counsel to the president, along with Deputy Chief of Staff Harold Ickes and Senior Advisor Bruce Lindsey, testified before Congress. George W. Bush’s National Security Adviser Condoleezza Rice appeared before a congressional committee in 2004.

Second, in 2008, the Bush administration articulated the position that presidential advisers “are absolutely immune from testimonial compulsion by a Congressional committee.” The U.S. district court of D.C. firmly rejected that argument in an opinion that equally undercuts the current White House position in stating that the absolute immunity claim, even for senior-level White House aides, “is without any support in the case law”. Furthermore, “compliance with a congressional subpoena is a legal requirement”.  The court thoroughly repudiated what it saw as ultimately a presidential claim of “independence from congressional and judicial checks”.

There is precedent nonetheless for the position that certain discussions in the White House are “presumptively privileged” and that Congress’s power of inquiry too is not absolute. Presidential advisers and some other high-level staff members are entitled to some degree of protection in giving counsel to the president. Ultimately, this presumption that advisers may give candid advice does not provide a total blanket protection from testimony, as Congress’s legitimate interests in conducting investigations must be weighed against any presidential claim of immunity.

So we are back to the easy resolution: respect Congress’s authority and testify. Of course, a White House adviser may choose not to answer certain questions posed during a hearing, on the basis that he or she would be violating confidentiality. But stiff-arming the committee with a claim that the legislative branch has no interest or authority profoundly disrespects the institution and representative government.

Rozell is acting dean of the School of Policy, Government, and International Affairs at George Mason University. Sollenberger is associate provost at University of Michigan-Dearborn. They are co-authors of the book The President’s Czars: Undermining Congress and the Constitution.