(Slip Opinion)

1

Testimonial Immunity Before Congress of 

the Former Counsel to the President

The immunity of the President’s immediate advisers from compelled congressional 

testimony on matters related to their official responsibilities has long been recognized 

and arises from the fundamental workings of the separation of powers. This immunity 

applies to former senior advisers such as the former White House Counsel. Accordingly, the former Counsel is not legally required to appear and testify about matters related to his official duties as Counsel to the President. 

The President does not waive an adviser’s immunity from compelled congressional 

testimony by authorizing disclosure of any particular information. The disclosure’s 

impact on executive privilege does not ultimately bear on any underlying immunity 

from compelled testimony. 

Because Congress may not constitutionally compel the former Counsel to testify about his 

official duties, he may not be civilly or criminally penalized for following a presidential directive not to appear. The same rationale applies equally to an exercise of inherent contempt powers against a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee. 

May 20, 2019

MEMORANDUM FOR THE COUNSEL TO THE PRESIDENT

On April 22, 2019, the Committee on the Judiciary of the House of 

Representatives subpoenaed Donald F. McGahn II, the former Counsel to 

the President, to testify about matters described in the report of Special 

Counsel Robert S. Mueller, III. You have asked whether Mr. McGahn is 

legally required to appear.

We provide the same answer that the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally 

compel the President’s senior advisers to testify about their official duties.

This testimonial immunity is rooted in the constitutional separation of 

powers and derives from the President’s independence from Congress. As 

Attorney General Janet Reno explained, “[s]ubjecting a senior presidential 

advisor to the congressional 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 with Respect to Clemency Decision, 23 Op. 

O.L.C. 1, 5 (1999) (“Reno Opinion”). Yet Congress may no more summon the President to a congressional committee room than the President 

may command Members of Congress to appear at the White House. See 

Memorandum for Edward C. Schmults, Deputy Attorney General, from 
Opinions of the Office of Legal Counsel in Volume 43

2

Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel 

at 2 (July 29, 1982) (“Olson Memorandum”).

Although the White House has opposed sending senior advisers to testify for almost as long as there has been an Executive Office of the President, Assistant Attorney General William Rehnquist first described the 

legal basis for immunity in a 1971 memorandum. See Memorandum for 

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” (Feb. 5, 1971) (“Rehnquist Memorandum”). The Rehnquist Memorandum has been consistently reaffirmed by 

administrations of both political parties, most recently during the Obama 

Administration. See, e.g., Immunity of the Assistant to the President and 

Director of the Office of Political Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C. __, *1 & n.1 (July 15, 2014) (“Immunity 

of the Assistant to the President ”).

We believe that these established principles apply to bar the Committee 

from compelling Mr. McGahn to testify. The Counsel to the President 

clearly qualifies as a senior adviser entitled to testimonial immunity.

Attorney General Reno reached that conclusion in her 1999 opinion, and 

this Office has made the same determination on at least three other occasions. We have also recognized that the immunity continues to apply after 

the Counsel leaves the White House. See Immunity of the Former Counsel 

to the President from Compelled Congressional Testimony, 31 Op. O.L.C. 

191, 192 (2007) (“Immunity of the Former Counsel ”).

The Chairman of the Committee has suggested that the justification for 

Mr. McGahn’s testimonial immunity is undermined by the President’s 

decision not to assert executive privilege over the redacted version of the 

Special Counsel’s report that the Attorney General released last month.

See, e.g., Letter for Donald F. McGahn II, from Jerrold Nadler, Chairman, 

Committee on the Judiciary, U.S. House of Representatives at 1 (May 17, 

2019) (“Nadler Letter”). But the question whether an adviser need comply 

with a subpoena purporting to require an appearance is different from the 

question whether the adviser’s testimony would itself address privileged 

matters. Therefore, the public disclosure of the Special Counsel’s report 

does not have any legal bearing upon the force of the congressional subpoena. For these reasons, and consistent with nearly 50 years of executive 

branch precedent, we conclude that Mr. McGahn is not legally required to 

appear and testify before the Committee.
Testimonial Immunity Before Congress of the Former Counsel to the President

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I.

Since the 1970s, this Office 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. Memorandum for All Heads of Offices, Divisions, Bureaus 

and Boards of the Department of Justice, from John M. Harmon, Acting 

Assistant Attorney General, Office of Legal Counsel, Re: Executive 

Privilege at 5 (May 23, 1977) (“Harmon Memorandum”); see also 

Rehnquist Memorandum at 7 (“The President and his immediate advisers—that is, those who customarily meet with the President on a regular 

or frequent basis—should be deemed absolutely immune from testimonial 

compulsion by a congressional committee.”). Indeed, this Office has 

endorsed that legal principle on more than a dozen occasions, over the 

course of the last eight presidential administrations.1

 1 See Immunity of the Assistant to the President, 38 Op. O.L.C. at *1; Letter for Fred F. 

Fielding, Counsel to the President, from Steven G. Bradbury, Principal Deputy Assistant 

Attorney General, Office of Legal Counsel at 1–2 (Aug. 1, 2007) (“Bradbury Letter”); 

Immunity of the Former Counsel, 31 Op. O.L.C. at 191; Reno Opinion, 23 Op. O.L.C. 

at 4; Immunity of the Counsel to the President from Compelled Congressional Testimony, 

20 Op. O.L.C. 308, 308 (1996) (“Immunity of the Counsel to the President ”); Letter for 

Jack Brooks, Chairman, Committee on the Judiciary, U.S. House of Representatives, from 

Nicholas E. Calio, Assistant to the President for Legislative Affairs at 1 (June 16, 1992)

(“Calio Letter”); Olson Memorandum at 2; Memorandum for Rudolph W. Giuliani, 

Associate Attorney General, from Theodore B. Olson, Assistant Attorney General, Office 

of Legal Counsel, Re: Congressional Demand for Deposition of Counsel to the President 

Fred F. Fielding at 2 (July 23, 1982) (“Congressional Demand for Deposition of Counsel

”); 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 at 1 (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 at 5 (Aug. 11, 1977); 

Harmon Memorandum at 5; Letter to Phillip E. Areeda, Counsel to the President, from 

Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept. 25, 1974)

(enclosing a memorandum, hereinafter “Scalia Memorandum”); Memorandum for John 

W. Dean III, Counsel to the President, from Roger C. Cramton, Assistant Attorney 

General, Office of Legal Counsel, Re: Availability of Executive Privilege Where Congressional Committee Seeks Testimony of Former White House Official on Advice Given 

President on Official Matters at 6 (Dec. 21, 1972) (“Cramton Memorandum”); Memorandum for John W. Dean III, Counsel to the President, from Ralph E. Erickson, Assistant 

Attorney General, Office of Legal Counsel, Re: Appearance of Presidential Assistant 
Opinions of the Office of Legal Counsel in Volume 43

4

This testimonial immunity is distinct from, and broader than, executive 

privilege. Like executive privilege, the immunity protects confidentiality 

within the Executive Branch and the candid advice that the Supreme 

Court has acknowledged is essential to presidential decision-making. See 

United States v. Nixon, 418 U.S. 683, 705 (1974) (“Human experience 

teaches that those who expect public dissemination of their remarks 

may well temper candor with a concern for appearances and for their 

own interests to the detriment of the decisionmaking process.”). But the 

immunity extends beyond answers to particular questions, precluding 

Congress from compelling even the appearance of a senior presidential 

adviser—as a function of the independence and autonomy of the President 

himself. In this regard, the President’s immediate advisers are constitutionally distinct from the heads of executive departments and agencies, 

whose offices are created by acts of Congress, whose appointments require the Senate’s advice and consent, and whose responsibilities entail 

the administration of federal statutes. Those officers can and do testify 

before Congress. The President’s immediate advisers, however, exercise 

no statutory authority and instead act solely to advise and assist the President. Their independence from Congress reflects that of the President.

A.

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.” Immunity of the Assistant to the 

President, 38 Op. O.L.C. at *3. As Assistant Attorney General Theodore 

Olson explained in 1982: “The President is a separate branch of government. He may not compel congressmen to appear before him. As a matter 

of separation of powers, Congress may not compel him to appear before 

it.” Olson Memorandum at 2. The President’s immediate advisers are an 

extension of the President and are likewise entitled to absolute immunity 

from compelled congressional testimony.

In 2014, our most recent opinion on the topic described the bases for 

this immunity in detail. “For the President’s absolute immunity to be fully 

meaningful,” we explained, “and for these separation of powers principles 

 

Peter M. Flanigan Before a Congressional Committee at 1 (Mar. 15, 1972) (“Erickson 

Memorandum”); Rehnquist Memorandum at 7.
Testimonial Immunity Before Congress of the Former Counsel to the President

5

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.” Immunity of the Assistant to the President, 38 Op. O.L.C. at *2.

The demands of the office require the President to rely on senior advisers 

who serve “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.” Id. at *3 (quoting Reno 

Opinion, 23 Op. O.L.C. at 5); see also 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 information and analysis supplied by 

advisers.”).

There are dozens of congressional committee and subcommittees with 

the authority to conduct hearings and subpoena witnesses. 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.” Immunity of the Assistant to the President, 38 Op. O.L.C. at *3.

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,” ultimately subordinating senior presidential advisers to Congress rather than the President.

Id.; see also Loving v. United States, 517 U.S. 748, 757 (1996) (“Even 

when a branch does not arrogate power to itself . . . the separation-ofpowers doctrine requires that a branch not impair another in the performance of its constitutional duties.”).

The immunity of senior presidential advisers also protects the Executive Branch’s strong interests in confidentiality as well as the President’s 

ability to obtain sound and candid advice. As the Supreme Court 

has recognized, “[a] President and those who assist him 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 
Opinions of the Office of Legal Counsel in Volume 43

6

privately.” Nixon, 418 U.S. at 708. While a senior presidential adviser, 

like other executive officials, could rely on executive privilege to decline 

to answer specific questions at a hearing, the privilege is insufficient to 

ameliorate several threats that compelled testimony poses to the independence and candor of executive councils.

First, compelled congressional testimony “create[s] an inherent and 

substantial risk of inadvertent or coerced disclosure of confidential information,” despite the availability of claims of executive privilege with 

respect to the specific questions asked during such testimony. Immunity 

of the Assistant to the President, 38 Op. O.L.C. at *4. As we explained 

in 2014, senior presidential advisers 

could be asked, under the express or implied threat of contempt of 

Congress, a wide range of unanticipated and hostile questions about 

highly sensitive deliberations 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.

Id.; see also Congressional Demand for Deposition of Counsel, supra 

note 1, at 2 (“A witness before a Congressional committee may be 

asked—under threat of contempt—a wide range of unanticipated questions about highly sensitive deliberations and thought processes. He 

therefore may be unable to confine his remarks only to those which do not 

impair the deliberative process.”).

Second, even “[t]he 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.” Immunity of the Assistant to the President, 38 Op. O.L.C. at *4. This is true whether or not the 

President might ultimately assert executive privilege over the testimony in 

question, given the adviser’s uncertainty over whether a particular matter 

will become the subject of future congressional inquiry and whether the 

President would choose to incur the political costs associated with invoking the privilege.

Finally, given the frequency with which the testimony of a senior presidential adviser—whose sole and daily responsibility is to advise and 
Testimonial Immunity Before Congress of the Former Counsel to the President

7

assist the President—would fall within the scope of executive privilege, 

compelling the adviser’s appearance is not likely to promote any valid 

legislative interests. Coercing senior presidential advisers into situations

where they must repeatedly decline to provide answers, citing executive 

privilege, would be inefficient and contrary to good-faith governance. The 

President’s immediate advisers, if compelled to testify, are unlikely to 

answer many of the Members’ questions, suggesting that the hearing itself 

will not serve any legitimate purpose for the Committee.

B.

The Executive Branch’s position on testimonial immunity reflects historical practices dating back nearly to the 1939 establishment of the 

Executive Office of the President. As Assistant Attorney General Antonin 

Scalia explained in a 1974 memorandum, “at least since the Truman 

Administration,” presidential advisers “have appeared before congressional committees only where the inquiry related to their own private 

affairs or where they had received Presidential permission.” Scalia Memorandum, supra note 1, at 6. Although Presidents have occasionally permitted such testimony, the long-standing policy has been to decline invitations for voluntary appearances and to resist congressional subpoenas for 

involuntary ones.

In surveying the history through 1971, Assistant Attorney General 

Rehnquist described the earliest application of the policy to be inconclusive and at times inconsistent. See Rehnquist Memorandum at 4–6. But 

even when senior presidential advisers did appear, those appearances were 

frequently accompanied by a claim of legal privilege not to do so. Assistant Attorney General Rehnquist thus described the claim as an absolute 

testimonial immunity for the President’s immediate advisers, see id. at 7, 

and this Office has reaffirmed and expanded upon that conclusion in the 

decades since. The following examples, while not exhaustive, demonstrate 

the strong historical foundation for the Executive Branch’s position that 

Congress may not compel the President’s senior advisers to appear and 

testify.

In 1944, during the Administration of Franklin D. Roosevelt, a subcommittee of the Senate Committee on Agriculture and Forestry subpoenaed Jonathan Daniels, an Administrative Assistant to President 

Roosevelt, to testify about his reported attempts to compel the resignation of the Rural Electrification Administrator. See Administration of 

the Rural Electrification Act: Hearing on S. 197 Before a Subcomm. of 
Opinions of the Office of Legal Counsel in Volume 43

8

the S. Comm. on Agric. and Forestry, 78th Cong., pt. 3, at 611–28, 629 

(1944). Mr. Daniels appeared at the hearing but advised that he could not 

answer questions that would concern his confidential relationship with the 

President. Id. After the hearing ended with the subcommittee threatening 

contempt, Mr. Daniels wrote to the subcommittee and reiterated his belief 

that the subcommittee could not compel his testimony. See id. at 740.

However, he stated that the President had determined that his testimony 

would not be contrary to the public interest and that he therefore was 

willing to appear in the future. See id.; see also id. at 695–740. The New 

York Times reported that “[w]ith Mr. Daniels’ agreement to testify disappeared the possibility of using his previous defiance as the first test of the 

division between executive and legislative power before the Senate.”

Daniels to Answer Senators’ Queries: President Agrees, N.Y. Times, 

Mar. 5, 1944, at 1.

The first outright refusal of a presidential adviser to appear apparently 

occurred during the Truman Administration, in 1948, when a special 

subcommittee of the House Committee on Education and Labor twice 

subpoenaed John R. Steelman, an Assistant to the President, to testify 

about his communications with President Truman regarding administration of the Taft-Hartley Act during a strike. See Investigation of GSI 

Strike: Hearing Before a Special Subcomm. of the H. Comm. on Educ. and 

Labor, 80th Cong. 347–53 (1948). Mr. Steelman declined to comply and 

returned the subpoenas with a letter stating: “[I]n each instance the President directed me, in view of my duties as his Assistant, not to appear 

before your subcommittee.” H.R. Rep. No. 80-1595, at 3 (1948).

During the Eisenhower Administration, in 1955, a subcommittee of the 

Senate Committee on the Judiciary invited the President’s Chief of Staff, 

Sherman Adams, to testify about a contract between the Atomic Energy 

Commission and two power companies. He declined, citing in part his 

“official and confidential relationship with the President.” Power Policy, 

Dixon-Yates Contract: Hearing Before the Subcomm. on Antitrust and 

Monopoly of the S. Comm. on the Judiciary, 84th Cong., pt. 2, at 675–76, 

779 (1955). Later, in 1958, Mr. Adams testified, with President Eisenhower’s approval, before a House subcommittee concerning allegations of 

impropriety relating to his relationship with a New England industrialist.

Investigation of Regulatory Commissions and Agencies: Hearing Before 

a Subcomm. of the H. Comm. on Interstate and Foreign Commerce, 85th 

Cong., pt. 10, at 3712–40 (1958). 

During the Administration of President Lyndon B. Johnson, in 1968, 

the Senate Committee on the Judiciary requested the testimony of Associ-
Testimonial Immunity Before Congress of the Former Counsel to the President

9

ate Special Counsel to the President W. DeVier Pierson to testify concerning the nomination of Associate Justice Abe Fortas to be Chief Justice of 

the United States. The inquiry concerned whether Justice Fortas had 

inappropriately participated in developing certain legislation. Mr. Pierson 

responded that “[i]t has been firmly established, as a matter of principle 

and precedents, that members of the President’s immediate staff shall not 

appear before a Congressional committee to testify with respect to the 

performance of their duties on behalf of the President.” Nominations of 

Abe Fortas and Homer Thornberry: Hearing Before the S. Comm. on the 

Judiciary, 90th Cong., pt. 2, at 1348 (1968). He continued: “This limitation, which has been recognized by the Congress as well as the Executive, 

is fundamental to our system of government. I must, therefore, respectfully decline the invitation to testify in these hearings.” Id.

In 1972, during the Nixon Administration, the Senate Committee on the 

Judiciary invited Peter M. Flanigan, an Assistant to the President, to 

testify. This Office advised that Mr. Flanigan occupied “a close and 

confidential relationship with the President and share[d] the President’s 

immunity from congressional process.” Erickson Memorandum, supra 

note 1, at 1. Our disposition was clear: “[I]t has been firmly established 

that members of the President’s immediate staff may not appear before a

congressional committee to testify with respect to the performance of 

their duties.” Id.

2

In 1979, during the Carter Administration, Special Assistant to the 

President Sarah Weddington was invited to testify before the Senate 

Human Resources Committee as part of a hearing on “Women in the 

Coming Decade.” At the instruction of the Counsel to President, she 

declined to appear, explaining that “it is White House policy for personal 

aides to the President to decline invitations to testify before Congressional

committees.” Letter for Harrison A. Williams, U.S. Senate, from Sarah 

Weddington, Special Assistant to the President at 1 (Jan. 31, 1979)

 2 In connection with the Watergate investigations, President Nixon reached an agreement with the Senate’s Watergate Select Committee to authorize current and former 

White House officials to appear voluntarily and under oath before the committee in closed 

session. See Remarks Announcing Procedures and Developments in Connection with the 

Watergate Investigations (Apr. 17, 1973), Pub. Papers of Pres. Richard Nixon 298, 298–

99 (1973). President Nixon later determined that he would not claim executive privilege 

over the subject matters of the testimony and would allow the witnesses to testify in open 

hearings. See Statements About the Watergate Investigations (May 22, 1973), Pub.

Papers of Pres. Richard Nixon 547, 554 (1973). He therefore waived the testimonial 

immunity to authorize those appearances. 
Opinions of the Office of Legal Counsel in Volume 43

10

(“Weddington Letter”). She offered, however, to meet informally with 

committee members or staff to discuss related programs and proposals.

Id. at 2.

In 1980, the Subcommittee on Investigations of the House Committee 

on Armed Services requested the testimony of Deputy Assistant to the 

President for National Security Affairs David Aaron concerning leaks to 

The Washington Post. President Carter directed Mr. Aaron not to appear.

The Counsel to the President, Lloyd N. Cutler, explained that “Congress 

has always respected the privilege of the President to decline requests that 

the President himself or his immediate White House advisors appear to 

testify before Congressional committees,” instead provided a sworn 

affidavit by Mr. Aaron denying the allegations, and offered to make Mr. 

Aaron available for an interview or deposition under oath. Letter for

Samuel S. Stratton, Chairman, Subcommittee on Investigation of the 

Committee on Armed Services, U.S. House of Representatives, from 

Lloyd N. Cutler, Counsel to the President at 1–2 (Sept. 30, 1980).

In 1982, during the Reagan Administration, the Senate Labor and Human Resources Committee sought the testimony of Counsel to the President Fred F. Fielding concerning allegations of corruption against Secretary of Labor Raymond Donovan. Mr. Fielding declined to appear and 

testify. See Olson Memorandum at 1–4 (explaining the legal basis for 

that decision). Deputy Attorney General Edward C. Schmults notified 

the Committee that, “[a]s an institutional matter, the President cannot 

permit his Counsel to provide sworn testimony to the Legislative Branch 

regarding the performance of his duties,” but offered to arrange for written responses to a reasonable number of written inquiries. Letter for 

Orrin G. Hatch, Chairman, Committee on Labor and Human Resources,

U.S. Senate, from Edward C. Schmults, Deputy Attorney General at 2–3 

(Apr. 19, 1983) (“Schmults Letter”).

In 1992, during the George H.W. Bush Administration, the House 

Committee on the Judiciary requested that C. Boyden Gray, Counsel to 

the President, and Nicholas Rostow, Special Assistant to the President and 

a Senior Director for Legal Affairs at the National Security Council, 

testify concerning Bush Administration policies towards Iraq prior to the 

first Gulf War. The White House declined, citing “the longstanding practice of the Executive Branch to decline requests for testimony by members of the President’s personal staff.” Calio Letter, supra note 1, at 1.

In 1999, President Clinton directed Counsel to the President Beth Nolan not to appear in response to a subpoena from the House Committee on 

Government Reform and Oversight concerning a clemency decision.
Testimonial Immunity Before Congress of the Former Counsel to the President

11

President Clinton relied on an opinion from Attorney General Reno that 

concluded that “the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony” 

on matters related to the performance of official duties. Reno Opinion, 

23 Op. O.L.C. at 4.

In 2007, during the George W. Bush Administration, the House Committee on the Judiciary subpoenaed former Counsel to the President 

Harriet Miers to testify about the Department of Justice’s decision to 

request the resignation of certain United States Attorneys. President Bush 

directed Ms. Miers not to testify after this Office concluded that she was 

“immune from compelled congressional testimony about matters . . . that 

arose during her tenure as Counsel to the President and that relate to her 

official duties in that capacity.” Immunity of the Former Counsel, 31 Op. 

O.L.C. at 193.

Also in 2007, the Senate Committee on the Judiciary subpoenaed the 

testimony of Karl Rove, the Deputy White House Chief of Staff, on the 

same subject. This Office confirmed that Mr. Rove was “immune from 

compelled congressional testimony about matters (such as the U.S. Attorney resignations) that arose during his tenure as an immediate presidential 

adviser and that relate to his official duties in that capacity.” Bradbury 

Letter, supra note 1, at 1–2. In 2008, a subcommittee of the House Committee on the Judiciary also subpoenaed Mr. Rove, and he was again 

directed not to testify. See Letter for Robert D. Luskin, Patton Boggs 

LLP, from Fred F. Fielding, Counsel to the President at 1 (July 9, 2008).

In 2014, during the Obama Administration, the House Committee on 

Oversight and Government Reform issued a subpoena to David Simas to 

testify about matters related to his official responsibilities as Assistant to 

the President and Director of the Office of Political Strategy and Outreach. In particular, the committee requested testimony regarding “the 

role and function of the White House Office of Political Strategy and 

Outreach” and the question “whether the White House [was] taking adequate steps to ensure that political activity by Administration officials 

complies with relevant statutes, including the Hatch Act.” Immunity of the 

Assistant to the President, 38 Op. O.L.C. at *1 (internal quotation marks 

omitted). This Office concluded that Mr. Simas was “immune from compulsion to testify before the [c]ommittee on these matters,” id., and he 

declined to testify.

The foregoing historical record demonstrates that the immunity of senior presidential advisers from congressional testimony is long-standing 

and has been repeatedly asserted against the requests of Congress. These 
Opinions of the Office of Legal Counsel in Volume 43

12

examples do not indicate that senior presidential advisers have always 

declined to testify before Congress. The practice of asserting testimonial 

immunity—just like the practice of asserting executive privilege—has 

long reflected the “spirit of dynamic compromise” that reflects the “efficient and effective functioning” of the political branches of government.

United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977).

Presidents have occasionally made senior advisers available to accommodate congressional requests, even while defending their legal authority to 

decline such requests. But these accommodations between the political 

branches do not compromise the underlying immunity of the President or 

his senior presidential advisers from compelled congressional testimony.

Nor do they nullify the many instances where Presidents have successfully asserted immunity and affirmatively directed their immediate aides not 

to testify before Congress.

C.

While the Executive Branch has asserted for 75 years that senior presidential advisers may decline to testify before Congress, and has formally 

asserted an immunity for nearly 50 years, neither the Supreme Court nor 

any court of appeals has specifically addressed the question. This is 

because disputes over congressional demands for information from the 

Executive Branch are inherently political, and the historical practice has 

been to resolve such questions in the political arena. When such conflicts 

have arisen, Congress has either acceded to the President’s claims of 

immunity or the Executive Branch has accommodated the congressional 

interest in some fashion. Only one district court has ever addressed the 

testimonial immunity of the President’s senior advisers, and that decision 

did not come until 2008. See Comm. on the Judiciary, U.S. House of 

Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). Although the 

district court held that presidential advisers were not entitled to absolute 

immunity from compelled congressional testimony, the court of appeals 

stayed that decision pending appeal, and the parties settled without any 

appellate decision on the merits.

Nonetheless, this Office has recognized that the Executive Branch’s 

long-standing position is consistent with related Supreme Court precedent. See Immunity of the Assistant to the President, 38 Op. O.L.C. at *5.

In Gravel v. United States, 408 U.S. 606 (1972), the Court held that 

legislative aides share in the constitutional immunity enjoyed by Members 

of Congress under the Speech or Debate Clause. Id. at 616–17. The Court 
Testimonial Immunity Before Congress of the Former Counsel to the President

13

reasoned that the Clause “was designed to assure a co-equal branch of 

the government wide freedom of speech, debate, and deliberation without 

intimidation or threats from the Executive Branch,” and “protect[ion] . . . 

against prosecutions that directly impinge upon or threaten the legislative 

process.” Id. at 616. Because “it is literally impossible . . . for Members 

of Congress to perform their legislative tasks without the help of aides 

and assistants,” the Court recognized that such aides “must be treated 

as the [Members’] alter egos.” Id. at 616–17. For purposes of immunity, 

the Court concluded, Members of Congress and their aides should be 

“treated as one.” Id. at 616 (internal quotation marks omitted). The same 

logic applies with respect to the President and his senior advisers. The 

failure to recognize the extension of the President’s immunity from compelled congressional testimony to senior advisers would call into question

the well-established extension of derivative immunity to congressional 

staffers.

It is true that in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court 

declined to extend Gravel’s alter-ego reasoning to a civil suit for damages 

against senior presidential advisers, and instead concluded that such 

advisers are entitled only to qualified immunity in those civil actions.

Id. at 810–11, 813–15. Harlow thus distinguished the President’s immediate advisers from the President himself, whom the Court held (in another 

decision issued the same day) to be absolutely immune from civil suits 

based on official acts. See Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).

Yet we have previously declined to extend Harlow to the context of 

testimonial immunity because the prospect of compelled congressional 

testimony raises separation of powers concerns that are not present in a 

civil damages lawsuit brought by a private party. Immunity of the Assistant to the President, 38 Op. O.L.C. at *5–7. Compelled congressional 

testimony “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 a judicially monitored [proceeding] does not.” Id. at *6. In a 

private lawsuit, the court “acts as a disinterested arbiter of a private dispute, not as a party in interest to the very lawsuit it adjudicates,” and it “is 

charged with impartially administering procedural rules designed to 

protect witnesses from irrelevant, argumentative, harassing, cumulative, 

privileged, and other problematic questions.” Id. By contrast, congressional hearings involving the President’s immediate advisers contain none 

of those assurances, and they threaten the President’s autonomy and 
Opinions of the Office of Legal Counsel in Volume 43

14

ability to receive sound and candid advice in a way that private civil 

damages suits do not. Cf. Archibald Cox, Executive Privilege, 122 U. Pa. 

L. Rev. 1383, 1429 (1974) (stating that as compared to a civil action, 

“[t]he need to protect aides and subordinates from reprisals on Capitol 

Hill and in the media of public debate is a thousand-fold greater in the 

case of congressional hearings, which are often the preserves of individual 

Senators and Congressmen not all of whom are invariably characterized 

by judicious self-restraint”).

We recognize that in Miers, a federal district court read Harlow to 

imply that senior presidential advisers do not enjoy absolute immunity 

from congressionally compelled testimony. See Miers, 558 F. Supp. 2d 

at 100–03. But we believe that the court did not adequately consider the 

different and heightened separation of powers concerns bearing upon 

the testimony of the President’s immediate advisers before Congress.

Moreover, the district court’s decision was stayed pending appeal. See

Comm. on the Judiciary of the U.S. House of Representatives v. Miers, 

542 F.3d 909, 910–11 (D.C. Cir. 2008) (per curiam). The case settled and 

the appeal was dismissed before any further action by the court of appeals. Comm. on the Judiciary of the U.S. House of Representatives v.

Miers, No. 08-5357, 2009 WL 3568649, at *1 (D.C. Cir. Oct. 14, 2009).

For the reasons set forth above, and in greater detail in our 2014 opinion, 

Immunity of the Assistant to the President, 38 Op. O.L.C. at *5–9, we 

respectfully disagree with the district court’s conclusion in Miers and 

adhere to this Office’s long-established position that the President’s 

immediate advisers are absolutely immune from compelled congressional 

testimony.

II.

Having reaffirmed the existence of the testimonial immunity of the 

President’s immediate advisers, we now consider its application to Mr. 

McGahn, the former Counsel to the President. Plainly, the Counsel to the 

President qualifies as an immediate adviser to the President. As Attorney 

General Reno recognized, “the Counsel serves as an immediate adviser to 

the President and is therefore immune from compelled congressional 

testimony.” Reno Opinion, 23 Op. O.L.C. at 4. Indeed, we have recognized the Counsel’s immunity from congressional testimony on multiple 

occasions. See, e.g., Immunity of the Former Counsel, 31 Op. O.L.C. at 

192 (“[T]he Counsel to the President ‘serves as an immediate adviser to 

the President and is therefore immune from compelled congressional 
Testimonial Immunity Before Congress of the Former Counsel to the President

15

testimony.’” (quoting Reno Opinion, 23 Op. O.L.C. at 4)); Immunity of 

the Counsel to the President, 20 Op. O.L.C. at 309 (“There is no question 

that the Counsel to the President falls within Assistant Attorney General 

Rehnquist’s description of the type of Presidential advisers who are immune from testimonial compulsion.”); Congressional Demand for Deposition of Counsel, supra note 1, at 2 (“I believe the Counsel to the President 

possesses an absolute privilege not to testify with regard to any matters 

relating to his official duties as legal adviser to the President.”).

In addition, we have recognized that testimonial immunity continues 

after the tenure of a particular Counsel to the President. As we explained 

in 2007, “[s]eparation of powers principles dictate that former presidents 

and former senior presidential advisers remain immune from compelled 

congressional testimony about official matters that occurred during their 

time as President or senior presidential advisers.” Immunity of the Former 

Counsel, 31 Op. O.L.C. at 192–93. The Supreme Court has explicitly 

recognized this principle in the context of executive privilege. The privilege must outlast the tenure of a particular President because, absent a 

guarantee of lasting confidentiality, “a President could not expect to 

receive the full and frank submissions of facts and opinions upon which 

effective discharge of his duties depends.” Nixon v. Adm’r of Gen. Servs., 

433 U.S. 425, 449 (1977) (adopting the view of the Solicitor General); see 

also United States v. Johnson, 383 U.S. 169 (1966) (applying the Speech 

or Debate Clause to a former Member of Congress).

In concluding that the former Counsel to the President retained her testimonial immunity, we relied upon the actions of former President Truman, who explained his own refusal to appear and testify before the 

House Committee on Un-American Activities in the following terms:

“[I]f the doctrine of separation of powers and the independence of the 

Presidency is to have any validity at all, it must be equally applicable to 

a President after his term of office has expired when he is sought to 

be examined with respect to any acts occurring while he is President.”

Immunity of the Former Counsel, 31 Op. O.L.C. at 193 (quoting Texts 

of Truman Letter and Velde Reply, N.Y. Times, Nov. 13, 1953, at 14 

(reprinting Nov. 12, 1953 letter by President Truman)). It is “just as 

important to the independence of the Executive that the actions of the 

President should not be subjected to the questioning by the Congress after 

he has completed his term of office as that his actions should not be 

questioned while he is serving as President.” Id. (quoting Text of Address 

by Truman Explaining to Nation His Actions in the White Case, N.Y. 

Times, Nov. 17, 1953, at 26). Because the immunity of senior presidential 
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16

advisers derives from the immunity of the President, this same logic 

extends to them as well.

Our 2007 conclusion in Immunity of the Former Counsel was consistent 

with the analysis of the immunity interests of former officials during the 

George H.W. Bush and Nixon Administrations. See Letter for Arthur B. 

Culvahouse, O’Melveny & Myers, from C. Boyden Gray, Counsel to 

the President at 1 (June 17, 1992) (“[I]t is long-standing White House 

policy not to assent to formal testimony to Congressional committees by 

former White House officials about matters occurring during their White 

House service.”). It is true that the President does not have the same need 

for the daily advice and assistance of his former advisers, as with his 

current advisers, yet the confidentiality interests associated with the 

advisers’ former role remain just as strong. See Cramton Memorandum, 

supra note 1, at 5–6 (“If advice from a staff member were protected from 

congressional and public scrutiny only for so long as the staff member 

remained employed in the White House, the protection would be significantly reduced. It would only be a question of time when staff turnovers 

or a change in administration would remove the shield.”).

Even more significantly, the risk to the separation of powers and to the 

President’s autonomy posed by a former adviser’s testimony on official 

matters continues after the conclusion of that adviser’s tenure. See id. at 6

(“[T]he same considerations that were persuasive to former President 

Truman would apply to justify a refusal to appear by such a former staff 

member, if the scope of his testimony is to be limited to his activities 

while serving in that capacity.”). Accordingly, consistent with our prior 

precedents, we find no material distinction between the compelled congressional testimony of current and former senior advisers to the President. Mr. McGahn’s departure as Counsel to the President does not alter 

his immunity from compelled congressional testimony on matters related 

to his service to the President.

III.

In this instance, the Committee seeks to question Mr. McGahn concerning matters addressed in the report of Special Counsel Robert S. Mueller, 

III, on the Investigation into Russian Interference in the 2016 Presidential 

Election. The Chairman of the Committee has suggested that the White 

House’s voluntary cooperation with this investigation and the President’s 

decision not to assert executive privilege over the Special Counsel’s 

report may undermine any claim that Mr. McGahn is immune from com-
Testimonial Immunity Before Congress of the Former Counsel to the President

17

pelled testimony. Nadler Letter at 1. However, the concept of immunity is 

distinct from, and broader than, the question whether executive privilege 

would protect a witness’s response to any particular question. See 

Rehnquist Memorandum at 4 (recognizing the “distinction between a 

claim of absolute immunity from even being sworn as a witness, and a 

right to claim privilege in answer certain questions in the course of one’s 

testimony as a witness”).3 The President does not waive an adviser’s 

immunity from compelled congressional testimony by authorizing disclosure of any particular information. To the contrary, Presidents have frequently authorized aides to share information as an accommodation to 

Congress, notwithstanding claims of immunity.

The immunity from compelled congressional testimony implicates fundamental separation of powers principles that are separate from the confidentiality of specific information. See supra Part I.A. The constitutional 

interest in protecting the autonomy and independence of the Presidency 

remains the same no matter whether the compelled testimony from a 

presidential adviser would implicate public or potentially privileged 

matters. The President does not waive his own immunity from compelled

congressional testimony by making public statements on a given subject.

It follows then that the derivative immunity of senior presidential advisers 

is not waived either.

Were the rule otherwise, Presidents could not offer partial accommodations to Congress without waiving all privileges or immunities bearing 

upon the subject. Such a rule would severely hinder the “spirit of dynamic 

compromise” and “implicit constitutional mandate to seek optimal accommodation” that currently facilitates resolution of inter-branch disputes 

over information. Am. Tel. & Tel. Co., 567 F.2d at 127. And such a rule 

would stand in marked contrast to many instances of historical practice in 

which senior advisers declined to testify before Congress, but instead 

offered accommodations through informal meetings or written responses.

See, e.g., Schmults Letter at 2–3; Weddington Letter at 1–2. Yet no one 

has viewed such accommodations, or the testimony of other executive 

advisers on similar subjects, to constitute a general waiver of immunity.

 3 The Reno Opinion described the testimonial immunity as “a separate legal basis that 

would support a claim of executive privilege for the entirety of the Counsel’s testimony, 

thereby eliminating any need for her to appear at the hearing.” 23 Op. O.L.C. at 4. We 

think that the Rehnquist Memorandum’s distinction between an immunity and a privilege 

reflects the more precise formulation, but the distinction appears to be merely a semantic 

one. 
Opinions of the Office of Legal Counsel in Volume 43

18

The Chairman’s suggestion that Mr. McGahn can no longer claim immunity appears to be based upon the assumption that the President waived 

executive privilege by authorizing Mr. McGahn and his senior aides to 

cooperate with the Special Counsel’s investigation. But the question of 

privilege is distinct from the issue of immunity. And in any event, the 

premise of the Committee’s position is incorrect. The sharing of information between one arm of the Executive Branch and another does not 

compromise the President’s interest in confidentiality. Indeed, in Nixon v.

Administrator of General Services, the Supreme Court rejected a separation of powers objection to the disclosure of presumptively confidential 

information because “[t]he Executive Branch remains in full control of the 

Presidential materials, and . . . the materials can be released only when 

release is not barred by some applicable privilege inherent in that branch.”

433 U.S. at 444. Information that was shared with the Special Counsel 

was shared within the Executive Branch. Such voluntary sharing does not 

waive confidentiality or the underlying privilege.

This conclusion is consistent with past assertions of executive privilege. In Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White House Staff, 

32 Op. O.L.C. 7 (2008), Attorney General Michael Mukasey advised that 

the President could assert executive privilege against Congress over 

memoranda recording interviews of White House witnesses with Department of Justice investigators. Id. at 9–13. As he explained, “[w]ere future 

presidents, vice presidents or White House staff to perceive that such 

voluntary cooperation would create records that would likely be made 

available to Congress (and then possibly disclosed publicly outside of 

judicial proceedings such as a trial), there would be an unacceptable risk 

that such knowledge could adversely impact their willingness to cooperate 

fully and candidly in a voluntary interview.” Id. at 11. Implicit in that 

explanation was the understanding that the White House’s voluntary 

cooperation with the Department’s investigation did not constitute a 

waiver of privilege against third parties outside the Executive Branch. So, 

too, the White House’s voluntary cooperation with the Special Counsel’s 

investigation did not effect a waiver of privilege, much less a waiver of 

testimonial immunity.

In contrast with the White House’s cooperation with the Special Counsel, the Attorney General’s public release of a redacted version of the 

Special Counsel’s report (with the President’s consent) does extinguish 

the Executive Branch’s confidentiality interests in the precise information 

that has already been revealed. But, as the D.C. Circuit has held, the
Testimonial Immunity Before Congress of the Former Counsel to the President

19

“release of a document only waives [executive] privileges for the document or information specifically released, and not for related materials.”

In re Sealed Case, 121 F.3d at 741; see id. (“[An] all-or-nothing approach 

has not been adopted with regard to executive privileges generally, or to 

the deliberative process privilege in particular.”). As Assistant Attorney 

General Scalia explained, the purposes underlying executive privilege 

“would be jeopardized if harmful information had to be disclosed merely 

because the President permitted the release of related information that 

could be revealed safely.” Scalia Memorandum, supra note 1, at 6–7.

Such a result “would have the effect of requiring the concealment of much 

information which would be released, merely because it was connected 

with sensitive information.” Id. at 7.

Thus, the public disclosure of particular information does not waive the 

Executive Branch’s confidentiality interests over the subject matters 

involved in the prior disclosure. See, e.g., Assertion of Executive Privilege 

Concerning the Dismissal and Replacement of U.S. Attorneys, 31 Op. 

O.L.C. 1, 8 (2007) (opinion of Acting Attorney General Paul Clement) 

(“The Department[ of Justice]’s accommodation with respect to some 

White House-Department communications does not constitute a waiver 

and does not preclude the President from asserting executive privilege 

with respect to White House materials or testimony concerning such 

communications.”). Consequently, the public disclosure of the Special 

Counsel’s report did not constitute a general waiver concerning Mr. 

McGahn’s communications with the President on those subjects or on any 

other subjects. And in any event, as discussed above, the disclosure’s 

impact on executive privilege with respect to particular subjects does not 

ultimately bear on Mr. McGahn’s underlying immunity from compelled 

testimony.

IV.

Because Congress may not constitutionally compel Mr. McGahn to testify about his official duties, the President may lawfully direct him not to 

appear in response to the House Judiciary Committee’s subpoena. Should 

the President provide that direction, Mr. McGahn may not constitutionally 

be penalized, civilly or criminally, for following it.

The Department of Justice has long recognized “that the contempt of 

Congress statute was not intended to apply and could not constitutionally 

be applied to an Executive Branch official who asserts the President’s 

claim of executive privilege.” Prosecution for Contempt of Congress of 
Opinions of the Office of Legal Counsel in Volume 43

20

an Executive Branch Official Who Has Asserted a Claim of Executive 

Privilege, 8 Op. O.L.C. 101, 102 (1984) (“Prosecution for Contempt ”); 

see also Application of 28 U.S.C. § 458 to Presidential Appointment of 

Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (“[T]he criminal contempt of Congress statute does not apply to the President or presidential 

subordinates who assert executive privilege.”). As Assistant Attorney 

General Olson explained, “the Constitution does not permit Congress to 

make it a crime for an official to assist the President in asserting a constitutional privilege that is an integral part of the President’s responsibilities 

under the Constitution.” Prosecution for Contempt, 8 Op. O.L.C. at 140.

To do so “would be to deter the President from asserting executive privilege and to make it difficult for him to enlist the aid of his subordinates in 

the process,” thereby “burden[ing] and immeasurably impair[ing] the 

President’s ability to fulfill his constitutional duties.” Id. at 134, 137.

Assistant Attorney General Walter Dellinger adhered to that reasoning in 

1995, recounting that the “application of the contempt statute against an 

assertion of executive privilege would seriously disrupt the balance between the President and Congress.” Application of 28 U.S.C. § 458 to 

Presidential Appointment of Federal Judges, 19 Op. O.L.C. at 356.

This Office has further confirmed that the same “principles . . . similarly shield a current or former senior adviser to the President from prosecution for lawfully invoking his or her immunity from compelled congressional testimony.” Whether the Department of Justice May Prosecute 

White House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 68 

(2008). Subjecting a senior presidential adviser to prosecution for asserting a good-faith claim of testimonial immunity would equally impose 

upon the President “‘the untenable position of having to place a subordinate at the risk of a criminal conviction and possible jail sentence in order 

for the President to exercise a responsibility he found necessary to the 

performance of his constitutional duty.’” Id. (quoting Prosecution for 

Contempt, 8 Op. O.L.C. at 136). In sum, “‘[t]o seek criminal punishment 

for those who have acted to aid the President’s performance of his duty 

would be . . . inconsistent with the Constitution.’” Id. at 69 (quoting 

Prosecution for Contempt, 8 Op. O.L.C. at 142).

We similarly believe that Congress could not lawfully exercise any 

inherent contempt authority against Mr. McGahn for asserting immunity.

The constitutional separation of powers bars Congress from exercising 

its inherent contempt power in the face of a presidential assertion of 

executive privilege. An attempt to exercise inherent contempt powers in 

such a circumstance would be without precedent and “would immeasura-
Testimonial Immunity Before Congress of the Former Counsel to the President

21

bly burden the President’s ability to assert the privilege and to carry out 

his constitutional functions.” Prosecution for Contempt, 8 Op. O.L.C. at 

136. This is so because, as Assistant Attorney General Olson concluded, 

“the same reasoning that suggests that the [criminal contempt] statute 

could not constitutionally be applied against a Presidential assertion of 

privilege applies to Congress’ inherent contempt powers as well.” Id. at

140 n.42. Congress may not impede the President’s ability to carry out his 

constitutionally assigned functions by “arrest[ing], bring[ing] to trial, and 

punish[ing] an executive official who asserted a Presidential claim of 

executive privilege.” Id. The same rationale applies equally to an exercise 

of inherent contempt powers against a senior aide who has complied with 

a presidential direction that he not provide testimony to a congressional 

committee. 

V.

The immunity of the President’s immediate advisers from compelled 

congressional testimony on matters related to their official responsibilities 

has long been recognized and arises from the fundamental workings of the 

separation of powers. This immunity applies to the former White House 

Counsel. Accordingly, Mr. McGahn is not legally required to appear and 

testify about matters related to his official duties as Counsel to the President.

STEVEN A. ENGEL

Assistant Attorney General

Office of Legal Counsel