(Slip Opinion)

1

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 President.

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 Report”). 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withdrawn.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 Cipollone 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. 
Opinions of the Office of Legal Counsel in Volume 43

2

On June 13, the Committee on Oversight and Reform invited Ms. Conway 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. Cummings, 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 “absolutely 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) (internal 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 Former 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. Because 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 Outreach 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.
Testimonial Immunity Before Congress of the Senior Counselor to the President

3

Ms. Conway qualifies as a senior presidential adviser entitled to immunity. 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 Counsel, 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 Administration 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 Presidentelect 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, including communications matters and various areas of domestic policy. She 

maintains an office in the West Wing, travels frequently with the President, and often speaks on television on his behalf. Ms. Conway participates 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. Conway’s official duties. The OSC Report claims that her public statements 

on television and social media amounted to the use of her “official authority 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 question “in her official capacity,” “[c]onsistent with her duties in the Administration”); id. at 14 (claiming that “the bulk of the” Twitter posts “were 

related to her official duties”). Whether or not OSC was correct in believing that Ms. Conway used “official authority or influence” in violation of 

the Hatch Act, there is no question that the Committee seeks Ms. Conway’s testimony in connection with matters related to her White House 

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

4

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 purpose of Ms. Conway’s immunity. In contrast with the doctrine of executive 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 questioning 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 allegations of official impropriety, yet the Executive Branch has never suggested 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 immunity 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 Immunity of the Former Counsel, 43 Op. O.L.C. at *19–21. 

STEVEN A. ENGEL

Assistant Attorney General

Office of Legal Counsel