Presidential Advisers’ Testimony Before Congressional Committees: An Overview
Released: 2014-12-15T00:00:00

Since the beginning of the federal government, Presidents have called upon executive branch officials to provide them with advice regarding matters of policy and administration. The Constitution recognized such relationships when it authorized the President, in Article II, Section 2, to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." There were, as well, reasons to expect that such advice, whether offered orally or in writing, would be held in confidence. The advice was for the President's consideration and his decision making. The matters involved were sensitive, perhaps bearing upon the foreign, military, economic, or law enforcement policy of the nation. Also, the provision, discussion, and use of such advice by the executive branch could affect its relationships with the other coequal constitutional branches. President George Washington and his Cabinet had these considerations in mind, as Secretary of State Thomas Jefferson's notes on their deliberations reflect, when they decided upon a response to a 1792 congressional request for information.

We had all considered, and were of one mind, first, that the House was an inquest, and therefore might institute inquiries. Second that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public; consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President....

The Cabinet, composed of the principal officers in each of the executive departments, failed, for several reasons, to develop as an important source of presidential advice. The department heads constituting the Cabinet were often chosen to satisfy interests that contributed significantly to the President's election. Considerations of partisanship, ideology, geography, public image and stature, and aptitude, among others, figured prominently in their selection. Sometimes the President was not personally well acquainted with these individuals and had only minimal confidence and trust in them. In a few cases, a political rival was included in the Cabinet.

It is also very likely that some activist Presidents were ill suited to the group deliberation of the Cabinet. Similarly, many Cabinet members might have felt unqualified, or were unwilling, to offer counsel to the President on matters outside of their immediate portfolios; their advice was perhaps limited to, and protective of, departmental interests. Finally, personal hostilities between or among department heads could result in such tumult within the Cabinet that little useful advice could be gained.

Consequently, Presidents generally looked to other quarters for advisers. One development in this regard was the creation of circles of advisers composed of both public officials and private citizens. President Andrew Jackson, whose election and White House tenure occurred in an era marked by violent political controversy and party instability, utilized an informal group of advisers which came to be known as the Kitchen Cabinet. The members represented "rising social groups as yet denied the prestige to which they felt their power and energies entitled them"—newspapermen, the President's private secretary, campaign organizers and officials from prior administrations, and longtime personal friends.

When John Tyler succeeded to the presidency upon the death of William Henry Harrison, he revived Jackson's practice. Deserted by Whigs and Democrats alike, Tyler resorted to a select circle of advisers composed of personal and political friends from his native Virginia—a college president, a state supreme court judge, four members of the state's delegation in the House of Representatives, and a Senator. Following this practice, several succeeding Presidents had informal groups of advisers that were given colorful names by the press. For example, for Grover Cleveland, it was a Fishing Cabinet; for Theodore Roosevelt, a Tennis Cabinet; for Warren G. Harding, a Poker Cabinet; and for Herbert Hoover, a Medicine Ball Cabinet.

Jackson's inclusion of his personal secretary in his Kitchen Cabinet reflects another line of development regarding presidential advisers. Beginning with Washington, Presidents sought to meet the demands of their office with the assistance of a single personal secretary, usually a relative, compensated from their own private resources. In 1833, Congress authorized the President to appoint, with the advice and consent of the Senate, a secretary "whose duty it shall be, under the direction of the President, to sign in his name and for him, all patents for lands sold or granted under the authority of the United States." Jackson named Andrew Jackson Donelson, his wife's nephew and current personal secretary, to this position, relieving himself of continued personal compensation of the young man. Ultimately, Congress appropriated funds to the Chief Executive in 1857 for an official household—a personal secretary, a steward to supervise the Executive Mansion, and a messenger.

Many years later, in 1929, Congress was persuaded to authorize an increase in the President's top personnel, adding two more secretaries and an administrative assistant. Appointed to these senior staff positions were presidential lieutenants, if not presidential intimates and advisers. When Franklin D. Roosevelt came to the presidency in 1933, he brought with him, from his New York gubernatorial experience, a new kind of advisory circle, composed of intellectuals, or at least a core group of Columbia University professors who were joined by other ideas people to form the "Brains Trust." Because there were an insufficient number of staff positions at the White House to accommodate them, these advisers were placed elsewhere in the executive branch, but, for the most part, directly served the President.

This staffing situation, coordination problems, and the development of a new administrative management concept prompted Roosevelt to create, by announcement, a study panel—the President's Committee on Administrative Management, under the leadership of Louis Brownlow, a prominent public administration practitioner—in 1936 to examine and make recommendations regarding these matters. Reporting some 10 months later, the Brownlow committee addressed presidential staffing in dramatic and detailed terms.

The President needs help. His immediate staff assistance is entirely inadequate. He should be given a small number of executive assistants who would be his direct aides in dealing with the managerial agencies and administrative departments of the government. These assistants, probably not exceeding six in number, would be in addition to the present secretaries, who deal with the public, with the Congress, and with the press and radio. These aides would have no power to make decisions or issue instructions in their own right. They would not be interposed between the President and the heads of his departments. They would not be assistant presidents in any sense. Their function would be, when any matter was presented to the President for action affecting any part of the administrative work of the Government, to assist him in obtaining quickly and without delay all pertinent information possessed by any of the executive departments so as to guide him in making his responsible decisions; and then when decisions have been made, to assist him in seeing to it that every administrative department and agency affected is promptly informed. Their effectiveness in assisting the President will, we think, be directly proportional to their ability to discharge their functions with restraint. They would remain in the background, issue no orders, make no decisions, emit no public statements. Men for these positions should be carefully chosen by the President from within and without the Government. They should be men in whom the President has personal confidence and whose character and attitude is [sic] such that they would not attempt to exercise power on their own account. They should be possessed of high competence, great physical vigor, and a passion for anonymity. They should be installed in the White House itself, directly accessible to the President. In the selection of these aides, the President should be free to call on departments from time to time for the assignment of persons who, after a tour of duty as his aides, might be restored to their old positions.

In addition to the proposed addition of six assistants to the President's staff, the committee's report also recommended vesting responsibility in the President for the continuous reorganization of the executive branch. Released to Congress on January 12, 1937, the report soon became lost in high politics. Three weeks after submitting the Brownlow committee's report to Congress, Roosevelt announced he wanted to enlarge the membership of the Supreme Court. His "court packing" plan not only fed congressional fears of a presidential power grab, but also so preoccupied Congress that the Brownlow committee's recommendations were ignored.

Executive Office of the President

Although efforts at gaining legislative approval of the Brownlow committee's recommendations lay in ruin in the spring of 1938, the President had not deserted the cause. By July, Roosevelt was meeting with Brownlow and the other committee members. The panel would not be officially reassembled, but he wanted each man's help with a reorganization authority proposal. The resulting measure empowered the President to propose reorganization plans, subject to a veto by a majority vote of disapproval in both houses of Congress, and to also appoint six administrative assistants.

After three days of discussion and debate, the House adopted the bill on March 8, 1939. Twelve days later, the Senate began considering the proposal. Following two days of sparring over amendments, the Senate adopted the bill. A quick conference cleared the measure for Roosevelt's signature on April 3. Earlier, the President had asked the Brownlow committee members to assist with the preparation of his initial reorganization plans.

Following consultations with Budget Bureau Director Harold D. Smith, the Brownlow group presented two reorganization proposals to Roosevelt on April 23. Plan 1, submitted to Congress on April 25, transferred certain agencies to the Executive Office of the President, but offered no explanation of that entity. In Plan 2, a presidential emergency council was abolished and most of its functions were transferred to the Executive Office. While both plans were acceptable to legislators, their effective dates were troublesome in terms of accommodating fiscal calendar necessities. By joint resolution, Congress provided that both plans would be effective on July 1, 1939. Following this action, the President, on September 8, issued E.O. 8248, formally organizing the Executive Office and, thereby, defining it in terms of its components. Brownlow, who drafted the initial reorganization plan, viewed the Executive Office as the institutional realization of administrative management and "the effective coordination of the tremendously wide-spread federal machinery." He called the initial version "a little thing" compared to its later size. It grew under Roosevelt and "it continued to expand and was further regularized by statute, by appropriation acts, and by more reorganization plans" during the succeeding years.

The Executive Office organized by E.O. 8248 consisted of the White House Office, the Bureau of the Budget, the National Resources Planning Board, the Office of Government Reports, and the Liaison Office for Personnel Management. It also provided that, "in the event of a national emergency," there could be established "such office for emergency management as the President shall determine." The Office for Emergency Management was created by an administrative order on May 25, 1940, and its functions were further specified in an administrative order of January 7, 1941. It subsequently served as a parent unit for a number of subordinate emergency management bodies.

Presidential Adviser Growth

The creation of the Executive Office of the President contributed to an increase in the number of presidential advisers for several reasons. First, it provided an enclave for various agencies that immediately assisted the President. Primary among these was the White House Office, which was no longer merely the President's small office staff, but an agency with hierarchically organized staff positions whose personnel rapidly expanded during the next few decades.

Second, it counted agencies, such as the Liaison Office for Personnel Management and the Office for Emergency Management, that were headed by an administrative assistant—and adviser—to the President on the White House Office payroll. It also included agencies, such as the Bureau of the Budget (and its Office of Management and Budget successor), that were headed by leaders for whom advising the President was a primary responsibility.

Third, senior White House Office staff would come to supervise and direct the staff of other Executive Office entities: the Assistant to the President for National Security Affairs would direct the National Security Council staff and the Assistant to the President for Domestic Policy would direct the Domestic Council staff.

Fourth, in January 1973, President Richard M. Nixon vested his Secretary of the Treasury and his director of the Office of Management and Budget with dual White House Office positions, respectively, of Assistant to the President for Economic Affairs and Assistant to the President for Executive Management. He also vested his Secretary of Agriculture, Secretary of Health, Education, and Welfare, and Secretary of Housing and Urban Development with dual White House Office positions, respectively, of Counselor to the President for Natural Resources, Counselor to the President for Human Resources, and Counselor to the President for Community Development. Having such dual White House Office titles was viewed as giving added emphasis, if not authority, to the role of these officials as presidential advisers.

In the aftermath of World War II, Congress statutorily chartered most of the agencies within the Executive Office of the President. Furthermore, Congress routinely appropriated funds for the operating expenses of these entities. In 1944, Congress had adopted an amendment to an appropriation bill that was designed to restrain the creation of Executive Office agencies by executive order—a frequent occurrence during 1941-1944. The amendment stated:

After January 1, 1945, no part of any appropriation or fund made available by this or any other Act shall be allotted or made available to, or used to pay the expenses of, any agency or instrumentality including those established by Executive order after such agency or instrumentality has been in existence for more than one year, if the Congress has not appropriated any money specifically for such agency or instrumentality or specifically authorized the expenditure of funds by it.

In 1982, when Title 31 of the United States Code was recodified, the amendment was repealed and replaced with new language at Section 1347. The opening sentence of the new section, which remains as operative law, states: "An agency in existence for more than one year may not use amounts otherwise available for obligation to pay its expenses without a specific appropriation or specific authorization by law."

With their growing number and influence, senior staff members of the White House Office and certain other Executive Office agencies began to become of interest to congressional committees when accountability for policymaking and administrative or managerial actions prompted requests for their testimony. Some, like War Production Board chairman Donald M. Nelson, who was popularly known as the "arms czar," appeared before and cooperated with the Senate Special Committee to Investigate the National Defense Program ("Truman Committee") during World War II to report on and discuss war material production and related coordination matters. Others, like Office of War Mobilization director James F. Byrnes, who was sometimes referred to as the "assistant president," apparently avoided appearing before congressional committees during the World War II era, but were in communication with various individual Members of Congress in leadership positions and served as liaisons between the President and Congress on a number of war matters.

Presidential Adviser Testimony

Beginning with the closing years of World War II, examples are provided below of instances when a presidential adviser—a civilian executive branch official, other than a member of the traditional Cabinet, who, as part of that official's responsibilities and activities, consulted with the President—testified before a congressional committee or subcommittee. Because these consultations with the President by such an official may be considered by the President to be privileged and constitutionally protectable, examples are also provided of instances when invited congressional committee or subcommittee testimony by a presidential adviser was refused. None of the examples involves testimony or refusal to testify by a former presidential adviser. All examples are based upon the public record.

Jonathan Daniels, Administrative Assistant to the President, White House Office, appeared before the Senate Committee on Agriculture and Forestry on February 28 and March 7 and 8, 1944, to discuss his involvement in the personnel policy of the Rural Electrification Administration. Wallace H. Graham, Physician to the President, White House Office, appeared before the Senate Committee on Appropriations on January 13, 1948, to discuss information to which he might have been privy with regard to the commodity market. Harry H. Vaughn, Military Aide to the President, White House Office, appeared before the Senate Committee on Expenditures in Executive Departments (now Governmental Affairs) on August 30 and 31, 1949, to discuss his personal involvement in certain government procurement contracts. Donald S. Dawson, Administrative Assistant to the President, White House Office, appeared before the Senate Committee on Banking and Currency on May 10 and 11, 1951, to discuss allegations he had attempted to "dominate" the Reconstruction Finance Corporation and influence appointments to that body. Sherman Adams, Assistant to the President, White House Office, appeared before the House Committee on Interstate and Foreign Commerce Committee on June 17, 1958, to discuss his involvement with certain lobbyists. Edward E. David, Jr., Science Adviser to the President, White House Office, and director, Office of Science and Technology, appeared before the Senate Committee on Interior and Insular Affairs on June 15, 1971, to discuss the Nixon Administration's position on energy policy matters; he appeared again before the House Committee on Science and Astronautics on June 14, 1972, to discuss science policy matters relating to Soviet-American cooperation agreements. Virginia H. Knauer, Special Assistant to the President for Consumer Affairs, White House Office, and director, Office of Consumer Affairs, appeared before the House Select Committee on Small Business on June 25, 1971, to discuss consumer protection and advertising standards. Jerome H. Jaffe, Special Consultant to the President, White House Office, and director, Special Action Office for Drug Abuse Prevention, appeared before the House Committee on Interstate and Foreign Commerce on June 28, August 2, October 27, and November 8, 1971, to discuss various aspects of the operations of the Special Action Office. Peter Flanigan, Assistant to the President, White House Office, appeared before the Senate Committee on the Judiciary on April 20, 1972, during the course of hearings on the confirmation of Richard Kleindienst as Attorney General to discuss his involvement in apparent lobbying activities by the International Telephone and Telegraph Company. Bruce A. Kehrli, Special Assistant to the President, White House Office, appeared before the Senate Select Committee on Presidential Campaign Activities on May 17, 1973, to discuss matters related to the Watergate incident. Patrick J. Buchanan, Special Consultant to the President, White House Office, appeared before the Senate Select Committee on Presidential Campaign Activities on September 26, 1973, to discuss matters related to the Watergate incident. Richard M. Harden, Special Assistant to the President, White House Office, appeared before the Senate Appropriations Subcommittee on Treasury, Postal Service, and General Government on March 9, 1977, to discuss funds for the White House Office; he appeared again before the House Appropriations Subcommittee on Treasury, Postal Service, and General Government on March 15, 1977, to discuss these same matters. Rose Mary Woods, Personal Secretary to the President, White House Office, appeared before the Senate Select Committee on Presidential Campaign Activities on March 22, 1974, to discuss matters related to the Watergate incident. J. Frederick Buzhardt, Special Counsel to the President, White House Office, appeared before the Senate Select Committee on Presidential Campaign Activities on April 10 and May 7, 1974, to discuss matters related to the Watergate incident. Alexander M. Haig, Jr., Staff Coordinator to the President, White House Office, appeared before the Senate Select Committee on Presidential Campaign Activities on May 2, and 15, 1974, to discuss matters related to the Watergate incident. Leonard Garment, Assistant to the President, White House Office, appeared before the Senate Select Committee on Presidential Campaign Activities on May 17, 1974, to discuss matters related to the Watergate incident. Lloyd Cutler, Counsel to the President, White House Office, appeared before the Senate Judiciary Subcommittee to Investigate the Activities of Individuals Representing the Interests of Foreign Governments on September 10, 1980, to discuss efforts by the President's brother, Billy Carter, to influence the federal government on behalf of the government of Libya. Zbigniew Brzezinski, Assistant to the President for National Security Affairs, White House Office, appeared before the Senate Judiciary Subcommittee to Investigate the Activities of Individuals Representing the Interests of Foreign Governments on September 17, 1980, to discuss efforts by the President's brother, Billy Carter, to influence the federal government on behalf of the government of Libya. Samuel Berger, Deputy Assistant to the President for National Security Affairs, White House Office, appeared before the Senate Committee on Foreign Relations on May 3, 1994, to provide a briefing on United States policy toward Haiti. Samuel Berger, Assistant to the President for National Security Affairs, White House Office, appeared before the Senate Committee on Governmental Affairs on September 11, 1997, concerning campaign fund-raising practices in connection with the 1996 federal election campaign. Lloyd N. Cutler, Special Counsel to the President, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 26, 1994, concerning whether White House aides had inappropriately learned details of a Resolution Trust Corporation (RTC) investigation of the failed Madison Guaranty Savings and Loan. Lisa M. Caputo, Press Secretary to the First Lady, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. W. Neil Eggleston, Associate Counsel to the President, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Mark D. Gearan, Assistant to the President for Communications, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Harold Ickes, Assistant to the President and Deputy Chief of Staff, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Bruce Lindsey, Assistant to the President and Senior Adviser, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. John D. Podesta, Assistant to the President and Staff Secretary, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Clifford Sloan, Associate Counsel to the President, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. George R. Stephanopoulos, Senior Policy adviser to the President, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Margaret A. Williams, Chief of Staff to the First Lady, White House Office, appeared before the House Committee on Banking, Finance, and Urban Affairs on July 28, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Lloyd N. Cutler, Special Counsel to the President, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 5, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. W. Neil Eggleston, Deputy Counsel to the President, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 3, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Harold Ickes, Assistant to the President and Deputy Chief of Staff, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Joel I. Klein, Deputy Counsel to the President, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 3, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Bruce R. Lindsey, Assistant to the President and Senior Adviser, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Thomas F. McLarty III, Counselor to the President, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Beth Nolan, Associate Counsel to the President, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 3, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. John D. Podesta, Assistant to the President and Staff Secretary, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Clifford M. Sloan, Associate Counsel to the President, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 3, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. George R. Stephanopoulos, Senior Adviser to the President for Policy and Strategy, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Margaret A. Williams, Assistant to the President and Chief of Staff to the First Lady, White House Office, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on August 4, 1994, concerning whether White House aides had inappropriately learned details of an RTC investigation of the failed Madison Guaranty Savings and Loan. Mark D. Gearan, Assistant to the President and Director of Communications and Strategic Planning, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on July 25, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Deborah Gorham, Assistant to the Associate Counsel to the President, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on August 1, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Carolyn C. Huber, Special Assistant to the President and Director of Personal Correspondence, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on August 3, 1995, and January 18, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Harold Ickes, Deputy Chief of Staff, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on February 23, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Evelyn Lieberman, Deputy Press Secretary for Operations, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on July 26, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Bruce R. Lindsey, Assistant to the President and Deputy Counsel to the President, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on August 8 and November 28, 1995, and January 16, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Capricia P. Marshall, Special Assistant to the First Lady, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on February 9, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Thomas F. McLarty III, Counsel to the President, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on August 7, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Bobby J. Nash, Assistant to the President and Director of Presidential Personnel, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on January 31 and April 30, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Stephen R. Neuwirth, Associate Counsel to the President, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on August 3, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. John M. Quinn, Assistant to the President and Chief of Staff to the Vice President, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on August 7, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Jane C. Sherburne, Special Counsel to the President, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on November 9, 1995, and February 9, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Patti Solis, Special Assistant to the President and Director of Scheduling for the First Lady, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on May 14, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Patsy L. Thomasson, Deputy Assistant to the President and Assistant Director for Presidential Personnel, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on July 25, 1995, and May 9, 1996, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Margaret A. Williams, Assistant to the President and Chief of Staff to the First Lady, White House Office, appeared before the Senate Special Committee to Investigate the Whitewater Development Corporation and Related Matters on July 26, November 2, and December 11, 1995, concerning whether White House staff had engaged in improper contacts regarding the Madison Guaranty Saving and Loan Association, the White Water Development Corporation, and other matters. Charles Easley, Director of the Office of White House Security, White House Office, appeared before the Senate Committee on the Judiciary on June 28, 1996, concerning the dissemination of Federal Bureau of Investigation background investigation reports and other information to the White House. Lanny Breuer, Special Counsel to the President, White House Office, appeared before the House Committee on Government Reform and Oversight on November 7, 1997, concerning White House compliance with committee subpoenas issued in the course of an investigation into alleged fund-raising abuses and the funneling of foreign money into political campaigns. Cheryl Mills, Deputy Assistant to the President and Deputy Counsel to the President, White House Office, appeared before the House Committee on Government Reform and Oversight on November 6 and 7, 1997, concerning White House compliance with committee subpoenas issued in the course of an investigation into alleged fund-raising abuses and the funneling of foreign money into political campaigns. Dimitri Nionakis, Associate Counsel to the President, White House Office, appeared before the House Committee on Government Reform and Oversight on November 7, 1997, concerning White House compliance with committee subpoenas issued in the course of an investigation into alleged fund-raising abuses and the funneling of foreign money into political campaigns. Charles F. C. Ruff, Counsel to the President, White House Office, appeared before the House Committee on Government Reform and Oversight on November 6 and 7, 1997, concerning White House compliance with committee subpoenas issued in the course of an investigation into alleged fund-raising abuses and the funneling of foreign money into political campaigns. Nancy Heinreich, Deputy Assistant to the President for Appointments and Scheduling, White House Office, appeared before the House Committee on Government Reform and Oversight on November 13, 1997, concerning the White House access and political campaign donations of Johnny Chung. Mark Lindsay, Assistant to the President and Director of White House Management and Administration, White House Office, appeared before the House Committee on Government Reform on March 23, 2000, concerning White House mismanagement of its e-mail system and e-mails subpoenaed by the committee. Dimitri Nionakis, Associate Counsel to the President, appeared before the House Committee on Government Reform on May 24, 2000, concerning White House mismanagement of its e-mail system and e-mails subpoenaed by the committee. Beth Nolan, Counsel to the President, White House Office, appeared before the House Committee on Government Reform on March 30 and May 4, 2000, concerning White House mismanagement of its e-mail system and e-mails subpoenaed by the committee. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the Senate Committee on Governmental Affairs on June 20, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the House Committee on Government Reform on June 20, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the House Committee on Energy and Commerce on June 26, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the Senate Committee on the Judiciary on June 26, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the House Committee on the Judiciary on June 26, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the Senate Committee on Environment and Public Works on July 10, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the House Select Committee on Homeland Security on July 15, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the Senate Committee on Health, Education, Labor, and Pensions on July 16, 2002, concerning the proposed Department of Homeland Security. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, appeared before the Senate Committee on Agriculture, Nutrition, and Forestry on July 17, 2002, concerning the proposed Department of Homeland Security. J. Scott Jennings, Special Assistant to the President and Deputy White House Political Director, appeared before the Senate Committee on the Judiciary on August 2, 2007, concerning the dismissal of United States Attorneys following issuance by the committee of a subpoena compelling such testimony. Alan R. Swendiman, Special Assistant to the President and Director, Office of Administration, Executive Office of the President, and Theresa Payton, Chief Information Officer, Office of Administration, Executive Office of the President, appeared before the House Committee on Oversight and Government Reform on February 26, 2008, concerning views on issues regarding missing White House electronic records and related matters. Paul A. Volcker, Chairman of the President's Economic Advisory Board, appeared before the Joint Economic Committee on February 26, 2009, concerning recommendations for financial regulatory system reform. Paul A. Volcker, Chairman of the President's Economic Recovery Advisory Board, appeared before the Senate Committee on Banking, Housing, and Urban Affairs on February 2, 2010, concerning Administration financial regulatory system reform proposals including the "Volcker Rule." Brook M. Colangelo, Chief Information Officer, Office of Administration, Executive Office of the President, appeared before the House Committee on Oversight and Government Reform on May 3, 2011, regarding the technical systems in place to maintain electronic records at the Executive Office of the President. Paul A. Volcker, Chairman of the President's Economic Recovery Advisory Board, appeared before the Senate Committee on Banking, Housing, and Urban Affairs Subcommittee on Financial Institutions and Consumer Protection on May 9, 2012, concerning perspectives on concerns about large financial institutions which failures pose systemic threats to the financial system. Todd Park, U.S. Chief Technology Officer, Office of Science and Technology, Executive Office of the President, and Steven VanRoekel, Federal Chief Information Officer and Administrator, E-Government and Information Technology, Office of Management and Budget appeared before the House Committee on Oversight and Government Reform on November 13, 2013, regarding the implementation of federal health care marketplace websites. Jennifer O'Connor, Attorney, Office of the White House Counsel, appeared before the House Committee on Oversight and Government Reform on June 24, 2014, concerning efforts to provide emails and other documents requested by Congress related to process and review of applications of organizations applying for tax-exempt status, including the emails of Lois Lerner, and related matters.

In a somewhat different case, Condoleezza Rice, Assistant to the President for National Security Affairs, after initially declining to testify, appeared before the National Commission on Terrorist Attacks Upon the United States on April 8, 2004, concerning the anti-terrorism efforts of the Bush Administration prior to the September 11, 2001, attacks upon the World Trade Center and the Pentagon. Some viewed the commission as an independent entity because its membership was appointed by the President and the party leaders of Congress, while others noted that the panel's authorizing statute established it in the legislative branch. On June 26, 2008, David S. Addington, Chief of Staff for Vice President Richard Cheney, testified before a subcommittee of the House Committee on the Judiciary concerning legal justification for harsh interrogation methods.

Presidential Adviser Testimony Refused

Beginning with the years immediately after the conclusion of World War II, examples are provided below of instances when invited congressional committee or subcommittee testimony by a presidential adviser was refused. All examples are based upon the public record.

John R. Steelman, Assistant to the President, White House Office, declined in March 1948 to appear before a special subcommittee of the House Committee on Education and Labor. Herbert G. Klein, Director of White House Communications, White House Office, declined on September 21, 1971, to appear before the Senate Judiciary Subcommittee on Constitutional Rights. Frederick V. Malek, Special Assistant to the President, White House Office, and Charles W. Colson, Special Counsel to the President, White House Office, declined in December 1971 to appear before the Senate Judiciary Subcommittee on Constitutional Rights. Henry A. Kissinger, Assistant to the President for National Security Affairs, White House Office, declined on February 28, 1972, to appear before the Senate Committee on Foreign Relations. David Young, Special Assistant to the National Security Council, declined on April 29, 1972, to appear before the House Government Operations Subcommittee on Foreign Operations and Government Information. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, declined March 15 and April 4, 2002, requests to appear before the Senate Committee on Appropriations. Thomas J. Ridge, Assistant to the President for Homeland Security, White House Office, after declining to appear before the House Appropriations Subcommittee on Treasury, Postal Service, and General Government in late March, agreed to an informal, closed, April 10, 2002, meeting of subcommittee members. Douglas Badger, Special Assistant to the President for Economic Policy, Office of Policy Development, declined on March 31, 2004, to appear before the House Committee on Ways and Means. Karl C. Rove, Assistant to the President and Deputy Chief of Staff, did not appear before the Senate Committee on the Judiciary on August 2, 2007, concerning the dismissal of United States Attorneys, following the issuance by the committee of a subpoena compelling his testimony on that date. David Simas, Assistant to the President and Director of Political Strategy and Outreach, Office of Political Strategy and Outreach, declined to appear before the House Committee on Oversight and Government Reform on July 1, 2014, concerning the operation of the White House Office of Political Strategy, following the issuance of a subpoena by that committee.

Weighing Congress's Right to Executive Branch Information with Executive Claims of Absolute Immunity

Congress has a constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

Given the tradition of comity between the executive and legislative branches, Congress often elects not to request the appearance of presidential aides. When Congress has requested the appearance of such aides, Presidents and their aides have at times resisted, asserting the separation of powers doctrine and/or executive privilege. These two grounds for declining to comply with congressional requests for the appearance of presidential aides overlap, and it is sometimes difficult to determine which argument is being raised.

The executive branch has articulated a long-standing position that "the President's immediate advisers are absolutely immune from congressional testimonial process." This principle of absolute immunity would prevent Congress from compelling a presidential adviser to appear before a committee for purposes of providing testimony.

The executive branch position, as articulated in various opinions of the Department of Justice Office of Legal Counsel, is grounded in the separation of powers and legal principles underlying executive privilege. Specifically, the DOJ argues that because the President must be immune from compelled congressional testimony, his close presidential advisers, who "function as the President's alter ego," must also be immune from compelled testimony. To hold otherwise, the DOJ argues, would interfere with the President's "discharge of his constitutional functions" in two significant ways. First, permitting Congress to compel testimony from close presidential advisers would "threaten the President's independence and autonomy from Congress" in that committees could "harass ... advisers in an effort to influence their conduct" and "promote a perception that the President is subordinate to Congress." Second, compelled testimony by presidential advisers 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." Although conceding that advisers could appear before Congress and invoke executive privilege with respect to specific questions, the DOJ finds that procedure insufficient to protect executive branch autonomy. "In the heat of the moment, without the opportunity for careful reflection," the executive branch argues, "the adviser might have difficulty confining his remarks to those that do not reveal [] sensitive information."

With respect to the many instances in which close presidential advisers have testified before Congress, the DOJ asserts that those officials have done so voluntarily "as an accommodation to a congressional committee's legitimate interest in investigating certain activities of the Executive Branch." The DOJ argues that voluntary testimony, as opposed to compelled testimony, does not trigger the same concerns under the separation of powers, nor do examples of voluntary testimony "undermine the Executive Branch's long-established position on absolute immunity."

No decision of the Supreme Court resolves the question of whether there are any circumstances in which close presidential advisers can refuse a subpoena to appear before a congressional committee for purposes of providing testimony. However, in Committee on the Judiciary v. Miers , the U.S. District Court for the District of Columbia rejected the long-standing executive branch position and held that close presidential advisers are not immune from compulsory congressional testimony.

The Miers case arose out of an investigation by the House Committee on the Judiciary into the termination and replacement of a number of U.S. Attorneys during the George W. Bush Administration. In the course of the investigation, the committee issued a subpoena to former White House Counsel Harriet Miers, seeking her testimony on the matter. Following a legal conclusion from the DOJ that "Ms. Miers is immune from compulsion to testify before the Committee on this matter," Miers informed the Committee that she would not appear. The Committee subsequently filed a civil lawsuit asking a federal court to order Miers to comply with the subpoena.

The Miers opinion represents a clear repudiation of the executive view of absolute immunity for close presidential advisers. The district court strongly disagreed with the executive's arguments, noting that:

The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive's claim of absolute immunity for senior presidential aides.

Instead, the court held that Miers "must appear before the Committee to provide testimony, and invoke executive privilege where appropriate." In reaching its conclusion, the district court also rejected the argument that close advisers should be considered the "alter ego" of the President. The court noted that this line of argument had been foreclosed by the Supreme Court in the case of Harlow v. Fitzgerald —a civil suit for damages in which the Court expressly refused to accord presidential advisers with absolute immunity. Indeed, the district court in Miers went further and, in fact, questioned whether the president himself was absolutely immune from compelled congressional testimony. Miers did, however, leave open the question of whether presidential advisers engaged in "special functions" relating to "national security or foreign policy" may be accorded some form of immunity from compelled testimony.

The district court likewise rejected that argument that the absence of absolute immunity would create a "chilling effect" on the candid and frank advice advisers would provide to the President. The court reasoned that the ability of an adviser to appear, and invoke executive privilege in response to specific questioning, "should serve as an effective check against public disclosure of truly privileged communications, thereby mitigating any adverse impact on the quality of advice that the President receives."

The reasoning adopted by the Miers court may have significant influence in that it so clearly repudiated the executive's claim of absolute immunity for presidential advisers, while reaffirming Congress's essential role in conducting oversight and enforcing its own subpoenas. However, as a district court decision, the Miers opinion has limited precedential value. For its part, the executive branch maintains that Miers was wrongly decided. Consistent with that conclusion, DOJ continues to adhere to its position that close presidential advisers have absolute immunity from compelled testimony by Congress.

Procedure for Obtaining Executive Branch Testimony

A congressional committee may request (informally or by a letter from the committee chair, perhaps cosigned by the ranking Member) or demand (pursuant to subpoena ) the testimony of a presidential adviser. However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser.

Conflicts concerning congressional requests or demands for executive branch testimony or documents often involve extensive negotiations, and may be resolved by some form of compromise as to, inter alia, the scope of the testimony or information to be provided to Congress. If the executive branch fails to comply with a committee subpoena, and if negotiations do not resolve the matter, the committee may employ Congress's inherent contempt authority (involving a trial at the bar of the Senate or House) or statutory criminal contempt authority in an effort to obtain the needed information. Both of these procedures are somewhat cumbersome, and their use may not result in the production of the information that is sought.

When faced with a refusal by the executive branch to comply with a demand for information, Congress has several alternatives to inherent and statutory contempt, although these alternatives are not without their own limitations. One approach is to seek declaratory or other relief in the courts. Previous attempts to seek judicial resolution of interbranch conflicts over information access issues have encountered procedural obstacles and have demonstrated the reluctance of the courts to resolve sensitive separation of powers issues. Other approaches may include, inter alia, appropriations riders, impeachment, and a delay in the confirmation of presidential appointees.

In addition to the options generally available in the event of a refusal by the executive to provide information sought by Congress, when a presidential adviser who is not serving in a department or agency established by law declines to testify before a committee, Congress might wish to enact legislation establishing the entity and making the head of the entity subject to Senate confirmation.

Conclusion

(1) Legal and policy factors may explain why presidential advisers do not regularly testify before committees. (2) Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information. (3) A committee may request or demand the testimony of a presidential adviser, however, legal mechanisms available for enforcing congressional subpoenas to the executive branch may fail to provide the committee with the desired information. (4) Negotiations may result in the production of at least some of the information sought.