b'(Slip Opinion)\n\nCongressional Oversight of the White House\nCongressional oversight of the White House is subject to greater constitutional limitations\nthan oversight of the departments and agencies of the Executive Branch, in light of the\nWhite House staff\xe2\x80\x99s important role in advising and assisting the President in the discharge of his constitutional responsibilities, the need to ensure the independence of the\nPresidency, and the heightened confidentiality interests in White House communications.\nJanuary 8, 2021\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis memorandum opinion summarizes the principles and practices\ngoverning congressional oversight of the White House. The White House,\nas we use the term here, refers to those components within the Executive\nOffice of the President (\xe2\x80\x9cEOP\xe2\x80\x9d), such as the White House Office and the\nNational Security Council, whose principal function is to advise and assist\nthe President in the discharge of the duties of his office. All three branches of government have recognized that the White House has a role and\nstatus distinct from the executive branch departments and agencies, and\nthis Office has long recognized those distinctions to be critical to the\ndevelopment of principles and practices for congressional oversight\naddressed to the White House.\nThe Constitution vests all of \xe2\x80\x9c[t]he executive Power\xe2\x80\x9d in the President\nand charges him alone with the responsibility to \xe2\x80\x9ctake Care that the Laws\nbe faithfully executed.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 1, cl. 1; id. \xc2\xa7 3. In carrying\nout that charge, the President necessarily depends on \xe2\x80\x9cthe assistance of\nsubordinates,\xe2\x80\x9d Myers v. United States, 272 U.S. 52, 117 (1926), most of\nwhom are his appointed officials in the executive departments and agencies. Yet the size and complexity of modern federal administration have\nrequired the establishment of the White House as an organizational apparatus to directly support the President in the discharge of his responsibilities. White House personnel work in close proximity to the President and\nadvise and assist him in the development of presidential policy, in supervising and guiding the affairs of the executive branch departments and\nagencies, and in communicating with Congress, the American public, and\nforeign governments.\n1\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nThe White House\xe2\x80\x99s important role in advising and assisting the President has special significance for congressional oversight. Each House of\nCongress has, as an adjunct to its legislative power, the constitutional\nauthority to obtain information, a power typically carried out through its\ncommittees. But this investigative authority, often referred to as \xe2\x80\x9coversight\xe2\x80\x9d authority, is subject to limitations. A congressional information\nrequest \xe2\x80\x9cis valid only if it is \xe2\x80\x98related to, and in furtherance of, a legitimate\ntask of the Congress.\xe2\x80\x99\xe2\x80\x9d Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031\n(2020) (quoting Watkins v. United States, 354 U.S. 178, 187 (1957)).\nConsequently, the Executive Branch must scrutinize the asserted legislative purpose underlying a congressional request by examining the objective fit between that purpose and the information sought. Because Congress may conduct oversight investigations only with respect to\n\xe2\x80\x9c\xe2\x80\x98subject[s] on which legislation could be had,\xe2\x80\x99\xe2\x80\x9d id. (quoting Eastland v.\nU.S. Servicemen\xe2\x80\x99s Fund, 421 U.S. 491, 506 (1975)), Congress may not\nconduct such investigations for the purpose of reviewing the discharge of\nfunctions exclusively entrusted to the President by the Constitution. See,\ne.g., Assertion of Executive Privilege with Respect to Clemency Decision,\n23 Op. O.L.C. 1, 2 (1999) (Reno, Att\xe2\x80\x99y Gen.) (\xe2\x80\x9cClemency Decision\xe2\x80\x9d). 1 It\nfollows that the activities of White House advisers are less likely than the\nactivities of the departments\xe2\x80\x99 and agencies\xe2\x80\x99 staffs to involve matters\nwithin Congress\xe2\x80\x99s oversight authority.\nEven when Congress operates within the appropriate scope of its oversight authority, the Constitution places additional separation of powers\nconstraints on inquiries directed at the White House. The Supreme Court\nThis memorandum addresses Congress\xe2\x80\x99s authority to investigate in furtherance of its\npower to legislate. See McGrain v. Daugherty, 273 U.S. 135, 175 (1927). We do not\nconsider Congress\xe2\x80\x99s parallel authority to obtain the information necessary to the discharge\nof its other powers, such as the House\xe2\x80\x99s power to impeach, although we have recognized\nthat similar principles apply in those areas. See, e.g., Exclusion of Agency Counsel from\nCongressional Depositions in the Impeachment Context, 43 Op. O.L.C. __, at *3 (Nov. 1,\n2019) (recognizing \xe2\x80\x9cthat a congressional committee must likewise make a showing of\nneed that is sufficient to overcome [executive] privilege in connection with an impeachment inquiry\xe2\x80\x9d); Letter for Pat A. Cipollone, Counsel to the President, from Steven A.\nEngel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3, 2019) (recognizing that the immunity of certain presidential advisers from compelled congressional\ntestimony \xe2\x80\x9capplies in an impeachment inquiry just as it applies in a legislative oversight\ninquiry\xe2\x80\x9d).\n1\n\n2\n\n\x0cCongressional Oversight of the White House\n\nhas recognized the importance of \xe2\x80\x9cthe Executive Branch\xe2\x80\x99s interests in\nmaintaining the autonomy of [the Presidency] and safeguarding the confidentiality of its communications.\xe2\x80\x9d Cheney v. U.S. Dist. Ct., 542 U.S. 367,\n385 (2004). These concerns are particularly acute with respect to White\nHouse advisers. Congressional oversight directed at the White House\nmust be conducted in a way that protects the ability of the White House to\nfunction effectively in advising and assisting the President as he carries\nout his responsibilities under the Constitution.\nCongressional inquiries are also constrained by the heightened confidentiality interests in White House communications. See id. At the core of\nthose interests is the presidential communications component of executive\nprivilege, which covers many White House communications involving\npresidential decision-making. Congressional inquiries directed to the\nWhite House must take account of the presumptive application of executive privilege to White House communications, as well as the President\xe2\x80\x99s\ninterests in autonomy and independence. Even when the White House\nmay have relevant information, these separation of powers and privilege\nconcerns weigh in favor of Congress seeking available information first\nfrom the departments and agencies before proceeding with White House\nrequests. 2\nThis memorandum proceeds in four Parts. Part I describes the development of the White House as an organization and its central role in\nadvising and assisting the President. Part II discusses the scope of congressional oversight authority and the limits on that authority as it applies\nto matters related to the discharge of the President\xe2\x80\x99s constitutional functions. Part III explains that when Congress directs its oversight requests to\nthe White House, the constitutionally mandated \xe2\x80\x9caccommodation process\xe2\x80\x9d\nshould take into account the limitations imposed on those requests by\nseparation of powers principles and the heightened executive privilege\ninterests attending the communications of the White House.\n2 Although this memorandum addresses the EOP components whose principal function\nis to advise and assist the President, many of the principles discussed here would apply as\nwell to so-called \xe2\x80\x9cdual hat\xe2\x80\x9d presidential advisers in other components who \xe2\x80\x9cexercise\nsubstantial independent authority or perform other functions in addition to advising the\nPresident.\xe2\x80\x9d In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). To the extent that\nCongress directs oversight efforts at activities implicating the advising \xe2\x80\x9chat\xe2\x80\x9d of those\nofficials, many of the same principles governing oversight would apply.\n\n3\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nFinally, Part IV assesses the mechanisms for enforcing congressional\nsubpoenas and discusses legal issues commonly raised by congressional\nsubpoenas directed to White House staff. Historically, Congress has had\nno shortage of ways to use its powers to press executive branch officials\nto negotiate and to comply with appropriate informational demands.\nAlthough congressional committees have recently sued to enforce several\nsubpoenas against executive officials, those lawsuits lack a foundation in\nour Nation\xe2\x80\x99s history and fall outside the constitutional and statutory\njurisdiction of the federal courts. Congress and the Executive Branch have\ntraditionally worked out their disputes through negotiation and compromise, and the Department of Justice believes that those time-tested methods are the appropriate means for resolving disputes over congressional\ninformation requests, no matter whether directed at the White House or\nthe departments and agencies within the Executive Branch.\nI. Historical Background\nArticle II of the Constitution establishes a unitary Executive Branch\nheaded by the President, and it assigns to him an array of important functions, including responsibility for the Nation\xe2\x80\x99s foreign relations, military\naffairs, and law enforcement. See Seila Law LLC v. Consumer Fin. Prot.\nBureau, 140 S. Ct. 2183, 2197 (2020) (\xe2\x80\x9cThe entire \xe2\x80\x98executive Power\xe2\x80\x99\nbelongs to the President alone.\xe2\x80\x9d); Nixon v. Adm\xe2\x80\x99r of Gen. Servs., 433 U.S.\n425, 550\xe2\x80\x9351 (1977) (Rehnquist, J., dissenting) (\xe2\x80\x9c[T]he President is made\nthe sole repository of the executive powers of the United States, and the\npowers entrusted to him as well as the duties imposed upon him are awesome indeed.\xe2\x80\x9d). It is no surprise that, in a \xe2\x80\x9cworld of extraordinary administrative complexity and near-incalculable presidential responsibilities,\xe2\x80\x9d\nPresidents have consistently and increasingly turned to the \xe2\x80\x9cassistance of\nclose aides\xe2\x80\x9d in the White House to carry out their duties. Elena Kagan,\nPresidential Administration, 114 Harv. L. Rev. 2245, 2273 (2001).\nThe White House\xe2\x80\x99s modern organizational form traces to the EOP\xe2\x80\x99s\ncreation in 1939 as \xe2\x80\x9can institutional response to needs felt by every occupant of the Oval Office . . . . [T]hese were, and remain, needs for advice\nand assistance.\xe2\x80\x9d Harold C. Relyea, The Executive Office Concept, in The\nExecutive Office of the President: A Historical, Biographical, and Bibliographical Guide 4 (Harold C. Relyea ed., 1997). As one leading scholar\n4\n\n\x0cCongressional Oversight of the White House\n\nput it a decade after its establishment, \xe2\x80\x9c[t]he creation of the Executive\nOffice of the President was a milestone in the history of the Presidency.\xe2\x80\x9d\nGeorge A. Graham, The Presidency and the Executive Office of the President, 12 J. Pol. 599, 603 (1950); see also Wayne Coy, Federal Executive\nReorganization Re-examined: Basic Problems, 40 Am. Pol. Sci. Rev.\n1124, 1131\xe2\x80\x9332 (1946) (\xe2\x80\x9c[T]he largest step toward enabling the President\nto \xe2\x80\x98take care\xe2\x80\x99 of the effective operation of the administrative system\noccurred in 1939, with the establishment of the Executive Office of the\nPresident.\xe2\x80\x9d).\nLong before the EOP\xe2\x80\x99s establishment, Presidents received confidential\nadvice and assistance from individuals other than department and agency\nheads. President Jackson sought help from a group of informal advisers\nknown as the \xe2\x80\x9cKitchen Cabinet,\xe2\x80\x9d which \xe2\x80\x9cperformed most of the functions\nof a modern staff, serving his personal and political needs.\xe2\x80\x9d Richard B.\nLatner, The Kitchen Cabinet and Andrew Jackson\xe2\x80\x99s Advisory System, 65\nJ. Am. Hist. 367, 379 (1978). Historians have characterized this group of\ninformal advisers \xe2\x80\x9cas an early prototype of the President\xe2\x80\x99s White House\nstaff, a group of personal aides providing the President with a variety of\nservices.\xe2\x80\x9d Id. at 378; see also id. (noting that Jackson\xe2\x80\x99s informal advisers\nshared his \xe2\x80\x9cperspective in overseeing the general direction of his administration, instead of the more limited perspective of department heads\xe2\x80\x9d).\nThe tradition of Jackson-style kitchen cabinets continued for nearly a\ncentury: \xe2\x80\x9cJohn Tyler had his \xe2\x80\x98Virginia Schoolmasters\xe2\x80\x99; Grover Cleveland\nmaintained a \xe2\x80\x98Fishing Cabinet\xe2\x80\x99; Teddy Roosevelt sported the \xe2\x80\x98Tennis\nCabinet\xe2\x80\x99; Warren Harding encouraged a \xe2\x80\x98Poker Cabinet\xe2\x80\x99; [and] Herbert\nHoover instituted a \xe2\x80\x98Medicine Ball Cabinet.\xe2\x80\x99\xe2\x80\x9d Relyea, The Executive\nOffice Concept at 43.\nDuring the 1920s, Congress considered several proposals to more formally establish the \xe2\x80\x9cadministrative machinery\xe2\x80\x9d needed \xe2\x80\x9cto enable the\nPresident to discharge his managerial duties.\xe2\x80\x9d Edward H. Hobbs, An\nHistorical Review of Plans for Presidential Staffing, 21 L. & Contemp.\nProbs. 663, 670 (1956). Although these initial proposals were not adopted,\nthe advent of the New Deal spurred lasting action. As the administrative\nstate dramatically expanded, President Franklin D. Roosevelt realized that\nhe needed more staff to enable him to carry out his mounting responsibilities. In early 1936, he established a three-member committee charged with\n\xe2\x80\x9cinvestigat[ing] and report[ing]\xe2\x80\x9d upon \xe2\x80\x9cthe organization for the perfor5\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nmance of the duties imposed upon the President in exercising the executive power vested in him by the Constitution of the United States.\xe2\x80\x9d President\xe2\x80\x99s Committee on Administrative Management, Administrative Management in the Government of the United States 2 (1937) (\xe2\x80\x9cBrownlow\nReport\xe2\x80\x9d). The President\xe2\x80\x99s Committee on Administrative Management,\nmore commonly known as the Brownlow Committee after its chair, \xe2\x80\x9csurveyed the landscape immediately after the spate of New Deal reforms,\n[and] found a President who although \xe2\x80\x98now ha[ving] popular responsibility\xe2\x80\x99 for the \xe2\x80\x98direction and control of all departments and agencies of the\nExecutive Branch . . . [was] not equipped with adequate legal authority or\nadministrative machinery to enable him to exercise it.\xe2\x80\x99\xe2\x80\x9d Kagan, Presidential Administration, 114 Harv. L. Rev. at 2275.\nThe Brownlow Committee \xe2\x80\x9cdrafted a blueprint for an administrative\nstaff agency, which [it] labeled the Executive Office.\xe2\x80\x9d Hobbs, Plans for\nPresidential Staffing, 21 L. & Contemp. Probs. at 674. The Committee\xe2\x80\x99s\nfinal report recommended that Congress \xe2\x80\x9c[e]xpand the White House\nstaff so that the President may have a sufficient group of able assistants\nin his own office to keep him in closer and easier touch with the widespread affairs of administration and to make a speedier clearance of the\nknowledge needed for executive decision.\xe2\x80\x9d Brownlow Report at 46.\nStressing the urgent need for reform, the Committee included in its\nreport a warning: \xe2\x80\x9cThe President needs help. His immediate staff assistance is entirely inadequate.\xe2\x80\x9d Id. at 5. 3\nPresident Roosevelt strongly endorsed the Committee\xe2\x80\x99s recommendations. He stated that \xe2\x80\x9c[t]he plain fact is that the present organization and\nequipment of the Executive Branch of the Government defeat the Constitutional intent that there be a single responsible Chief Executive to coordinate and manage the departments and activities in accordance with the\nlaws enacted by the Congress.\xe2\x80\x9d A Recommendation for Legislation to\nReorganize the Executive Branch of the Government (Jan. 12, 1937),\n5 Pub. Papers of Pres. Franklin D. Roosevelt 668, 670 (1938).\n\nLouis Brownlow later recounted that the EOP\xe2\x80\x99s mission as contemplated by his\nCommittee was to ensure that the President could \xe2\x80\x9ccontrol the policies of his departments,\nwhile leaving to the head of each department the decisions which are peculiar to its\nactivity and the work incidental thereto.\xe2\x80\x9d Louis Brownlow, The Executive Office of the\nPresident: A General View, 1 Pub. Admin. Rev. 101, 104 (1941).\n3\n\n6\n\n\x0cCongressional Oversight of the White House\n\nCongress authorized President Roosevelt to establish the EOP under the\nReorganization Act of 1939, Pub. L. No. 76-19, 53 Stat. 561; soon thereafter, he issued Reorganization Plan No. 1, which became effective in July\n1939, 4 Fed. Reg. 2727, 53 Stat. 1423. President Roosevelt implemented\nthe reorganization plan by executive order, organizing the EOP into five\ndivisions, each charged with a distinct mission. Notably, the White House\nOffice would \xe2\x80\x9cserve the President in an intimate capacity in the performance of the many detailed activities incident to his immediate office.\xe2\x80\x9d\nExec. Order No. 8248, 4 Fed. Reg. 3864, 3864 (Sept. 8, 1939). The Order\nprovided that presidential assistants would hold \xe2\x80\x9cno authority over anyone\nin any department or agency\xe2\x80\x9d and should \xe2\x80\x9c[i]n no event . . . be interposed\nbetween the President and the head of any department or agency.\xe2\x80\x9d Id.\nEOP officials soon came to take a leading role in developing and coordinating policy recommendations for the President. Within its first decade, the EOP expanded to include entities specifically created for those\npurposes. The Council of Economic Advisers, for example, was established in the EOP in 1946 to \xe2\x80\x9canalyze and interpret economic developments\xe2\x80\x9d and \xe2\x80\x9cformulate and recommend national economic policy to\npromote full employment, production, and purchasing power under free\ncompetitive enterprise.\xe2\x80\x9d Employment Act of 1946, Pub. L. No. 79-304,\n\xc2\xa7 4(a), 60 Stat. 23, 24. A year later, the National Security Council was\ncreated to \xe2\x80\x9cadvise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to\nenable the military services and the other departments and agencies of the\nGovernment to cooperate more effectively in matters involving the national security.\xe2\x80\x9d National Security Act of 1947, Pub. L. No. 80-253,\n\xc2\xa7 101(a), 61 Stat. 495, 496. 4 By the end of the Truman Administration,\nthe EOP had grown to eleven principal units. Harold C. Relyea, Cong.\nResearch Serv., 98-606 GOV, The Executive Office of the President: An\nHistorical Overview 9 (updated Nov. 26, 2008).\nAs the White House developed as an organization, all three branches of\ngovernment recognized that it should be viewed differently from the\ndepartments and agencies of the Executive Branch. With respect to congressional oversight specifically, in the 1970s Assistant Attorneys General\n4 The National Security Council formally became an EOP component upon the adoption of Reorganization Plan No. 4 of 1949, 63 Stat. 1067.\n\n7\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nWilliam Rehnquist and Antonin Scalia, among others, recognized that the\nPresident\xe2\x80\x99s immediate White House advisers must be treated differently\nfrom officials of the departments and agencies when Congress seeks their\ntestimony. See Memorandum for John D. Ehrlichman, Assistant to the\nPresident for Domestic Affairs, from William H. Rehnquist, Assistant\nAttorney General, Office of Legal Counsel, Re: Power of Congressional\nCommittee to Compel Appearance or Testimony of \xe2\x80\x9cWhite House Staff \xe2\x80\x9d\n(Feb. 5, 1971); Letter for Phillip E. Areeda, Counsel to the President,\nfrom Antonin Scalia, Assistant Attorney General, Office of Legal Counsel\n(Sept. 25, 1974); see also infra Part IV.B.\nCongress and the federal courts similarly recognized the need to treat\nthe President\xe2\x80\x99s inner circle of advisers differently under other federal\nlaws. \xe2\x80\x9cArticle II not only gives the President the ability to consult with his\nadvisers confidentially, but also, as a corollary, it gives him the flexibility\nto organize his advisers and seek advice from them as he wishes.\xe2\x80\x9d Ass\xe2\x80\x99n\nof Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909 (D.C.\nCir. 1993). Thus, although the Freedom of Information Act (\xe2\x80\x9cFOIA\xe2\x80\x9d) by\nits terms applies to the EOP, 5 U.S.C. \xc2\xa7 552(f )(1), the Supreme Court\nheld that Congress did not include \xe2\x80\x9c\xe2\x80\x98the President\xe2\x80\x99s immediate personal\nstaff or units in the Executive Office whose sole function is to advise and\nassist the President.\xe2\x80\x99\xe2\x80\x9d Kissinger v. Reporters Comm. for Freedom of the\nPress, 445 U.S. 136, 156 (1980) (quoting H.R. Rep. 93-1380, at 15 (1974)\n(Conf. Rep.)). Federal courts have accordingly limited FOIA to exclude\nvarious EOP components, making this determination by considering \xe2\x80\x9chow\nclose operationally the [component] is to the President, what the nature of\nits delegation from the President is, and whether it has a self-contained\nstructure.\xe2\x80\x9d Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993); see also,\ne.g., Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir.\n2013) (holding that Secret Service logs of visitors to such advise-andassist EOP offices are not \xe2\x80\x9cagency records\xe2\x80\x9d for purposes of FOIA).\nCongress similarly recognized that the President should have plenary\ndiscretion when it comes to hiring, paying, and organizing certain White\nHouse staff. In 1978, Congress authorized the President \xe2\x80\x9cto appoint and\nfix the pay of employees in the White House Office without regard to any\nother provision of law.\xe2\x80\x9d Pub. L. No. 95-570, 92 Stat. 2445, 2445 (codified\nat 3 U.S.C. \xc2\xa7 105(a)). As this Office later observed, that statute \xe2\x80\x9creflect[s]\nCongress\xe2\x80\x99s judgment that the President should have complete discretion\n8\n\n\x0cCongressional Oversight of the White House\n\nin hiring staff with whom he interacts on a continuing basis.\xe2\x80\x9d Applicability of the Presidential Records Act to the White House Usher\xe2\x80\x99s Office, 31\nOp. O.L.C. 194, 197 (2007). As in the FOIA context, Congress thus\nviewed the advise-and-assist components of the White House as not only\ndifferent from the departments and agencies, but also different from the\nother components of the EOP. See Citizens for Responsibility & Ethics in\nWash. v. Office of Admin., 566 F.3d 219, 223 (D.C. Cir. 2009). Congress\nhas continued to recognize that distinction up to the present day. See, e.g.,\nPresidential and Federal Records Act Amendments of 2014, Pub. L. No.\n113-187, \xc2\xa7 2(e), 128 Stat. 2003, 2006\xe2\x80\x9307 (codified at 44 U.S.C. \xc2\xa7 2209)\n(prohibiting \xe2\x80\x9cthe immediate staff of the President\xe2\x80\x9d and any \xe2\x80\x9cunit or individual of the Executive Office of the President whose function is to advise\nand assist the President\xe2\x80\x9d from sending presidential records using nonofficial electronic message accounts).\nThe White House continues to play a unique role in the Executive\nBranch, providing the President with close and confidential advice and\nassistance on a daily basis. The White House acts as the President\xe2\x80\x99s\nprimary information-gathering and policy-development arm, and serves as\n\xe2\x80\x9csomething of a central nervous system of the executive branch. . . . [It] is\na \xe2\x80\x98force multiplier.\xe2\x80\x99 Without it, the President would be greatly weakened\nin his struggle to instantiate his preferences within the executive branch.\xe2\x80\x9d\nSaikrishna B. Prakash, Fragmented Features of the Constitution\xe2\x80\x99s Unitary\nExecutive, 45 Willamette L. Rev. 701, 714, 716 (2009). This memorandum opinion\xe2\x80\x99s remaining Parts explain how the White House\xe2\x80\x99s special\nstatus affects congressional oversight.\nII. Scope of Congressional Oversight Authority\nAlthough \xe2\x80\x9cCongress has no enumerated constitutional power to conduct\ninvestigations or issue subpoenas,\xe2\x80\x9d each House has implied authority to\nsecure the information \xe2\x80\x9cneeded\xe2\x80\x9d to legislate. Mazars, 140 S. Ct. at 2031\n(internal quotation marks omitted); McGrain v. Daugherty, 273 U.S. 135,\n160\xe2\x80\x9361 (1927). Each House may \xe2\x80\x9cmake investigations and exact testimony, to the end that it may exercise its legislative function advisedly and\neffectively.\xe2\x80\x9d McGrain, 273 U.S. at 161; see also Scope of Congressional\nOversight and Investigative Power with Respect to the Executive Branch,\n9 Op. O.L.C. 60, 60 (1985) (\xe2\x80\x9cScope of Congressional Oversight \xe2\x80\x9d) (\xe2\x80\x9cIt is\n9\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nbeyond dispute that Congress may conduct investigations in order to\nobtain facts pertinent to possible legislation and in order to evaluate the\neffectiveness of current laws.\xe2\x80\x9d). The House and Senate typically exercise\ntheir investigative functions through delegations to committees, each of\nwhich has jurisdiction over identified legislative subjects and agencies.\nThe investigative authority of each committee is bounded by its subject\nmatter jurisdiction, as identified by the rules and resolutions of the relevant congressional chamber.\nCongress\xe2\x80\x99s authority to investigate in furtherance of its power to legislate has come to be known as its \xe2\x80\x9coversight\xe2\x80\x9d authority, but that shorthand\nterm does not imply a general authority to review the actions of the Executive Branch. Congress may direct the departments and agencies through\nthe enactment of appropriate legislation, but the Constitution does not\notherwise confer on Congress or its committees an authority to \xe2\x80\x9coversee\xe2\x80\x9d\nor direct the Executive Branch in the conduct of its assigned duties and\nresponsibilities under Article II. Rather, because Congress enjoys an\nimplied power of investigation that \xe2\x80\x9cis \xe2\x80\x98justified solely as an adjunct to\nthe legislative process,\xe2\x80\x99 it is subject to several limitations.\xe2\x80\x9d Mazars, 140\nS. Ct. at 2031 (quoting Watkins, 354 U.S. at 197). Two of these limitations have particular significance for congressional oversight of the White\nHouse. First, because a congressional oversight request \xe2\x80\x9cis valid only if it\nis \xe2\x80\x98related to, and in furtherance of, a legitimate task of the Congress,\xe2\x80\x99\xe2\x80\x9d it\n\xe2\x80\x9cmust serve a \xe2\x80\x98valid legislative purpose.\xe2\x80\x99\xe2\x80\x9d Id. (quoting Watkins, 354 U.S.\nat 187; Quinn v. United States, 349 U.S. 155, 161 (1955)). Second, and\nrelatedly, the scope of oversight authority is limited to subjects \xe2\x80\x9con which\nlegislation could be had,\xe2\x80\x9d McGrain, 273 U.S. at 177, and therefore Congress \xe2\x80\x9ccannot inquire into matters which are within the exclusive province\nof one of the other branches of the Government,\xe2\x80\x9d Barenblatt v. United\nStates, 360 U.S. 109, 112 (1959), including any function committed\nexclusively to the President by the Constitution. 5\n5 Congressional oversight authority may encompass inquiries into the Executive\nBranch\xe2\x80\x99s use of appropriated funds with respect to statutory programs as well as inquiries\nrelevant to future appropriations. However, as Barenblatt makes clear, the fact that the\nPresident or the federal courts may rely upon appropriated funds to carry out their activities does not mean that everything they do falls within the scope of the oversight authority. Otherwise, no matter would fall within the \xe2\x80\x9cexclusive province of one of the other\nbranches of the Government.\xe2\x80\x9d Barenblatt, 360 U.S. at 112. Rather, \xe2\x80\x9c[s]ince Congress may\n\n10\n\n\x0cCongressional Oversight of the White House\n\nA. Legitimate Legislative Purpose\nCongress may conduct investigations only for legitimate legislative\npurposes. This Office has long counseled that \xe2\x80\x9ca threshold inquiry that\nshould be made [by the Executive] upon receipt of any congressional\nrequest for information is whether the request is supported by any legitimate legislative purpose.\xe2\x80\x9d Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act,\n10 Op. O.L.C. 68, 74 (1986) (\xe2\x80\x9cIndependent Counsel Act Requests\xe2\x80\x9d). As\nAssistant Attorney General William Barr explained, the Executive Branch\nneed only assess its \xe2\x80\x9cinterest in keeping [requested] information confidential\xe2\x80\x9d after \xe2\x80\x9cit is established that Congress has a legitimate legislative purpose for its oversight inquiry\xe2\x80\x9d in the first place. Congressional Requests\nfor Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154\n(1989) (\xe2\x80\x9cCongressional Requests\xe2\x80\x9d); see also Congressional Committee\xe2\x80\x99s\nRequest for the President\xe2\x80\x99s Tax Returns Under 26 U.S.C. \xc2\xa7 6103(f ), 43\nOp. O.L.C. __, at *21 (June 13, 2019) (\xe2\x80\x9cPresident\xe2\x80\x99s Tax Returns\xe2\x80\x9d) (reiterating this position).\nBecause Congress may obtain information only where it will advance a\nlegitimate legislative purpose, the other branches of government must\nreview congressional information requests to ensure that they are not\nmotivated by an illegitimate purpose. As the Supreme Court recently\nexplained in Trump v. Mazars:\nCongress has no \xe2\x80\x9c\xe2\x80\x98general\xe2\x80\x99 power to inquire into private affairs and\ncompel disclosures,\xe2\x80\x9d [McGrain, 273 U.S.] at 173\xe2\x80\x93174, and \xe2\x80\x9cthere is\nno congressional power to expose for the sake of exposure,\xe2\x80\x9d Watkins, 354 U.S. at 200. \xe2\x80\x9cInvestigations conducted solely for the per-\n\nonly investigate into those areas in which it may potentially legislate or appropriate, it\ncannot inquire into matters which are within the [Executive\xe2\x80\x99s] exclusive province[.]\xe2\x80\x9d Id.\nat 111\xe2\x80\x9312 (emphasis added). Therefore, the limits placed on Congress when conducting\noversight pursuant to its general legislative power also apply to oversight conducted\npursuant to its appropriations authority. While Congress may, pursuant to its appropriations authority, review manpower statistics and other non-substantive data regarding the\nresources that Presidents historically invest in areas of exclusive executive authority,\nCongress lacks the authority to inquire into the Executive\xe2\x80\x99s substantive decision-making\nin these areas.\n\n11\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nsonal aggrandizement of the investigators or to \xe2\x80\x98punish\xe2\x80\x99 those investigated are indefensible.\xe2\x80\x9d Id. at 187.\n140 S. Ct. at 2032; see also Branzburg v. Hayes, 408 U.S. 665, 699 \xe2\x80\x93700\n(1972) (a legislative committee \xe2\x80\x9cabuse[s] its proper function\xe2\x80\x9d when it\nexposes for the sake of exposure). Without these limits, the Court cautioned, \xe2\x80\x9cCongress could \xe2\x80\x98exert an imperious controul\xe2\x80\x99 over the Executive\nBranch and aggrandize itself at the President\xe2\x80\x99s expense[.]\xe2\x80\x9d Mazars, 140\nS. Ct. at 2034 (quoting The Federalist No. 71, at 484 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)). 6\nAlthough courts, in reviewing subpoenas directed at private parties,\nhave traditionally deferred to Congress\xe2\x80\x99s perceptions of its need for the\ninformation being sought, see, e.g., Barenblatt, 360 U.S. at 132, the\nSupreme Court in Mazars suggested that such a deferential approach does\nnot extend to congressional subpoenas directed at the President\xe2\x80\x99s personal\ninformation because of the separation of powers principles at stake in any\nsuch request, see 140 S. Ct. at 2031; see also id. at 2034\xe2\x80\x9336. In such\ncases, a court must \xe2\x80\x9cbe attentive to the nature of the evidence offered by\nCongress to establish that a subpoena advances a valid legislative purpose\xe2\x80\x9d; \xe2\x80\x9c[t]he more detailed and substantial the evidence of Congress\xe2\x80\x99s\nlegislative purpose, the better.\xe2\x80\x9d Id. at 2036. Moreover, \xe2\x80\x9cunless Congress\nadequately identifies its aims and explains why the President\xe2\x80\x99s information will advance its consideration of the possible legislation,\xe2\x80\x9d it will\nbe \xe2\x80\x9cimpossible to conclude that a subpoena is designed to advance a valid\nlegislative purpose.\xe2\x80\x9d Id. (internal quotation marks omitted); see also\nWatkins, 354 U.S. at 201, 205\xe2\x80\x9306 (reversing a contempt charge due to,\namong other things, a \xe2\x80\x9cvague\xe2\x80\x9d and \xe2\x80\x9cbroad\xe2\x80\x9d committee charter that rendered it \xe2\x80\x9cimpossible . . . to ascertain whether any legislative purpose\njustifie[d] the disclosures sought and, if so, the importance of that information to the Congress in furtherance of its legislative function\xe2\x80\x9d).\n\n6 In the course of its oversight activities, Congress may \xe2\x80\x9cinquire into and publicize\ncorruption, maladministration or inefficiency in agencies of the Government.\xe2\x80\x9d Watkins,\n354 U.S. at 200 n.33. It may not, however, conduct oversight solely for the purpose of\nmaking information public. The Supreme Court has made clear that Congress \xe2\x80\x9cmay only\ninvestigate into those areas in which it may potentially legislate or appropriate,\xe2\x80\x9d Barenblatt, 360 U.S. at 111, and transmitting information \xe2\x80\x9cto inform the public . . . is not a part\nof the legislative function,\xe2\x80\x9d Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979).\n\n12\n\n\x0cCongressional Oversight of the White House\n\nThe Supreme Court\xe2\x80\x99s review in Mazars of a House committee\xe2\x80\x99s pursuit\nof the President\xe2\x80\x99s financial information was consistent with how the\nExecutive Branch has reviewed similar requests from Congress directed at\nthe Executive Branch. Although the Executive Branch should seek to\naccommodate legitimate requests for information concerning the departments and agencies, this Office has advised that such accommodation may\nnot be required where congressional committees\xe2\x80\x99 requests appear to fall\noutside their delegated legislative jurisdiction or lack a legitimate legislative purpose.\nFor instance, shortly before the Mazars decision, we concluded, based\non reasoning similar to Mazars, that a request from the House Ways and\nMeans Committee to the Department of the Treasury for the President\xe2\x80\x99s\ntax returns was not supported by a legitimate legislative purpose. President\xe2\x80\x99s Tax Returns, 43 Op. O.L.C. __, at *3. Although the committee\nsought records similar to those at issue in Mazars, the Chairman proffered\na different reason for the request, claiming that the committee sought to\nevaluate the Internal Revenue Service\xe2\x80\x99s practice of auditing Presidents\xe2\x80\x99\ntax returns. Id. at *2, *26\xe2\x80\x9327. We advised that executive branch officials\nwere not obliged simply to accept the committee\xe2\x80\x99s proffered legislative\npurpose at face value, but instead must \xe2\x80\x9cexamine the objective fit between\nthat purpose and the information sought, as well as any other evidence\nthat may bear upon the Committee\xe2\x80\x99s true objective.\xe2\x80\x9d Id. at *17; see also\nid. at *20 (noting the Executive Branch\xe2\x80\x99s obligation to \xe2\x80\x9cconfirm[] the\nlegitimacy of an investigative request,\xe2\x80\x9d especially \xe2\x80\x9cwhen deferring to the\nrequest would effectively surrender the Executive\xe2\x80\x99s obligations to a\nMember of Congress\xe2\x80\x9d). In that case, the Chairman and other House leaders had made numerous public statements suggesting that the request was\naimed at publicly exposing the President\xe2\x80\x99s tax returns, so \xe2\x80\x9c[n]o one could\nreasonably believe that the Committee [sought] six years of President\nTrump\xe2\x80\x99s tax returns because of a newly discovered interest in legislating\non the presidential-audit process.\xe2\x80\x9d Id. at *16\xe2\x80\x9317. We also stressed that the\ninstitutional reasons that have sometimes led courts to defer to Congress\xe2\x80\x99s\nstated legislative purpose in cases involving private parties do not apply\nto the Executive Branch, \xe2\x80\x9cwhich operates as a politically accountable\ncheck on the Legislative Branch.\xe2\x80\x9d Id. at *25. We concluded that the\nChairman\xe2\x80\x99s stated legislative purpose for his request for the President\xe2\x80\x99s\n13\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\ntax returns \xe2\x80\x9cblink[ed] reality\xe2\x80\x9d and was \xe2\x80\x9cpretextual,\xe2\x80\x9d id. at *16, and therefore was not legitimate.\nThis Office similarly questioned the legislative purpose underlying\nthree House committees\xe2\x80\x99 joint request for documents related to American\nforeign and defense policy with respect to Ukraine. There, the three committees had announced an investigation into the impeachment of the\nPresident, even though the full House had not delegated any such investigative jurisdiction to any of them. House Committees\xe2\x80\x99 Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *47\xe2\x80\x9349 (Jan. 19, 2020)\n(\xe2\x80\x9cAuthority to Investigate for Impeachment \xe2\x80\x9d). In view of this basic legal\ndefect in the requests, see id., the committees supplemented them by\nclaiming that they fell within their \xe2\x80\x9coversight and legislative jurisdiction.\xe2\x80\x9d\nId. at *8, *47 (internal quotation marks omitted).\nWe concluded that this attempt to justify the request did not establish a\nlegitimate legislative purpose, even though some of the requested materials might well have fallen within the oversight jurisdiction of one or more\nof the committees. The committee chairs had \xe2\x80\x9cmade clear\xe2\x80\x9d in their official\ncorrespondence \xe2\x80\x9cthat the committees were interested in the requested\nmaterials to support an investigation into the potential impeachment of the\nPresident, not to uncover information necessary for potential legislation\nwithin their respective areas of legislative jurisdiction.\xe2\x80\x9d Id. at *48. We\nexplained that \xe2\x80\x9c[t]he Executive Branch need not presume that [a legislative] purpose exists or accept a makeweight assertion of legislative jurisdiction.\xe2\x80\x9d Id. at *47 (internal quotation marks omitted). We thus found that\nthe committee chairmen were \xe2\x80\x9cseeking to do precisely what they said\xe2\x80\x94\ncompel the production of information to further an impeachment inquiry.\xe2\x80\x9d\nId. at *48. The inquiry therefore was made not to advance a legitimate\nlegislative purpose, but instead to further an impeachment investigation\nthat had not been authorized at the time the subpoenas were issued. Id. at\n*48\xe2\x80\x9349.\nWe also emphasized the importance of committee jurisdiction, noting\nthat \xe2\x80\x9c[a] congressional committee\xe2\x80\x99s \xe2\x80\x98right to exact testimony and to call\nfor the production of documents\xe2\x80\x99 is limited by the \xe2\x80\x98controlling charter\xe2\x80\x99 the\ncommittee has received from the House.\xe2\x80\x9d Id. at *2 (quoting United States\nv. Rumely, 345 U.S. 41, 44 (1953)); see also id. at *18\xe2\x80\x9319 (discussing the\ncommittee jurisdiction requirement in the oversight and impeachment\ncontexts); Watkins, 354 U.S. at 206 (\xe2\x80\x9cPlainly [the House\xe2\x80\x99s] committees\n14\n\n\x0cCongressional Oversight of the White House\n\nare restricted to the missions delegated to them . . . . No witness can be\ncompelled to make disclosures on matters outside that area.\xe2\x80\x9d).\nWe think that the separation of powers principles described in Mazars\nand our recent opinions guide the appropriate approach to congressional\noversight requests directed at the White House, which inherently raise\nseparation of powers concerns. \xe2\x80\x9c[I]n assessing whether a subpoena directed\xe2\x80\x9d at the White House \xe2\x80\x9cis related to, and in furtherance of, a legitimate task of Congress,\xe2\x80\x9d the White House \xe2\x80\x9cmust perform a careful analysis\nthat takes adequate account of the separation of powers principles at\nstake, including both the significant legislative interests of Congress and\nthe unique position of the President.\xe2\x80\x9d Mazars, 140 S. Ct. at 2035 (internal\nquotation marks omitted). Although Mazars addressed a subpoena that\nsought the President\xe2\x80\x99s personal financial information, there is no reason to\nthink that a lesser standard would apply to oversight requests directed at\nthe White House and its staff\xe2\x80\x94requests that bear even more closely upon\ninterests of confidentiality and the autonomy of the Executive Branch.\nThe Court made clear that \xe2\x80\x9ccongressional subpoenas for the President\xe2\x80\x99s\ninformation unavoidably pit the political branches against one another,\xe2\x80\x9d\nid. at 2034, and therefore, all such requests necessarily raise separation of\npowers concerns. See also id. at 2030 (describing certain congressional\nrequests for official documents as seeking \xe2\x80\x9cthe President\xe2\x80\x99s information\xe2\x80\x9d).\nAnd the case for closely scrutinizing such requests is even stronger where\nit is not, as in Mazars, a court that is evaluating the request, but instead\nthe Executive Branch during the constitutionally required accommodation\nprocess\xe2\x80\x94one purpose of which is to provide a process for the Executive\nBranch to check an implied investigative power that otherwise has limited\ncounterweights. See President\xe2\x80\x99s Tax Returns, 43 Op. O.L.C. __, at *25\xe2\x80\x93\n26; see also infra Part III.C (discussing the accommodation process).\nIn such instances, we have advised that Congress may be expected to\nclearly articulate its legislative purpose, and the Executive Branch may\nindependently review the proffered purpose. In considering a committee\xe2\x80\x99s\nlegislative purpose, the White House should \xe2\x80\x9cbe attentive to the nature of\nthe evidence offered by Congress to establish that a subpoena advances a\nvalid legislative purpose.\xe2\x80\x9d Mazars, 140 S. Ct. at 2036. \xe2\x80\x9cThe more detailed\nand substantial the evidence of Congress\xe2\x80\x99s legislative purpose, the better.\xe2\x80\x9d\nId. The White House may fairly expect that the committee will provide a\nstatement that \xe2\x80\x9cadequately identifies its aims and explains why the Presi15\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\ndent\xe2\x80\x99s information will advance its consideration of the possible legislation.\xe2\x80\x9d Id. In reviewing such a statement, the White House may take into\naccount all relevant facts and circumstances in ensuring that the congressional request serves a legitimate legislative purpose within the appropriate authority of the requesting committee.\nB. Exclusive Executive Functions\nBecause congressional requests for information must \xe2\x80\x9cconcern[] a subject on which legislation could be had,\xe2\x80\x9d U.S. Servicemen\xe2\x80\x99s Fund, 421 U.S.\nat 506 (internal quotation marks omitted), Congress may not conduct\noversight of the President\xe2\x80\x99s discharge of his exclusive constitutional\nauthority. \xe2\x80\x9cSince Congress may only investigate into those areas in which\nit may potentially legislate or appropriate, it cannot inquire into matters\nwhich are within the exclusive province of one of the other branches of\nthe Government.\xe2\x80\x9d Barenblatt, 360 U.S. at 111\xe2\x88\x9212; see also Scope of\nCongressional Oversight, 9 Op. O.L.C. at 62 (congressional oversight\nauthority does not extend to \xe2\x80\x9cfunctions fall[ing] within the Executive\xe2\x80\x99s\nexclusive domain\xe2\x80\x9d). Congressional requests to the White House often run\ninto this limitation to the extent they are directed at the President\xe2\x80\x99s exercise of his constitutional, rather than statutory, authorities.\nThis Office has observed that \xe2\x80\x9c[t]he Constitution assigns a variety of\npowers exclusively to the President\xe2\x80\x9d and \xe2\x80\x9cCongress may not intrude upon\nthe President\xe2\x80\x99s exercise of [those] exclusive powers.\xe2\x80\x9d Letter for Andrew\nFois, Assistant Attorney General, Office of Legislative Affairs, from Randolph D. Moss, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Inspector General for the Executive Office of the President\nat 3 (July 24, 1996) (advising that proposed legislation to establish an\ninspector general for the EOP raised serious constitutional concerns). As\nwe explained, \xe2\x80\x9cwhere the President is exercising, or has exercised, exclusive constitutional authority, Congress is wholly without authority to\nimpose [disclosure] requirements on the President or the President\xe2\x80\x99s\nadvisors.\xe2\x80\x9d Id. Because Congress may not legislate with respect to the\nPresident\xe2\x80\x99s discharge of his exclusive constitutional functions, it similarly\nmay not seek information from White House staff concerning the decision-making process in connection with the President\xe2\x80\x99s performance of\nthose functions in particular matters.\n\n16\n\n\x0cCongressional Oversight of the White House\n\nAttorney General Janet Reno drew this line in advising President Clinton with respect to a congressional subpoena seeking predecisional documents relating to a grant of clemency. The President\xe2\x80\x99s clemency decision,\nwhich is rooted in the pardon power, is a quintessential example of an\nexclusive executive power. See Schick v. Reed, 419 U.S. 256, 266 (1974)\n(the pardon power \xe2\x80\x9cflows from the Constitution . . . and . . . cannot be\nmodified, abridged, or diminished by the Congress\xe2\x80\x9d). Attorney General\nReno advised that Congress lacked the authority to subpoena the documents in question, because \xe2\x80\x9c[t]he granting of clemency pursuant to the\npardon power is unquestionably an exclusive province of the executive\nbranch,\xe2\x80\x9d and thus \xe2\x80\x9c[a] compelling argument can be made . . . that Congress has no authority whatsoever to review a President\xe2\x80\x99s clemency decision.\xe2\x80\x9d Clemency Decision, 23 Op. O.L.C. at 2. 7 Consistent with this\nconclusion, she explained, \xe2\x80\x9cit appears that Congress\xe2\x80\x99 oversight authority\ndoes not extend to the process employed in connection with a particular\nclemency decision, to the materials generated or the discussions that took\nplace as part of that process, or to the advice or views the President received in connection with a clemency decision.\xe2\x80\x9d Id. at 3\xe2\x80\x934. 8\nIn 2007, Acting Attorney General Paul Clement cited the President\xe2\x80\x99s\nexclusive constitutional powers in advising President Bush regarding an\nassertion of executive privilege with respect to internal White House\ncommunications concerning the possible exercise of the President\xe2\x80\x99s\n7 As a formal matter, the President asserted executive privilege in declining to provide\nthe subpoenaed documents, which related to the deliberations over the President\xe2\x80\x99s grant of\nclemency to sixteen members of the FALN terrorist group. Letter for Dan Burton, Chairman, Committee on Government Reform, U.S. House of Representatives, from Cheryl\nMills, Deputy Counsel to the President at 1 (Sept. 16, 1999) (relying on the \xe2\x80\x9cvital public\ninterest in assuring that the President receives candid advice from his advisors\xe2\x80\x9d). But the\nWhite House Counsel\xe2\x80\x99s Office also raised the jurisdictional issue in objecting to the\nsubpoena, stating that \xe2\x80\x9c[p]ursuant to the Constitution and the separation of powers\ndoctrine, the President\xe2\x80\x99s authority to grant clemency is not subject to legislative oversight.\xe2\x80\x9d Id.\n8 This position also served as the basis for the Justice Department\xe2\x80\x99s refusal the next\nyear to answer certain questions posed by the House Judiciary Committee regarding a\npending clemency petition. See Letter for Henry J. Hyde, Chairman, Committee on\nJudiciary, U.S. House of Representatives, from Robert Raben, Assistant Attorney General, Office of Legislative Affairs at 2 (June 21, 2000) (\xe2\x80\x9c[B]ecause Congress cannot\nlegislate regarding the process by which the Department assists the President on clemency\nmatters, Congress\xe2\x80\x99 oversight authority does not extend to that process.\xe2\x80\x9d).\n\n17\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nexclusive authority to nominate and to dismiss U.S. Attorneys: \xe2\x80\x9c[T]here is\nreason to question whether Congress has oversight authority to investigate\ndeliberations by White House officials concerning proposals to dismiss\nand replace U.S. Attorneys, because such deliberations necessarily relate\nto the potential exercise by the President of an authority assigned to him\nalone.\xe2\x80\x9d Assertion of Executive Privilege Concerning the Dismissal and\nReplacement of U.S. Attorneys, 31 Op. O.L.C. 1, 3 (2007). As Acting\nAttorney General Clement explained:\nThe Senate has the authority to approve or reject the appointment of\nofficers whose appointment by law requires the advice and consent\nof the Senate (which has been the case for U.S. Attorneys since the\nfounding of the Republic), but it is for the President to decide whom\nto nominate to such positions and whether to remove such officers\nonce appointed. Though the President traditionally consults with\nmembers of Congress about the selection of potential U.S. Attorney\nnominees as a matter of courtesy or in an effort to secure their confirmation, that does not confer upon Congress authority to inquire into the deliberations of the President with respect to the exercise of\nhis power to remove or nominate a U.S. Attorney.\nId.\nThis principle limiting the scope of Congress\xe2\x80\x99s oversight authority is\nconsistent with the Supreme Court\xe2\x80\x99s refusal to tolerate legislation that\nintrudes on the President\xe2\x80\x99s exclusive constitutional powers and duties.\nWhere the Constitution\xe2\x80\x99s text commits a power to the President exclusively, courts \xe2\x80\x9crefuse[] to tolerate any intrusion by the Legislative Branch.\xe2\x80\x9d\nPub. Citizen v. Dep\xe2\x80\x99t of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J.,\nconcurring in the judgment, joined by Rehnquist, C.J., and O\xe2\x80\x99Connor, J.);\nsee also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165\xe2\x80\x9366 (1803) (\xe2\x80\x9cBy\nthe constitution of the United States, the President is invested with certain\nimportant political powers, in the exercise of which he is to use his own\ndiscretion, and is accountable only to his country in his political character,\nand to his own conscience.\xe2\x80\x9d).\nThe President\xe2\x80\x99s exclusive powers include the powers to pardon, to sign\nor veto legislation, to nominate and appoint officers of the United States,\nand to remove officers and other officials. See Schick, 419 U.S. at 266;\nINS v. Chadha, 462 U.S. 919, 946\xe2\x80\x9348, 957\xe2\x80\x9359 (1983) (holding the legisla18\n\n\x0cCongressional Oversight of the White House\n\ntive veto an unconstitutional interference with President\xe2\x80\x99s duties pursuant\nto the Presentment Clause); Buckley v. Valeo, 424 U.S. 1, 138\xe2\x80\x9339 (1976)\n(per curiam) (\xe2\x80\x9cCongress\xe2\x80\x99 power under [the Necessary and Proper] Clause\nis inevitably bounded by the express language of [the Appointments\nClause],\xe2\x80\x9d and consequently Congress cannot provide for the appointment\nof \xe2\x80\x9c\xe2\x80\x98Officers of the United States\xe2\x80\x99\xe2\x80\x9d except through a procedure that\n\xe2\x80\x9ccomports with\xe2\x80\x9d the Appointments Clause); Myers, 272 U.S. at 161 (\xe2\x80\x9cThe\nauthority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments\xe2\x80\x9d does not \xe2\x80\x9cenable[] Congress to draw to itself, or to either branch of it, the power to\nremove or the right to participate in the exercise of that power. To do this\nwould be . . . to infringe the constitutional principle of the separation of\ngovernmental powers.\xe2\x80\x9d). Thus, while Congress may request information\npertaining to the broad range of matters about which it may legislate, that\nauthority does not extend to authorities exclusively vested in the President, including the work that the White House staff does in advising and\nassisting the President in connection with the execution of those constitutional authorities.\nThe President\xe2\x80\x99s exclusive authorities also include his powers in the area\nof diplomacy and national defense, although in many cases those powers\nclosely abut areas in which Congress may legislate. The Constitution\nentrusts the President with the \xe2\x80\x9c\xe2\x80\x98vast share of responsibility for the conduct of our foreign relations.\xe2\x80\x99\xe2\x80\x9d Am. Ins. Ass\xe2\x80\x99n v. Garamendi, 539 U.S.\n396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343\nU.S. 579, 610 (1952) (Frankfurter, J., concurring)). And that responsibility includes the \xe2\x80\x9cexclusive authority to conduct diplomacy on behalf of\nthe United States.\xe2\x80\x9d Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, at *11 (Sept. 22,\n2020) (internal quotation marks omitted); see also Prohibition of Spending for Engagement of the Office of Science and Technology Policy with\nChina, 35 Op. O.L.C. 116, 121 (2011) (recognizing the President\xe2\x80\x99s \xe2\x80\x9cexclusive authority to determine the time, scope, and objectives of international negotiations\xe2\x80\x9d (internal quotation marks omitted)). The President\xe2\x80\x99s\nauthority as Commander in Chief and Chief Executive also includes broad\nauthority over the deployment and control of the military in protecting\nAmerican persons and interests abroad. See, e.g., Training of British\nFlying Students in the United States, 40 Op. Att\xe2\x80\x99y Gen. 58, 61\xe2\x80\x9362 (1941)\n19\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\n(Jackson, Att\xe2\x80\x99y Gen.); Placing of United States Armed Forces Under\nUnited Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 185\n(1996) (\xe2\x80\x9cIt is for the President alone, as Commander-in-Chief, to make\nthe choice of the particular personnel who are to exercise operational and\ntactical command functions over the U.S. Armed Forces.\xe2\x80\x9d); Relation of\nthe President to the Executive Departments, 7 Op. Att\xe2\x80\x99y Gen. 453, 465\n(1855) (Cushing, Att\xe2\x80\x99y Gen.) (because the President \xe2\x80\x9calone\xe2\x80\x9d is the \xe2\x80\x9csupreme commander-in-chief,\xe2\x80\x9d Congress cannot \xe2\x80\x9cauthorize or create any\nmilitary officer not subordinate to the President\xe2\x80\x9d). The Executive Branch\nhas consistently asserted the President\xe2\x80\x99s exclusive authority in these areas,\nand the Supreme Court has endorsed those principles. 9\nAt the same time, Congress also has overlapping authority to legislate\nin matters touching upon foreign affairs and the national defense. Congress \xe2\x80\x9cclearly possesses significant Article I powers in the area of foreign\naffairs, including with respect to questions of war and neutrality, commerce and trade with other nations, foreign aid, and immigration.\xe2\x80\x9d Legislation Prohibiting Spending for Delegations to U.N. Agencies Chaired by\nCountries That Support International Terrorism, 33 Op. O.L.C. 221, 225\xe2\x80\x93\n26 (2009). Congress established and is responsible for funding the Department of State and the Department of Defense\xe2\x80\x94two departments that\nthe President relies upon in the discharge of his constitutional powers\xe2\x80\x94\nand Congress also has express legislative authority under Article I, Section 8, with respect to foreign trade; the raising, supporting, and regulation of the armed forces; and the declaration of war, among other powers.\nCongress\xe2\x80\x99s legislative authority in these areas provides a basis for seeking\ninformation in connection with these areas, and such oversight requests\nmay sometimes reach the White House.\n9 See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (\xe2\x80\x9c[J]udicial\nprecedent and historical practice teach that it is for the President alone to make the\nspecific decision of what foreign power he will recognize as legitimate[.]\xe2\x80\x9d); Harlow v.\nFitzgerald, 457 U.S. 800, 812 n.19 (1982) (conducting foreign relations and ensuring the\nNation\xe2\x80\x99s defense are \xe2\x80\x9ccentral Presidential domains\xe2\x80\x9d (internal quotation marks omitted));\nEx parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring in judgment,\njoined by Wayne, Swayne, and Miller, JJ.) (Congress has no authority to \xe2\x80\x9cinterfere[] with\nthe command of the forces and the conduct of campaigns\xe2\x80\x9d because \xe2\x80\x9c[t]hat power and duty\nbelong to the President as commander-in-chief\xe2\x80\x9d); In re Hennen, 38 U.S. (13 Pet.) 230,\n235 (1839) (\xe2\x80\x9cAs the executive magistrate of the country, [the President] is the only\nfunctionary intrusted with the foreign relations of the nation.\xe2\x80\x9d).\n\n20\n\n\x0cCongressional Oversight of the White House\n\nWe have previously advised on these areas of exclusive and overlapping authority in connection with congressional oversight requests related\nto the protection of classified information. The Supreme Court has explained that the President may \xe2\x80\x9cclassify and control access to information\nbearing on national security and . . . determine whether an individual is\nsufficiently trustworthy to occupy a position in the Executive Branch that\nwill give that person access to such information[.]\xe2\x80\x9d Dep\xe2\x80\x99t of the Navy v.\nEgan, 484 U.S. 518, 527 (1988). This exclusive power primarily derives\nfrom his constitutional authority as \xe2\x80\x9c\xe2\x80\x98Commander in Chief of the Army\nand Navy of the United States,\xe2\x80\x99\xe2\x80\x9d id. (quoting U.S. Const. art. II, \xc2\xa7 2,\ncl. 1), and \xe2\x80\x9cexists quite apart from any explicit congressional grant,\xe2\x80\x9d id.\nAlthough Congress does not \xe2\x80\x9centirely lack[] authority to legislate in a\nmanner that touches upon disclosure of classified information,\xe2\x80\x9d it cannot\nintrude\xe2\x80\x94through legislation or oversight\xe2\x80\x94upon the President\xe2\x80\x99s control\nover national security information. Security Clearance Adjudications by\nthe DOJ Access Review Committee, 35 Op. O.L.C. 86, 95\xe2\x80\x9396 (2011); see\nThe Department of Defense\xe2\x80\x99s Authority to Conduct Background Investigations for Its Personnel, 42 Op. O.L.C. __, at *9 (Feb. 7, 2018) (\xe2\x80\x9cwhile\nCongress is not entirely disabled from participating in the system for\nprotecting classified information, Congress may not impair the President\xe2\x80\x99s\ncontrol over national security information\xe2\x80\x9d).\nIn summary, because Congress\xe2\x80\x99s oversight authority extends only to\nthose subjects \xe2\x80\x9con which legislation could be had,\xe2\x80\x9d McGrain, 273 U.S. at\n177, the Executive Branch may properly review an oversight request\ndirected at the White House to evaluate whether the request is directed at\nthe discharge of an exclusive constitutional authority of the President or\ninstead concerns a subject about which Congress may legislate.\nIII. Constitutional Limits on\nCongressional Oversight of the White House\nEven when a congressional inquiry advances a legitimate legislative\npurpose, the separation of powers imposes other constraints on oversight\nof the White House. The accommodation process requires that \xe2\x80\x9ceach\nbranch . . . take cognizance of an implicit constitutional mandate to seek\noptimal accommodation through a realistic evaluation of the needs of the\nconflicting branches in the particular fact situation.\xe2\x80\x9d United States v. Am.\n21\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nTel. & Tel. Co. (\xe2\x80\x9cAT&T \xe2\x80\x9d), 567 F.2d 121, 127 (D.C. Cir. 1977). As discussed below, the President\xe2\x80\x99s strong interests in the independence and\nautonomy of his office, as well as the confidentiality of his communications, justify corresponding restrictions on oversight of the White House.\nCongressional requests for information from the White House are constrained by \xe2\x80\x9cthe Executive Branch\xe2\x80\x99s interests in maintaining the autonomy\nof [the] office [of the President] and safeguarding the confidentiality of its\ncommunications.\xe2\x80\x9d Cheney, 542 U.S. at 385. In addition, oversight directed at the White House implicates heightened executive branch confidentiality interests, which are particularly strong with respect to White\nHouse communications. Accordingly, when oversight involves the White\nHouse, congressional committees and the White House must work to\nrespect these constraints while accommodating the committees\xe2\x80\x99 legitimate\ninformation needs. These considerations mean that oversight requests\ndirected to the White House are typically the exception, rather than the\nnorm. Congress should generally seek information from the departments\nand agencies first before turning to the White House, and oversight requests to the White House must be tailored to accommodate the President\xe2\x80\x99s need for autonomy and confidentiality.\nA. Separation of Powers Principles\nThe President is the head of a co-equal branch of government. Congress\nand the President thus \xe2\x80\x9chave an ongoing institutional relationship as the\n\xe2\x80\x98opposite and rival\xe2\x80\x99 political branches established by the Constitution.\xe2\x80\x9d\nMazars, 140 S. Ct. at 2033\xe2\x80\x9334 (quoting The Federalist No. 51, at 349\n(James Madison)). Consequently, congressional requests for information\ndirected at the President and the White House are not \xe2\x80\x9crun-of-the-mill\nlegislative effort[s]\xe2\x80\x9d and \xe2\x80\x9cdiffer markedly from\xe2\x80\x9d congressional requests\ndirected toward others. Id. at 2034. The \xe2\x80\x9csignificant separation of powers\nissues\xe2\x80\x9d raised by such requests \xe2\x80\x9cnecessarily inform[]\xe2\x80\x9d the scope of and\nmanner in which Congress may request such information. Id. at 2026,\n2033. If Congress could freely demand the President\xe2\x80\x99s information, it\nwould \xe2\x80\x9c\xe2\x80\x98exert an imperious controul\xe2\x80\x99 over the Executive Branch and\naggrandize itself at the President\xe2\x80\x99s expense, just as the Framers feared.\xe2\x80\x9d\nId. at 2034 (quoting The Federalist No. 71, at 484). In the same way that\nthe President must respect Congress\xe2\x80\x99s institutional prerogatives, Congress\n22\n\n\x0cCongressional Oversight of the White House\n\ntoo must conduct oversight mindful of the independence and autonomy of\nthe office of the President.\nAlthough the Supreme Court\xe2\x80\x99s opinion in Mazars discussed these principles in the context of congressional requests for the President\xe2\x80\x99s personal\ninformation, these separation of powers concerns also apply to requests\nfor information from White House advisers, who assist the President \xe2\x80\x9con a\ndaily basis in the formulation of executive policy and resolution of matters affecting the military, foreign affairs, and national security and other\naspects of his discharge of his constitutional responsibilities.\xe2\x80\x9d Testimonial\nImmunity Before Congress of the Former Counsel to the President, 43 Op.\nO.L.C. __, at *5 (May 20, 2019) (\xe2\x80\x9cImmunity of the Former Counsel \xe2\x80\x9d)\n(internal quotation marks omitted).\nThe Supreme Court recognized as much in Cheney, which addressed\nthe special consideration owed to the White House in connection with\ndemands for information made in a civil action. The Court held that the\nJudicial Branch must treat civil discovery requests directed at the President\xe2\x80\x99s senior advisers differently from discovery matters involving other\nexecutive branch personnel:\nThis is not a routine discovery dispute. The discovery requests are\ndirected to the Vice President and other senior Government officials\nwho . . . give advice and make recommendations to the President.\nThe Executive Branch, at its highest level, is seeking the aid of the\ncourts to protect its constitutional prerogatives. . . . [S]pecial considerations control when the Executive Branch\xe2\x80\x99s interests in maintaining the autonomy of its office and safeguarding the confidentiality of\nits communications are implicated. This Court has held, on more\nthan one occasion, that \xe2\x80\x9c[t]he high respect that is owed to the office\nof the Chief Executive . . . is a matter that should inform the conduct\nof the entire proceeding, including the timing and scope of discovery,\xe2\x80\x9d and that the Executive\xe2\x80\x99s \xe2\x80\x9cconstitutional responsibilities and\nstatus [are] factors counseling judicial deference and restraint\xe2\x80\x9d in the\nconduct of litigation against it.\n542 U.S. at 385 (citations omitted). While the purposes of congressional\noversight and civil discovery are distinct, both involve requests from\noutside the Executive Branch. Just as separation of powers principles\nrequire the Judicial Branch to adjust the \xe2\x80\x9ctiming and scope of discovery\xe2\x80\x9d\n23\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\ndirected at presidential advisers in civil litigation, congressional committees and White House personnel also must tailor the timing and scope of\ntheir oversight accommodations in ways that respect the President\xe2\x80\x99s\ninterests in autonomy and confidentiality.\nIn Cheney, the Supreme Court reviewed the D.C. Circuit\xe2\x80\x99s denial of the\nVice President\xe2\x80\x99s petition for a writ of mandamus vacating certain discovery orders issued by a district court. The plaintiffs had sued the Vice\nPresident and others alleging that the President\xe2\x80\x99s National Energy Policy\nDevelopment Group had not complied with the disclosure requirements of\nthe Federal Advisory Committee Act, 5 U.S.C. app. \xc2\xa7\xc2\xa7 1\xe2\x80\x9315. The district\ncourt ordered the plaintiffs to \xe2\x80\x9csubmit a proposed discovery plan\xe2\x80\x9d for the\ncourt\xe2\x80\x99s approval. Judicial Watch, Inc. v. Nat\xe2\x80\x99l Energy Policy Dev. Group,\n219 F. Supp. 2d 20, 56 (D.D.C. 2002). Under the Federal Rules of Civil\nProcedure, a litigant \xe2\x80\x9cmay obtain discovery regarding any nonprivileged\nmatter that is relevant to any party\xe2\x80\x99s claim or defense.\xe2\x80\x9d Fed. R. Civ. P.\n26(b)(1). Pursuant to this broad standard governing civil discovery, the\nplaintiffs in Cheney proposed a wide-ranging discovery plan, which called\nfor the production of all documents and information concerning communications between individual National Energy Policy Development Group\nmembers outside the context of group meetings, between members and\nagency personnel, and between members and non-governmental individuals. The plaintiffs tried to use discovery to uncover confidential information concerning the deliberations of the President\xe2\x80\x99s closest advisers.\nThe Government objected to the plan to the extent that it sought documents from the Vice President and White House officials and argued,\namong other things, \xe2\x80\x9cthat in order to protect the separation of powers, the\nPresident should not be forced to consider the [executive] privilege question in response to unnecessarily broad or otherwise improper discovery.\xe2\x80\x9d\nSee In re Cheney, 334 F.3d 1096, 1105 (D.C. Cir. 2003) (internal quotation marks omitted).\nThe district court nonetheless approved the discovery plan and directed\nthat the Vice President and White House officials either \xe2\x80\x9cfully comply\nwith\xe2\x80\x9d the discovery requests, \xe2\x80\x9cfile detailed and precise objections to\nparticular requests,\xe2\x80\x9d or \xe2\x80\x9cidentify and explain their invocations of privilege\nwith particularity.\xe2\x80\x9d Id. at 1000 (internal quotation marks omitted). The\nVice President petitioned the D.C. Circuit for a writ of mandamus vacating the discovery orders on the ground that the broad requests violated the\n24\n\n\x0cCongressional Oversight of the White House\n\nseparation of powers by unduly interfering with the President\xe2\x80\x99s constitutional prerogatives, but the D.C. Circuit denied the petition. See id. at\n1109.\nThe Supreme Court reversed and remanded for the D.C. Circuit to consider whether the discovery orders \xe2\x80\x9cconstituted an unwarranted impairment of another branch in the performance of its constitutional duties.\xe2\x80\x9d\nCheney, 542 U.S. at 390. In so holding, the Court rejected the lower\ncourts\xe2\x80\x99 view that executive branch interests could have been adequately\nprotected by \xe2\x80\x9cinvoking executive privilege and filing objections to the\ndiscovery orders with \xe2\x80\x98detailed precision.\xe2\x80\x99\xe2\x80\x9d Id. at 377 (quoting In re\nCheney, 334 F.3d at 1105). The Court explained that \xe2\x80\x9cspecial considerations control\xe2\x80\x9d when White House staff and other high-level officials are\nthe subject of civil discovery requests, and that separation of powers\nconcerns might necessitate narrowing or denying requests for information\ndirected to such officials before there should arise any need to consider\ninvoking executive privilege. See id. at 385, 390. Because the information\n\xe2\x80\x9crequests [were] directed to the Vice President and other senior Government officials who served on the [Group] to give advice and make recommendations to the President,\xe2\x80\x9d the broad discovery orders threatened to\nimpinge on the Executive\xe2\x80\x99s \xe2\x80\x9cinterests in maintaining the autonomy of its\noffice and safeguarding the confidentiality of its communications.\xe2\x80\x9d Id. at\n385. Therefore, the D.C. Circuit was obliged to consider whether allowing\nthe requests to go forward would be \xe2\x80\x9can unwarranted impairment\xe2\x80\x9d of the\nExecutive Branch\xe2\x80\x99s discharge of its constitutional responsibilities. Id. at\n390.\nThe Court\xe2\x80\x99s reasoning in Cheney, which instructs courts to consider the\nPresident\xe2\x80\x99s interests in autonomy and confidentiality when fashioning\norders authorizing civil discovery directed at the White House, applies\nwith at least equal force to congressional oversight requests for information from the White House. Both congressional oversight and civil\nlitigation often concern wide-ranging information requests that involve\nthe production of documents and the taking of testimony. Just as civil\nlitigation against the \xe2\x80\x9cVice President and other senior Government officials who . . . give advice and make recommendations to the President\xe2\x80\x9d\ndoes not entail \xe2\x80\x9ca routine discovery dispute,\xe2\x80\x9d neither may congressional\noversight of the White House be viewed as comparable to routine oversight of executive branch agencies. Cf. Immunity of the Former Counsel,\n25\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\n43 Op. O.L.C. __, at *4 (\xe2\x80\x9c[T]he President\xe2\x80\x99s immediate advisers are constitutionally distinct from the heads of executive departments and agencies.\xe2\x80\x9d). In both situations, far-reaching inquiries threaten presidential\nautonomy and confidentiality. Thus, the separation of powers concerns\nrecognized in Cheney support significant limitations on the timing and\nscope of congressional oversight inquiries directed to the White House.\nIf anything, the concerns underlying the Court\xe2\x80\x99s decision in Cheney\napply with even greater force to congressional inquiries. Congress is the\nPresident\xe2\x80\x99s constitutional \xe2\x80\x9crival\xe2\x80\x9d in a manner distinct from the Judiciary.\nMazars, 140 S. Ct. at 2033 (internal quotation marks omitted). When\nCongress conducts oversight, a neutral decision-maker is not readily\navailable to appropriately balance each party\xe2\x80\x99s interests. And unlike the\ncourts\xe2\x80\x99 express authority to order discovery, Congress\xe2\x80\x99s subpoena power\nis an implied adjunct to its legislative powers that is justified as \xe2\x80\x9can\nessential and appropriate auxiliary to the legislative function.\xe2\x80\x9d Id. at 2031\n(quoting McGrain, 273 U.S. 174); cf. Nat\xe2\x80\x99l Fed\xe2\x80\x99n of Indep. Bus. v. Sebelius, 567 U.S. 519, 559 (2012) (opinion of Roberts, C.J.) (implied powers\nunder the Necessary and Proper Clause are \xe2\x80\x9cincidental\xe2\x80\x9d and cannot be\n\xe2\x80\x9cgreat substantive and independent powers\xe2\x80\x9d (internal quotation marks\nomitted)). A plaintiff in a civil action, moreover, may well have a greater\nneed for documents and other information than a congressional committee\nconducting oversight. Congressional oversight gathers information so that\nCongress may \xe2\x80\x9cexercise its legislative function advisedly and effectively,\xe2\x80\x9d\nMcGrain, 273 U.S. at 161; see also Mazars, 140 S. Ct. at 2031\xe2\x80\x9332, while\nthe purpose of civil discovery is to disclose \xe2\x80\x9cthe basic issues and facts\xe2\x80\x9d to\n\xe2\x80\x9cthe fullest practicable extent,\xe2\x80\x9d United States v. Procter & Gamble Co.,\n356 U.S. 677, 682 (1958). As the D.C. Circuit thus has recognized, \xe2\x80\x9clegislative judgments normally depend more on the predicted consequences of\nproposed legislative actions and their political acceptability[] than on\nprecise reconstruction of past events.\xe2\x80\x9d Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir. 1974) (en\nbanc). \xe2\x80\x9c[E]fforts to craft legislation involve predictive policy judgments\nthat are not hampered in quite the same way when every scrap of potentially relevant evidence is not available [to Congress].\xe2\x80\x9d Mazars, 140 S. Ct.\nat 2036 (alterations and internal quotation marks omitted).\nFurthermore, because Congress may not conduct oversight of the President\xe2\x80\x99s exclusive constitutional functions, legitimate congressional over26\n\n\x0cCongressional Oversight of the White House\n\nsight inquiries will almost always pertain to executive branch implementation of statutory programs. But the departments and agencies, not the\nWhite House, principally administer such programs, and thus it is generally unnecessary for congressional committees to request information\ndirectly from the White House unless they are unable to obtain the information from agencies. As Mazars determined with respect to the President\xe2\x80\x99s personal information, to avoid unnecessary confrontation between\nthe branches, \xe2\x80\x9cCongress may not rely on the President\xe2\x80\x99s information if\nother sources could reasonably provide Congress the information it\nneeds.\xe2\x80\x9d Id. at 2035\xe2\x80\x9336. That reasoning also applies to congressional\nrequests for White House information. Because congressional oversight\nneeds generally may be satisfied through requests to the departments and\nagencies, requests for information about programs administered outside\nthe White House should be directed there in the first instance.\nMazars and Cheney are the latest in a line of judicial precedent recognizing the separation of powers concerns underlying litigation or related\nrequests directed at the President. But the Supreme Court has long recognized that safeguarding presidential autonomy and confidentiality is\ncritical to honoring the separation of powers. See Cheney, 542 U.S. at\n385. This principle was first articulated in United States v. Burr, where\nChief Justice John Marshall, sitting at trial as a Circuit Justice, stated that\n\xe2\x80\x9c[i]n no case of this kind would a court be required to proceed against the\npresident as against an ordinary individual.\xe2\x80\x9d 25 F. Cas. 187, 192 (C.C. Va.\n1807) (No. 14,694). In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the\nCourt held that a sitting or former President is absolutely immune from\ncivil actions for damages arising from his official acts. Underlying this\nbright-line rule is the rationale that \xe2\x80\x9c[b]ecause of the singular importance\nof the President\xe2\x80\x99s duties, diversion of his energies . . . would raise unique\nrisks to the effective functioning of government.\xe2\x80\x9d Id. at 751. 10 The PresiThe Supreme Court has held that presidential aides are generally treated differently\nfrom the President for purposes of immunity in civil litigation, receiving qualified immunity rather than absolute immunity. Harlow, 457 U.S. at 809. But see id. at 812 & n.19\n(acknowledging that \xe2\x80\x9c[f ]or aides entrusted with discretionary authority in such sensitive\nareas as national security or foreign policy, absolute immunity might well be justified to\nprotect the unhesitating performance of functions vital to the national interest\xe2\x80\x9d). Yet that\ndistinction is entirely consistent with Cheney\xe2\x80\x99s holding that \xe2\x80\x9cspecial considerations\xe2\x80\x9d apply\nto civil discovery requests directed to White House officials and others who \xe2\x80\x9cgive advice\n10\n\n27\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\ndent\xe2\x80\x99s energies may be inappropriately diverted by congressional oversight just as they may be by private litigation. See Immunity of the Former\nCounsel, 43 Op. O.L.C. __, at *5 (explaining that permitting congressional committees to compel the President\xe2\x80\x99s immediate advisers to testify\nwould allow the committees to \xe2\x80\x9charass those advisers in an effort to\ninfluence their conduct, retaliate for actions the committee disliked, or\nembarrass and weaken the President for partisan gain\xe2\x80\x9d and would force\nthe advisers \xe2\x80\x9cto divert time and attention from their duties to the President\xe2\x80\x9d (internal quotation marks omitted)).\nIn the oversight context, the President\xe2\x80\x99s interest in the White House\xe2\x80\x99s\nautonomy may be compromised not only by congressional inquiries that\ndistract personnel and drain critical resources, but also by the potential\n\xe2\x80\x9cchilling effect\xe2\x80\x9d such demands would have on the interactions between\nthe President and his advisers. See Testimonial Immunity Before Congress\nof the Assistant to the President and Senior Counselor to the President,\n43 Op. O.L.C. __, at *2 (July 12, 2019) (\xe2\x80\x9cCongressional questioning of\nthe President\xe2\x80\x99s senior advisers would . . . undermine the independence and\ncandor of executive branch deliberations.\xe2\x80\x9d). Intrusive congressional oversight of the White House\xe2\x80\x99s interaction with departments and agencies may\ncause White House staff members to conform their information-gathering\nand policy-formulation processes to the demands of Congress instead of\nthe needs of the President. Yet the President needs his staff to provide him\nwith frank and candid judgments to \xe2\x80\x9caccomplish[] [his] constitutionally\nassigned functions.\xe2\x80\x9d Nixon v. Adm\xe2\x80\x99r of Gen. Servs., 433 U.S. at 443.\nThere is little doubt that intrusive oversight inquiries could chill and\notherwise undermine these kinds of White House staff activities. See\nScope of Congressional Oversight, 9 Op. O.L.C. at 62 (\xe2\x80\x9cCongress\xe2\x80\x99 power\nof inquiry must not be permitted to negate the President\xe2\x80\x99s constitutional\nand make recommendations to the President.\xe2\x80\x9d 542 U.S. at 385. As we have explained in\ndeclining to apply Harlow to narrow the traditional constraints governing the congressional testimony of senior presidential advisers, \xe2\x80\x9cthe prospect of compelled congressional\ntestimony raises separation of powers concerns that are not present in a civil damages\nlawsuit brought by a private party.\xe2\x80\x9d Immunity of the Former Counsel, 43 Op. O.L.C. __,\nat *13. Compelled congressional testimony \xe2\x80\x9cthreatens to subject presidential advisers to\ncoercion and harassment, create a heightened impression of presidential subordination to\nCongress, and cause public disclosure of confidential presidential communications in a\nway that the careful development of evidence through a judicially monitored [proceeding]\ndoes not.\xe2\x80\x9d Id. (internal quotation marks omitted).\n\n28\n\n\x0cCongressional Oversight of the White House\n\nresponsibility for managing and controlling affairs committed to the\nExecutive Branch.\xe2\x80\x9d).\nClosely related to the President\xe2\x80\x99s interest in securing the White House\xe2\x80\x99s\nautonomy is his interest in \xe2\x80\x9csafeguarding the confidentiality of its communications.\xe2\x80\x9d Cheney, 542 U.S. at 385. The Supreme Court has made\nclear that the President\xe2\x80\x99s interest in the confidentiality of his decisionmaking is a central component of the constitutional separation of powers.\nIn United States v. Nixon, the Court stressed that \xe2\x80\x9c[a] President and those\nwho assist him must be free to explore alternatives in the process of\nshaping policies and making decisions and to do so in a way many would\nbe unwilling to express except privately.\xe2\x80\x9d 418 U.S. 683, 708 (1974).\nAlthough Nixon concerned a judicial demand for documents protected by\nexecutive privilege, this Office has long expressed the view that \xe2\x80\x9c[the]\nreasons for the constitutional privilege have at least as much force when it\nis Congress, instead of a court, that is seeking information.\xe2\x80\x9d Congressional Requests, 13 Op. O.L.C. at 156. Indeed, \xe2\x80\x9cthe prospect that predecisional deliberative communications will be disclosed to Congress is, if\nanything, more likely to chill internal debate among executive branch\nadvisers than the possibility of disclosure to the judicial branch.\xe2\x80\x9d Memorandum for Janet Reno, Attorney General, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Demands to Interview Prosecutors and Review Deliberative Documents in\nClosed Cases at 14\xe2\x80\x9315 (Nov. 23, 1993). 11 Because many White House\n11\n\nAs this Office has explained more fully:\nWhen the Supreme Court held that the need for presidential communications in the\ncriminal trial of President Nixon\xe2\x80\x99s close aides outweighed the constitutional privilege, an important premise of its decision was that it did not believe that advisers\nwill be moved to temper the candor of their remarks by the infrequent occasions of\ndisclosure because of the possibility that such conversations will be called for in the\ncontext of a criminal prosecution. By contrast, congressional requests for executive\nbranch deliberative information are anything but infrequent. Moreover, compared\nto a criminal prosecution, a congressional investigation is usually sweeping; its issues are seldom narrowly defined, and the inquiry is not restricted by the rules of\nevidence. Finally, when Congress is investigating, it is by its own account often in\nan adversarial position to the executive branch and initiating action to override\njudgments made by the executive branch. This increases the likelihood that candid\nadvice from executive branch advisers will be taken out of context or misconstrued.\n\nCongressional Requests, 13 Op. O.L.C. at 156\xe2\x80\x9357 (internal quotation marks and citations\nomitted).\n\n29\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nstaff members enjoy extensive access to the President, play important\nroles in developing presidential policy, and often serve as the President\xe2\x80\x99s\nalter ego, the President\xe2\x80\x99s interest in the confidentiality of White House\nactivities must be afforded considerable weight in assessing the legitimacy of an exercise of Congress\xe2\x80\x99s oversight functions.\nB. Executive Privilege and White House Information\nThe heightened executive privilege interests that apply to White House\ncommunications provide an additional basis for distinguishing oversight\ninquiries directed at the White House from oversight of departments and\nagencies. Presidents have invoked executive privilege since the earliest\ndays of the Republic, and the Supreme Court has recognized the privilege\nand held it to be an implied power under the Constitution. See Nixon, 418\nU.S. at 705, 708; see also id. at 711 (\xe2\x80\x9cNowhere in the Constitution . . . is\nthere any explicit reference to a privilege of confidentiality, yet to the\nextent this interest relates to the effective discharge of a President\xe2\x80\x99s\npowers, it is constitutionally based.\xe2\x80\x9d); Congressional Requests, 13 Op.\nO.L.C. at 154 (explaining that the existence of executive privilege is a\n\xe2\x80\x9cnecessary corollary of the executive function vested in the President by\nArticle II of the Constitution\xe2\x80\x9d). The Court has described the privilege as\n\xe2\x80\x9cderiv[ing] from the supremacy of each branch within its own assigned\narea of constitutional duties,\xe2\x80\x9d \xe2\x80\x9cfundamental to the operation of Government,\xe2\x80\x9d \xe2\x80\x9cand inextricably rooted in the separation of powers under the\nConstitution.\xe2\x80\x9d Nixon, 418 U.S. at 705, 708. The privilege \xe2\x80\x9csafeguards the\npublic interest in candid, confidential deliberations within the Executive\nBranch,\xe2\x80\x9d and, as a result, \xe2\x80\x9cinformation subject to executive privilege\ndeserves the greatest protection consistent with the fair administration of\njustice.\xe2\x80\x9d Mazars, 140 S. Ct. at 2032 (internal quotation marks omitted).\nThere are at least five well-recognized, and sometimes overlapping,\ncomponents of executive privilege: national security and foreign affairs,\nlaw enforcement, deliberative process, attorney-client communications\nand attorney work product, and presidential communications. See Attempted Exclusion of Agency Counsel from Congressional Depositions of\nAgency Employees, 43 Op. O.L.C. __, at *8 & n.2 (May 23, 2019) (\xe2\x80\x9cExclusion of Agency Counsel \xe2\x80\x9d); Assertion of Executive Privilege Concerning\nthe Special Counsel\xe2\x80\x99s Interviews of the Vice President and Senior White\nHouse Staff, 32 Op. O.L.C. 7, 8 (2008); Executive Privilege: The With30\n\n\x0cCongressional Oversight of the White House\n\nholding of Information by the Executive: Hearing on S. 1125 Before the\nSubcomm. on Separation of Powers of the S. Comm. on the Judiciary,\n92nd Cong. 420 (1971) (statement of William Rehnquist, Assistant Attorney General, Office of Legal Counsel). Generally speaking, the national\nsecurity and foreign affairs component provides absolute protection for\nmaterials the release of which would jeopardize sensitive diplomatic,\nnational security, or military matters, including classified information and\ndiplomatic communications. 12 Similarly, the law enforcement component\nof the privilege gives the Executive Branch a near-absolute right to withhold from Congress information that would compromise ongoing law\nenforcement activities. 13 Both of these components of executive privilege\nare deeply rooted in the Constitution and the Nation\xe2\x80\x99s history.\n12 See, e.g., Egan, 484 U.S. at 527 (explaining that the President\xe2\x80\x99s \xe2\x80\x9cauthority to classify and control access to information bearing on national security . . . flows primarily from\nth[e] constitutional investment of [the Commander in Chief] power in the President\xe2\x80\x9d);\nUnited States v. Reynolds, 345 U.S. 1, 10\xe2\x80\x9311 (1953) (recognizing the national security\ncomponent of the privilege in civil litigation involving military equipment); In re United\nStates, 872 F.2d 472, 476 (D.C. Cir. 1989) (explaining that the privilege provides absolute\nprotection for information the release of which would impair the Nation\xe2\x80\x99s defense,\ndisclose intelligence activities, or disrupt diplomatic relations with foreign governments);\nHalkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (explaining that \xe2\x80\x9cmatters the revelation of which reasonably could be seen as a threat to the military or diplomatic interests of\nthe nation . . . are absolutely privileged from disclosure in the courts\xe2\x80\x9d); Whistleblower\nProtections for Classified Disclosures, 22 Op. O.L.C. 92, 97 (1998) (\xe2\x80\x9c[S]ince the Washington Administration, Presidents and their senior advisers have repeatedly concluded that\nour constitutional system grants the executive branch authority to control the disposition\nof secret information.\xe2\x80\x9d); Memorandum for C. Boyden Gray, Counsel to the President,\nfrom J. Michael Luttig, Principal Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Congressional Access to Presidential Communications at 2\xe2\x80\x9311 (Dec. 21,\n1989) (explaining the absolute scope of the national security component in the context of\ncongressional investigations); Memorandum from William H. Rehnquist, Assistant\nAttorney General, Office of Legal Counsel, and John R. Stevenson, Legal Adviser,\nDepartment of State, Re: The President\xe2\x80\x99s Executive Privilege to Withhold Foreign Policy\nand National Security Information at 7 (Dec. 8, 1969) (\xe2\x80\x9c[N]ational security and foreign\nrelations considerations have been considered the strongest possible basis upon which to\ninvoke the privilege of the executive.\xe2\x80\x9d); see also Nixon, 418 U.S. at 706 (recognizing that\nexecutive privilege may be absolute \xe2\x80\x9cto protect military, diplomatic, or sensitive national\nsecurity secrets\xe2\x80\x9d).\n13 See Temporary Certification Under the President John F. Kennedy Assassination\nRecords Collection Act of 1992, 41 Op. O.L.C. __ (Oct. 26, 2017); Investigative Authority\nof the General Accounting Office, 12 Op. O.L.C. 171, 177 (1988) (\xe2\x80\x9cWith respect to open\n\n31\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nCongressional inquiries to the White House more often implicate the\ndeliberative process, the attorney-client communications and attorney\nwork product, and particularly the presidential communications components of executive privilege. These components are also deeply rooted,\nand they protect from disclosure internal communications and information\nconcerning presidential and other executive branch decision-making.\nThey are based on the principle that the effective operation of the Executive Branch depends on shielding deliberative communications and advice\nfrom disclosure. See Confidentiality of the Attorney General\xe2\x80\x99s Communications in Counseling the President, 6 Op. O.L.C. 481, 484\xe2\x80\x9397 (1982)\n(\xe2\x80\x9cAttorney General\xe2\x80\x99s Communications\xe2\x80\x9d).\nThe deliberative process component of executive privilege \xe2\x80\x9csafeguards\nthe public interest in candid, confidential deliberations within the Executive Branch\xe2\x80\x9d and protects all executive branch documents that reflect\nadvisory opinions, recommendations, and other deliberative communications generated during governmental decision-making. Mazars, 140 S. Ct.\nat 2032; see In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); see\nalso Congressional Requests, 13 Op. O.L.C. at 156\xe2\x80\x9357 & n.3 (explaining\nthe applicability of this component in the context of congressional requests for information). The deliberative process component is premised\non the fact that disclosing the \xe2\x80\x9ccommunications and the ingredients of the\ndecisionmaking process\xe2\x80\x9d would inevitably cause \xe2\x80\x9cinjury to the quality of\nagency decisions\xe2\x80\x9d by inhibiting \xe2\x80\x9c\xe2\x80\x98frank discussion of legal or policy\n\nlaw enforcement files, it has been the policy of the executive branch throughout our\nNation\xe2\x80\x99s history to protect these files from any breach of confidentiality, except in\nextraordinary circumstances.\xe2\x80\x9d); Independent Counsel Act Requests, 10 Op. O.L.C. at 75\xe2\x80\x93\n78 (explaining the Executive Branch\xe2\x80\x99s authority to withhold open and closed law enforcement files from Congress); Prosecution for Contempt of Congress of an Executive\nBranch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 117\n(1984) (\xe2\x80\x9cSince the early part of the 19th century, Presidents have steadfastly protected the\nconfidentiality and integrity of investigative files from untimely, inappropriate, or uncontrollable access by the other branches, particularly the legislature.\xe2\x80\x9d); Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files, 6 Op.\nO.L.C. 31, 32\xe2\x80\x9333 (1982) (same concerning law enforcement files of the Environmental\nProtection Agency); Position of the Executive Department Regarding Investigative\nReports, 40 Op. Att\xe2\x80\x99y Gen. 45, 47 (1941) (same concerning investigative files of the\nFederal Bureau of Investigation).\n\n32\n\n\x0cCongressional Oversight of the White House\n\nmatters.\xe2\x80\x99\xe2\x80\x9d NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 151 (1975)\n(citation omitted). As the Supreme Court explained in Nixon:\n[There is a] valid need for protection of communications between\nhigh Government officials and those who advise and assist them in\nthe performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and\nfor their own interests to the detriment of the decisionmaking process.\n418 U.S. at 705; see also Dep\xe2\x80\x99t of the Interior v. Klamath Water Users\nProtective Ass\xe2\x80\x99n, 532 U.S. 1, 8\xe2\x80\x939 (2001) (explaining that the deliberative\nprocess component \xe2\x80\x9crests on the obvious realization that officials will not\ncommunicate candidly among themselves if each remark is a potential\nitem of discovery and front page news, and its object is to enhance the\nquality of agency decisions, by protecting open and frank discussion\namong those who make them\xe2\x80\x9d (internal quotation marks and citation\nomitted)). The deliberative process component of executive privilege\napplies especially strongly when the deliberations in question are ongoing. See Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C.\n__, at *10\xe2\x80\x9311 (Jan. 17, 2020) (\xe2\x80\x9cPublication of Report on Imports\xe2\x80\x9d). But\nthe deliberative process component has certain limits: It protects predecisional and deliberative materials and typically does not \xe2\x80\x9cshield documents\nthat simply state or explain a decision the government has already made\nor protect material that is purely factual.\xe2\x80\x9d Sealed Case, 121 F.3d at 737.\nAgencies may withhold factual information only to the extent it is \xe2\x80\x9cso\ninextricably intertwined with the deliberative sections of documents that\nits disclosure would inevitably reveal the government\xe2\x80\x99s deliberations.\xe2\x80\x9d Id.\nThe attorney-client communications and attorney work product component of executive privilege protects executive branch communications and\ndocuments that involve legal analysis, legal advice, and other attorney\ncommunications or work product. See Assertion of Executive Privilege\nRegarding White House Counsel\xe2\x80\x99s Office Documents, 20 Op. O.L.C. 2, 3\n(1996) (Reno, Att\xe2\x80\x99y Gen.) (recognizing that \xe2\x80\x9c[e]xecutive privilege applies\xe2\x80\x9d to certain documents \xe2\x80\x9cbecause of their deliberative nature, and\n33\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nbecause they fall within the scope of the attorney-client privilege and the\nwork-product doctrine\xe2\x80\x9d). Often, such communications will be protected\nby the deliberative process component in addition to the attorney-client\nand attorney work product component. Yet \xe2\x80\x9c\xe2\x80\x98the reasons for the constitutional privilege against the compelled disclosure of executive branch\ndeliberations have special force when legal advice is involved,\xe2\x80\x99\xe2\x80\x9d because\n\xe2\x80\x9c\xe2\x80\x98legal matters are likely to be among those on which high government\nofficials most need, and should be encouraged to seek, objective, expert\nadvice.\xe2\x80\x99\xe2\x80\x9d Attorney General\xe2\x80\x99s Communications, 6 Op. O.L.C. at 490 n.17\n(citation omitted); see also Constitutionality of the OLC Reporting Act of\n2008, 32 Op. O.L.C. 14, 17 (2008) (Mukasey, Att\xe2\x80\x99y Gen.) (\xe2\x80\x9c[I]f executive\nbranch officials are to execute their constitutional and statutory responsibilities, they must have access to candid and confidential legal advice and\nassistance.\xe2\x80\x9d).\nThe presidential communications component of executive privilege,\nwhich is the most salient component for White House purposes, protects\ncommunications made in connection with presidential decision-making.\nSee Nixon, 418 U.S. at 708 (explaining importance of presidential communications privilege in government operations); Sealed Case, 121 F.3d\nat 746 (explaining that the \xe2\x80\x9cpresidential [communications] privilege\naffords greater protection against disclosure\xe2\x80\x9d than the deliberative process privilege); Memorandum for the Attorney General from John M.\nHarmon, Assistant Attorney General, Office of Legal Counsel, Re: The\nConstitutional Privilege for Executive Branch Deliberations: The Dispute with a House Subcommittee over Documents Concerning the Gasoline Conservation Fee at 13 (Jan. 13, 1981) (\xe2\x80\x9cExecutive Branch Deliberations\xe2\x80\x9d). Although the presidential communications component applies\nonly to presidential decision-making, it is broader than the deliberative\nprocess component in terms of the types of communications that are\nprotected. All presidential communications are \xe2\x80\x9cpresumptively privileged\xe2\x80\x9d and protected from disclosure, including post-decisional exchanges and documents conveying purely factual information. Nixon, 418 U.S.\nat 708, 713\xe2\x80\x9314 (explaining that a presumptive privilege applies to the\nPresident\xe2\x80\x99s \xe2\x80\x9cconversations and correspondence\xe2\x80\x9d); see also Sealed Case,\n121 F.3d at 745 (\xe2\x80\x9c[U]nlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety,\nand covers final and post-decisional materials as well as pre-deliberative\n34\n\n\x0cCongressional Oversight of the White House\n\nones.\xe2\x80\x9d). In addition, this component of executive privilege covers communications between the President and agencies concerning presidential\ndecision-making, including communications concerning the exercise of\nstatutory authority. See Publication of Report on Imports, 44 Op. O.L.C.\n__, at *7\xe2\x80\x939.\nThe presidential communications component of executive privilege is\nnot limited to exchanges directly involving the President. The Supreme\nCourt emphasized in Nixon that the \xe2\x80\x9cPresident and those who assist him\nmust be free to explore alternatives in the process of shaping policies and\nmaking decisions,\xe2\x80\x9d 418 U.S. at 708 (emphasis added), and explicitly\ndescribed the privilege as protecting communications within the President\xe2\x80\x99s \xe2\x80\x9coffice,\xe2\x80\x9d id. at 712\xe2\x80\x9313. We have consistently recognized that for\nthe President to obtain full, frank, and complete advice, the presidential\ncommunications component must apply to deliberations among the President\xe2\x80\x99s advisers and their staffs. See, e.g., Attorney General\xe2\x80\x99s Communications, 6 Op. O.L.C. at 485\xe2\x80\x9386 & n.11 (explaining that the presidential\ncommunications privilege protects the presidential \xe2\x80\x9cdecisionmaking\nprocess\xe2\x80\x9d and, therefore, can apply to the work of presidential advisers).\nThe D.C. Circuit agreed in 1997, when it held that \xe2\x80\x9ccommunications\nmade by presidential advisers in the course of preparing advice for the\nPresident come under the presidential communications privilege, even\nwhen these communications are not made directly to the President.\xe2\x80\x9d\nSealed Case, 121 F.3d at 751\xe2\x80\x9352. In reaching this conclusion, the court,\nechoing the Supreme Court\xe2\x80\x99s analysis in Nixon, warned that \xe2\x80\x9c[i]f presidential advisers must assume they will be held to account publicly for all\napproaches that were advanced, considered, but ultimately rejected, they\nwill almost inevitably be inclined to avoid serious consideration of novel\nor controversial approaches to presidential problems.\xe2\x80\x9d Id. at 750. Excluding presidential advisers and their staffs from the presidential communications component would hinder the President\xe2\x80\x99s \xe2\x80\x9caccess to honest and\ninformed advice\xe2\x80\x9d and limit his \xe2\x80\x9cability to explore possible policy options.\xe2\x80\x9d Id. at 751. A narrower privilege would \xe2\x80\x9cimpede . . . the presidency,\xe2\x80\x9d id., and diminish the quality of presidential decisions:\nPresidential advisers do not explore alternatives only in conversations with the President or pull their final advice to him out of thin\nair\xe2\x80\x94if they do, their advice is not likely to be worth much. Rather,\n35\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nthe most valuable advisers will investigate the factual context of a\nproblem in detail, obtain input from all others with significant expertise in the area, and perform detailed analyses of several different\npolicy options before coming to closure on a recommendation for the\nChief Executive. The President himself must make decisions relying\nsubstantially, if not entirely, on the information and analysis supplied by advisers.\nId. at 750. 14\nAgainst this backdrop, communications within the White House and\nbetween White House staff and other EOP components that concern\npossible presidential decision-making will normally fall under the presidential communications component of executive privilege, and not just\nthe deliberative process or attorney-client communications and attorney\nwork product components that apply to all government agencies and that\nare most commonly implicated when congressional committees make\noversight requests of executive agencies. See Executive Branch Deliberations at 12 (concluding that \xe2\x80\x9c\xe2\x80\x98presidential\xe2\x80\x99 communications . . . presumably [include] discussions among the President\xe2\x80\x99s aides and officials in the\nExecutive Office of the President \xe2\x80\x9d (emphasis added)). Consequently, a\ncongressional request for internal White House communications and intraEOP communications will frequently implicate the presidential communications component of executive privilege. As a result, oversight directed\nat the White House will typically involve privilege interests that are, on\nthe whole, considerably greater than those arising solely in the agency\ncontext, where other components are more commonly implicated.\n\n14 In Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004), the\nD.C. Circuit in dictum construed Sealed Case\xe2\x80\x99s use of the phrase \xe2\x80\x9cWhite House adviser\xe2\x80\x9d\nwhen describing the scope of the presidential communications privilege as restricting the\nprivilege to the President\xe2\x80\x99s \xe2\x80\x9cimmediate advisers in the Office of the President\xe2\x80\x9d (a component of the EOP also called the White House Office). Id. at 1123; see id. at 1109 n.1,\n1116\xe2\x80\x9317, 1123\xe2\x80\x9324. This assumption misinterprets Sealed Case. Its explicit holding that\ncommunications by \xe2\x80\x9cpresidential advisers\xe2\x80\x9d and \xe2\x80\x9ctheir staff \xe2\x80\x9d made \xe2\x80\x9cin the course of\npreparing advice for the President come under the presidential communications privilege\xe2\x80\x9d\nindicates that the privilege must encompass advisers in EOP entities outside the Office of\nthe President whose primary function is to advise and assist the President. See 121 F.3d at\n751\xe2\x80\x9352.\n\n36\n\n\x0cCongressional Oversight of the White House\n\nC. The Accommodation Process\nfor Oversight of the White House\nGiven the President\xe2\x80\x99s interests in autonomy and confidentiality, the accommodation process will often lead to a different balance when applied\nto the White House as compared to the departments and agencies. It is\nlong-standing executive branch policy that upon receipt of an authorized\noversight request that is in furtherance of a legitimate legislative purpose,\ndepartments and agencies should \xe2\x80\x9ccomply with Congressional requests for\ninformation to the fullest extent consistent with the constitutional and\nstatutory obligations of the Executive Branch.\xe2\x80\x9d Memorandum for Heads\nof Executive Departments and Agencies from Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information\nat 1 (Nov. 4, 1982) (\xe2\x80\x9cReagan Memorandum\xe2\x80\x9d). The manner of that compliance is determined by the operation of the accommodation process\nmandated by the Constitution, recognized by the Judicial Branch, and\npracticed by the Executive and Legislative Branches. \xe2\x80\x9cHistorically, good\nfaith negotiations between Congress and the Executive Branch have\nminimized the need for invoking executive privilege,\xe2\x80\x9d and \xe2\x80\x9cthis tradition\nof accommodation\xe2\x80\x9d has remained \xe2\x80\x9cthe primary means of resolving conflicts between the Branches.\xe2\x80\x9d Id.\nThe Supreme Court has also recognized that disputes over congressional demands for executive documents ordinarily \xe2\x80\x9chave been hashed out in\nthe \xe2\x80\x98hurly-burly, the give-and-take of the political process between the\nlegislative and the executive.\xe2\x80\x99\xe2\x80\x9d Mazars, 140 S. Ct. at 2029 (quoting Executive Privilege\xe2\x80\x94Secrecy in Government: Hearings on S. 2170, S. 2378,\nand S. 2420 Before the Subcomm. on Intergovernmental Relations of the\nS. Comm. on Gov\xe2\x80\x99t Operations, 94th Cong. 87 (1975) (statement of Antonin Scalia, Assistant Attorney General, Office of Legal Counsel)). Since\nthe Washington Administration, the Executive Branch has resisted congressional information demands that were overly burdensome or threatened to impair \xe2\x80\x9cthe public good.\xe2\x80\x9d Id. at 2029\xe2\x80\x9330 (internal quotation marks\nomitted). Executive branch resistance, in turn, has often been met by\ncongressional pressure, which was then followed by subsequent negotiations between the branches. In most instances, Congress and the Executive Branch have reached a compromise in which Congress might, for\nexample, narrow the scope of its request or better articulate its needs, and\n37\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nthe Executive Branch might, for example, supply a subset of the requested\ndocuments, provide summaries of the information requested, or permit in\ncamera review of particular documents. Id. This long-standing \xe2\x80\x9ctradition\nof negotiation and compromise\xe2\x80\x9d stands at the heart of the accommodation\nprocess. Id. at 2031.\nIn AT&T, the D.C. Circuit discussed the constitutional foundations for\nthe accommodation process. 567 F.2d 121. There, the Department of\nJustice sought to enjoin AT&T from complying with a congressional\nsubpoena that the Executive Branch believed implicated highly classified\ninformation, the disclosure of which would be detrimental to national\nsecurity. The D.C. Circuit declined to decide the case on the merits and\ninstead mandated a \xe2\x80\x9cprocedure giv[ing] promise of satisfying the substantial needs of both [branches].\xe2\x80\x9d Id. at 123. The court stated:\nThe framers . . . expect[ed] that where conflicts in scope of authority\narose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most\nlikely to result in efficient and effective functioning of our governmental system. . . . [E]ach branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through\na realistic evaluation of the needs of the conflicting branches in the\nparticular fact situation.\nId. at 127. \xe2\x80\x9c[T]he resolution of conflict between the coordinate branches\nin these situations must be regarded as an opportunity for a constructive\nmodus vivendi, which positively promotes the functioning of our system.\xe2\x80\x9d\nId. at 130.\nIn light of this history and precedent, both the Executive Branch and\nCongress have recognized their respective constitutional obligations to\nseek accommodation through good faith negotiations over their respective\ninterests. See, e.g., Elizabeth B. Bazan & Morton Rosenberg, Cong.\nResearch Serv., Congressional Oversight of Judges and Justices 10 (May\n31, 2005) (\xe2\x80\x9cAlthough the accommodation process between Congress and\nthe Executive Branch is conducted in a highly political atmosphere, the\narguments made by each side are usually grounded in legal doctrine and\nrely heavily on their interpretations and past experiences. At times, the\nExecutive Branch is able to persuade Congress that a particular request is\ninsufficiently weighty[.]\xe2\x80\x9d); Congressional Requests, 13 Op. O.L.C. at 159\n38\n\n\x0cCongressional Oversight of the White House\n\n(\xe2\x80\x9cThe process of accommodation requires that each branch explain to the\nother why it believes its needs to be legitimate. Without such an explanation, it may be difficult or impossible to assess the needs of one branch\nand relate them to those of the other.\xe2\x80\x9d); Assertion of Executive Privilege\nin Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981)\n(Smith, Att\xe2\x80\x99y Gen.) (\xe2\x80\x9cThe accommodation required is not simply an\nexchange of concessions or a test of political strength. It is an obligation\nof each branch to make a principled effort to acknowledge, and if possible\nto meet, the legitimate needs of the other branch.\xe2\x80\x9d). The accommodation\nprocess has usually proved successful in reconciling congressional informational needs with the Executive Branch\xe2\x80\x99s interests, and so congressional committees rarely pursue citing executive branch officials for contempt\nof Congress to enforce their document and testimonial subpoenas, see\ninfra Part IV.A, and Presidents rarely invoke executive privilege.\nBecause the accommodation process is premised upon working out\neach branch\xe2\x80\x99s needs and interests, the outcome of that process may differ\nwhen it comes to the White House. As explained in Part I, the White\nHouse functions separately from the departments and agencies and historically has been \xe2\x80\x9ca combined administrative, advisory, planning, and\npolicy-formulating office serving the President in an intimate, indispensable capacity.\xe2\x80\x9d Clinton L. Rossiter, The Constitutional Significance of the\nExecutive Office of the President, 43 Am. Pol. Sci. Rev. 1206, 1215\n(1949). To a much greater degree than other parts of the Executive\nBranch, the White House serves to advise and assist the President, particularly in the discharge of his constitutional functions. Although there\nmay be occasions when a congressional committee can appropriately seek\ninformation from the White House, particularly where the President is\ncharged with the discharge of statutory functions, the separation of powers principles discussed above impose significant constraints on White\nHouse oversight, as reflected in long-standing practice. 15 The timing and\n15 See, e.g., Letter for John W. Byrnes, House of Representatives, from Joseph Campbell, Comptroller General of the United States at 2 (Sept. 18, 1962) (\xe2\x80\x9c[W]e are certain you\nunderstand that [Comptroller General] investigations of White House activities are not\nsubject to the same techniques as those conducted in the various departments and agencies. Files of the White House Office, with the exception of financial records, are normally not available to us. Also, White House personnel are not always available for interview. This has been the situation in all recent Administrations.\xe2\x80\x9d); see also Cong. Research\n\n39\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nscope of inquiries directed to the White House, and the accommodations\noffered by the White House, must be sensitive to the President\xe2\x80\x99s interests\nin autonomy and confidentiality, as well as the heightened confidentiality\ninterests in White House communications. They also must reflect the\ndifferent balance of needs and interests that applies to oversight of the\nWhite House: Congressional needs are often more attenuated (because it\nis the departments and agencies that administer most statutory programs),\nand the Executive Branch\xe2\x80\x99s institutional interests are greater (based on the\nPresident\xe2\x80\x99s need for autonomy and the heightened confidentiality interests).\nAs with all oversight requests, the White House may properly insist\nthat a congressional committee articulate a legitimate legislative purpose\nfor inquiries directed at the White House. See Barenblatt, 360 U.S. at\n111\xe2\x80\x9312; Watkins, 354 U.S. at 187. The committee\xe2\x80\x99s legislative purpose\nshould be \xe2\x80\x9ccarefully assess[ed],\xe2\x80\x9d whether or not the information sought is\nlikely to be protected by executive privilege. Mazars, 140 S. Ct. at 2035.\nThe White House should independently \xe2\x80\x9cexamine the objective fit between that purpose and the information sought, as well as any other evidence that may bear upon the Committee\xe2\x80\x99s true objective.\xe2\x80\x9d President\xe2\x80\x99s\nTax Returns, 43 Op. O.L.C. __, at *17. If the legitimate purpose underlying the oversight request appears unclear, White House staff may request\nthat the committee clarify that purpose. See id. at *26 (\xe2\x80\x9cThe separation of\npowers would be dramatically impaired were the Executive required to\n. . . accept[] the legitimacy of any reason proffered by Congress, even in\nthe face of clear evidence to the contrary.\xe2\x80\x9d). The White House must take\ncare to ensure that the requests involve a legitimate legislative purpose\n\nServ., RL31351, Presidential Advisers\xe2\x80\x99 Testimony Before Congressional Committees: An\nOverview 21 (Dec. 15, 2014) (\xe2\x80\x9cGiven the tradition of comity between the executive and\nlegislative branches, Congress often elects not to request the appearance of presidential\naides. When Congress has requested the appearance of such aides, Presidents and their\naides have at times resisted, asserting the separation of powers doctrine and/or executive\nprivilege.\xe2\x80\x9d (footnote omitted)); Louis Fisher, White House Aides Testifying Before Congress, 27 Presidential Stud. Q. 139, 151 (1997) (\xe2\x80\x9cThe White House is usually insulated\nfrom congressional inquiry because of a long-standing comity that exists between Congress and the presidency. By and large, each branch concedes a certain amount of autonomy to the other. Only in clear cases of abuse and obvious bad faith will Congress insist\nthat White House aides appear and give an account of their activities.\xe2\x80\x9d).\n\n40\n\n\x0cCongressional Oversight of the White House\n\nand do not intrude upon the exclusive constitutional prerogatives of the\nPresident.\nIn addition, because any congressional inquiry must respect the \xe2\x80\x9cautonomy\xe2\x80\x9d of the President\xe2\x80\x99s close advisers and \xe2\x80\x9cthe confidentiality of [their]\ncommunications,\xe2\x80\x9d Cheney, 542 U.S. at 385, a congressional committee\nseeking information about a statutory program should generally be directed first to the agency that administers the program in question. See\nMazars, 140 S. Ct. at 2035\xe2\x80\x9336 (explaining that \xe2\x80\x9c[o]ccasion[s] for constitutional confrontation between the two branches should be avoided whenever possible\xe2\x80\x9d and that \xe2\x80\x9cCongress may not rely on the President\xe2\x80\x99s information if other sources could reasonably provide Congress the\ninformation it needs\xe2\x80\x9d (internal quotation marks omitted)). This practice of\nexhaustion is rooted in separation of powers principles and the practical\nrealities of White House operations. It is crucial to the functioning of the\nExecutive Branch that White House staff members be able to perform\ntheir functions independently and effectively in service of the President.\nCongressional efforts to conduct extensive and time-consuming oversight\nof the White House could seriously interfere with that mission. When\ninformation Congress seeks is available from an agency, there is no reason to subject the President\xe2\x80\x99s advisers to potentially burdensome oversight requests, especially because aspects of their work are far more likely\nto implicate the presidential communications component of executive\nprivilege. 16\nAccordingly, when faced with a congressional request for information\nthat reasonably could be acquired from a department or agency, White\nHouse staff often advise the relevant committee that it should pursue its\nrequest there. Only if the committee has exhausted the possibility of\nobtaining the necessary information elsewhere, and has determined that\nthe necessary information may be obtained only from the White House,\nshould the committee direct its inquiry to the White House.\n16 Courts have credited these concerns in a series of cases discussing FOIA requests.\nThe D.C. Circuit, for instance, has declined to allow FOIA requests for the President\xe2\x80\x99s\nWhite House visitor logs\xe2\x80\x94even though the logs were held by the Secret Service, which is\nhoused within the Department of Homeland Security, rather than the White House\xe2\x80\x94\nbecause such requests \xe2\x80\x9ccould render FOIA a potentially serious congressional intrusion\ninto the conduct of the President\xe2\x80\x99s daily operations.\xe2\x80\x9d Judicial Watch, Inc. v. U.S. Secret\nServ., 726 F.3d at 226.\n\n41\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nWhen a committee\xe2\x80\x99s request to the White House concerns statutory\nfunctions, is within the committee\xe2\x80\x99s delegated oversight authority, and\nrests on a legitimate legislative purpose\xe2\x80\x94and after the committee has\nattempted to seek such information from any relevant agencies\xe2\x80\x94then the\nWhite House should consider how to accommodate the committee\xe2\x80\x99s needs\nin a manner consistent with the interests of the Executive Branch. See\nAT&T, 567 F.2d at 127. An important feature of the accommodation\nprocess is the dialogue that takes place between the committee and the\nWhite House to ensure that information requests are not \xe2\x80\x9cunnecessarily\nbroad.\xe2\x80\x9d Cheney, 542 U.S. at 390. Given the separation of powers principles at stake, these negotiations can help \xe2\x80\x9cnarrow the scope of possible\nconflict between the branches,\xe2\x80\x9d and ensure that a request is \xe2\x80\x9cno broader\nthan reasonably necessary to support Congress\xe2\x80\x99s legislative objective.\xe2\x80\x9d\nMazars, 140 S. Ct. at 2036.\nThe accommodation process has several rules of the road. First, the\nWhite House may properly demand that Congress\xe2\x80\x99s request be reasonably\nspecific. \xe2\x80\x9cThe specificity of [a committee\xe2\x80\x99s] request \xe2\x80\x98serves as an important safeguard against unnecessary intrusion into the operation of the\nOffice of the President.\xe2\x80\x99\xe2\x80\x9d Id. (quoting Cheney, 542 U.S. at 387). A committee should clearly explain the nature and scope of its request and\nprovide the White House with an opportunity to seek further explanation\nif the White House believes that the request is vague or otherwise ambiguous. Second, the \xe2\x80\x9cburdens imposed by a congressional [request] should\nbe carefully scrutinized, for they stem from a rival political branch that\nhas an ongoing relationship with the President and incentives to use\nsubpoenas [or other requests] for institutional advantage.\xe2\x80\x9d Id. Finally,\ngiven the relatively small staff and resources available in the White\nHouse, the committee must afford the White House sufficient time to\nrespond to its inquiry and flexibility in its manner and mode of response.\nIn light of these considerations, the White House typically seeks to accommodate congressional requests by providing written responses or oral\nbriefings on relevant activities or policies, supplemented sometimes by\nthe production of specific non-privileged documents. The White House\ndoes not ordinarily undertake the burden of reviewing and producing\ne-mails and other documents, which generally will consist primarily of\ndeliberative communications within the White House or between the\n42\n\n\x0cCongressional Oversight of the White House\n\nWhite House and other parts of the Executive Branch. Searching through\nand processing the thousands of presumptively privileged e-mails likely to\nbe responsive to a single request undoubtedly would divert the relatively\nsmall White House staff from its important work for the President. Further, the practice of providing written responses and oral briefings instead\nof e-mails and other internal communications helps preserve the President\xe2\x80\x99s ability to obtain full and frank advice from White House staff. This\nis critical to avoid chilling the candor of White House communications,\nsince \xe2\x80\x9c[t]he President himself must make decisions relying substantially,\nif not entirely, on the information and analysis supplied by advisers.\xe2\x80\x9d\nSealed Case, 121 F.3d at 750.\nSuch responses and briefings, in lieu of documents, are generally sufficient to satisfy the legitimate information needs of congressional committees. As noted above, because the purpose of oversight is to enable Congress to \xe2\x80\x9cexercise its legislative function advisedly and effectively,\xe2\x80\x9d\nMcGrain, 273 U.S. at 161, rarely do the \xe2\x80\x9clegislative judgments\xe2\x80\x9d informed\nby the oversight process depend on a \xe2\x80\x9cprecise reconstruction of past\nevents,\xe2\x80\x9d Senate Select Comm., 498 F.2d at 732; see Mazars, 140 S. Ct. at\n2036; Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *10.\nMoreover, \xe2\x80\x9c\xe2\x80\x98Congress will seldom have any legitimate legislative interest\nin knowing the precise predecisional positions and statements of particular executive branch officials.\xe2\x80\x99\xe2\x80\x9d Congressional Requests, 13 Op. O.L.C. at\n159 (citation omitted). Although in appropriate circumstances agencies\nmay offer the accommodation of access to deliberative materials (permitting them to be read but not copied, for example), such an accommodation\nwould be quite unusual for internal White House and intra-EOP deliberative communications because of the President\xe2\x80\x99s unique need for autonomy\nand heightened confidentiality interests.\nIV. Congressional Subpoenas to the White House\nWe next turn to consider the procedures by which congressional committees may issue and seek to enforce subpoenas. Drawing on the constitutional principles discussed in the prior Parts, we outline some of the\ngrounds on which the Executive Branch has commonly objected to the\nscope or enforceability of congressional subpoenas.\n43\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nA. Issuance and Enforcement of Subpoenas\nCongress\xe2\x80\x99s subpoena power is inherent in its investigative authority.\nSee Mazars, 140 S. Ct. at 2031; U.S. Servicemen\xe2\x80\x99s Fund, 421 U.S. at 504\n(observing that the issuance of subpoenas \xe2\x80\x9chas long been held to be a\nlegitimate use by Congress of its power to investigate\xe2\x80\x9d); Independent\nCounsel Act Requests, 10 Op. O.L.C. at 81\xe2\x80\x9382 (discussing congressional\nauthority to issue subpoenas). Because the authority to issue subpoenas is\nan inherent constitutional power, Congress does not need statutory authorization to issue a subpoena, but any \xe2\x80\x9cexercise of subpoena power must be\nauthorized by the relevant House.\xe2\x80\x9d Independent Counsel Act Requests, 10\nOp. O.L.C. at 82 (citing Reed v. Cty. Comm\xe2\x80\x99rs, 277 U.S. 376, 389 (1928);\nMcGrain, 273 U.S. at 158); see also Authority to Investigate for Impeachment, 44 Op. O.L.C. __, at *19 (\xe2\x80\x9ca committee\xe2\x80\x99s authority to compel\nthe production of documents and testimony depends entirely upon the\njurisdiction provided by the terms of the House\xe2\x80\x99s delegation\xe2\x80\x9d).\nThe Senate rules provide committees with the authority to subpoena\nwitnesses, \xe2\x80\x9ccorrespondence, books, papers, and documents,\xe2\x80\x9d Senate Rule\nXXVI(1), and similarly the rules of the House of Representatives authorize committees to subpoena \xe2\x80\x9cwitnesses and the production of such books,\nrecords, correspondence, memoranda, papers, and documents as [they]\nconsider[] necessary,\xe2\x80\x9d House Rule XI.2(m)(1)(B). The precise procedures\nfor issuing a subpoena vary depending on the rules of the chamber and\ncommittee involved. See Michael L. Koempel, Cong. Research Serv.,\nR44247, A Survey of House and Senate Committee Rules on Subpoenas 5\xe2\x80\x93\n16 (Jan. 29, 2018) (\xe2\x80\x9cSurvey of Committee Rules\xe2\x80\x9d) (detailing House and\nSenate chamber and committee rules on subpoena procedures). In the\nHouse, subpoenas generally may be issued by a committee \xe2\x80\x9conly when\nauthorized by the committee . . . , a majority being present,\xe2\x80\x9d but committees may delegate that power to \xe2\x80\x9cthe chair of the committee under such\nrules and under such limitations as the committee may prescribe.\xe2\x80\x9d House\nRule XI.2(m)(3)(A)(i); see also Survey of Committee Rules at 1 (\xe2\x80\x9c[m]ost\nHouse committees\xe2\x80\x9d have delegated subpoena power to their chairs). The\nSenate\xe2\x80\x99s standing rules delegate to each committee responsibility for\nestablishing subpoena procedures, and the procedures vary widely. See\nSenate Rule XXVI(2).\n44\n\n\x0cCongressional Oversight of the White House\n\nDuring Watergate and on several occasions more recently, congressional committees have turned to the federal courts seeking the enforcement\nof subpoenas against executive branch officials. This is a marked departure from long-standing practice: \xe2\x80\x9cHistorically, disputes over congressional demands for presidential documents have not ended up in court.\xe2\x80\x9d\nMazars, 140 S. Ct. at 2029; see Comm. on the Judiciary v. McGahn, 968\nF.3d 755, 777 (D.C. Cir. 2020) (en banc) (noting that \xe2\x80\x9cthere have been\nrelatively few\xe2\x80\x9d such cases). The Supreme Court has recognized that\n\xe2\x80\x9cCongress and the Executive have nonetheless managed for over two\ncenturies to resolve\xe2\x80\x9d privilege disputes without recourse to the Supreme\nCourt. Mazars, 140 S. Ct. at 2031. And although Mazars arose in an\nunusual posture that made it justiciable\xe2\x80\x94because the President in his\npersonal capacity sought to require his accountants to comply with their\nconfidentiality obligations\xe2\x80\x94that case was the first such dispute to reach\nthe Supreme Court. See id. (\xe2\x80\x9cwe have never considered a dispute over a\ncongressional subpoena for the President\xe2\x80\x99s records\xe2\x80\x9d).\nIn recent decades, the Department of Justice has maintained that a congressional suit to enforce a subpoena against the Executive Branch is not\njusticiable. 17 First, such a lawsuit typically alleges an abstract \xe2\x80\x9ctype of\ninstitutional injury (the diminution of legislative power)\xe2\x80\x9d that does not\nconstitute a \xe2\x80\x9c\xe2\x80\x98concrete and particularized\xe2\x80\x99\xe2\x80\x9d legal injury as required for\nArticle III standing\xe2\x80\x94a doctrine that applies \xe2\x80\x9cespecially rigorous[ly]\xe2\x80\x9d in\nseparation of powers cases. Raines v. Byrd, 521 U.S. 811, 819\xe2\x80\x9321 (1997)\n(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Second, as\nnoted above, such suits were nearly unprecedented as a historical matter,\ndespite the history of oversight disputes between Congress and the ExecuAlthough a congressional committee may not seek judicial enforcement of a subpoena against the Executive Branch, there are some cases, such as Mazars, where a suit\ninvolving a congressional subpoena would be justiciable. The dispute there no doubt\npresented \xe2\x80\x9csignificant separation of powers issues\xe2\x80\x9d and was in meaningful respects an\ninter-branch dispute, 140 S. Ct. at 2033\xe2\x80\x9334, but as noted, it involved the President\xe2\x80\x99s\nprivate right in his personal papers and the legal obligations owed to him by third parties\nthat were the actual recipients of the subpoenas, see id. at 2027\xe2\x80\x9328; see also Comm. on\nthe Judiciary v. McGahn, 951 F.3d 510, 531 (D.C. Cir. 2020) (\xe2\x80\x9cwe may adjudicate cases\nconcerning congressional subpoenas if they implicate the rights of private parties\xe2\x80\x9d),\nvacated on reh\xe2\x80\x99g en banc, 968 F.3d 755; United States v. Am. Tel. & Tel. Co., 551 F.2d\n384, 390\xe2\x80\x9391 (D.C. Cir. 1976) (holding that an executive branch suit to enjoin a third party\nfrom complying with a congressional subpoena was justiciable).\n17\n\n45\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\ntive Branch going back to the First Congress, and thus are not \xe2\x80\x9c\xe2\x80\x98traditionally thought to be capable of resolution through the judicial process.\xe2\x80\x99\xe2\x80\x9d Id.\nat 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)); see also Sprint\nCommc\xe2\x80\x99ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008) (\xe2\x80\x9chistory\nand tradition offer a meaningful guide to the types of cases that Article III\nempowers federal courts to consider\xe2\x80\x9d). It was not until 1974\xe2\x80\x94almost two\ncenturies after the Constitution\xe2\x80\x99s ratification\xe2\x80\x94that a committee of Congress appears to have first brought a civil action attempting to compel\nexecutive branch compliance with a subpoena. See Senate Select Comm.,\n498 F.2d 725. In that case, a statute purported to give the District Court\nfor the District of Columbia jurisdiction in \xe2\x80\x9cany civil action\xe2\x80\x9d brought by\nthe Senate committee investigating the Watergate scandal to \xe2\x80\x9cenforce and\nsecure a declaration concerning the validity of any subpoena.\xe2\x80\x9d Pub. L. No.\n93-190, \xc2\xa7 (a), 87 Stat. 736, 736 (1973); see also Senate Select Comm., 498\nF.2d at 727\xe2\x80\x9328 (explaining the jurisdiction conferred by the special law).\nThe court of appeals did not address whether the case was justiciable as a\nconstitutional matter. No committee of Congress brought a subpoenaenforcement action again until 2008, when House committees began filing\nsuch suits with some regularity. 18\nEarlier this year, a panel of the D.C. Circuit agreed with the Department and dismissed a congressional suit seeking enforcement of a subpoena to the former Counsel to the President. Comm. on the Judiciary v.\nMcGahn, 951 F.3d 510 (D.C. Cir. 2020), vacated on reh\xe2\x80\x99g en banc, 968\nF.3d 755. The panel concluded that \xe2\x80\x9cseparation-of-powers principles and\nhistorical practice\xe2\x80\x9d bar federal courts from exercising jurisdiction over\ncommittee suits \xe2\x80\x9cto enforce a congressional subpoena against the Executive Branch.\xe2\x80\x9d Id. at 522. The court reheard the case en banc and vacated\nthat ruling, holding that congressional committees could assert informational injuries no less than private parties because the constitutional\nseparation of powers erects no \xe2\x80\x9cstructural barrier to judicial involvement\nin informational disputes between the elected branches.\xe2\x80\x9d McGahn, 968\n18 See Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary v.\nMiers, No. 08-0409 (D.D.C. Mar. 10, 2008); Complaint, Comm. on Oversight & Gov\xe2\x80\x99t\nReform v. Holder, No. 12-1332 (D.D.C. Aug. 13, 2012); Complaint for Declaratory and\nInjunctive Relief, Comm. on the Judiciary v. McGahn, No. 19-2379 (D.D.C. Aug. 7,\n2019); Complaint for Declaratory and Injunctive Relief, Comm. on Oversight & Reform v.\nBarr, No. 19-3557 (D.D.C. Nov. 26, 2019).\n\n46\n\n\x0cCongressional Oversight of the White House\n\nF.3d at 768. But see id. at 783\xe2\x80\x9384 (Griffith, J., dissenting) (faulting the\nmajority for \xe2\x80\x9cits neglect of the interbranch nature of this dispute\xe2\x80\x9d). On\nremand, however, the panel held that congressional committees nonetheless lack a cause of action to seek judicial enforcement of a subpoena in\nthis context. McGahn, 973 F.3d 121 (D.C. Cir. 2020), reh\xe2\x80\x99g en banc\ngranted, No. 19-5331 (Oct. 15, 2020).\nAs the panel recognized, even if congressional suits to enforce subpoenas to the Executive Branch were justiciable, they fall outside the statutory jurisdiction of the federal courts and are unsupported by any cause of\naction. Although committees have relied upon the federal-question statute,\n28 U.S.C. \xc2\xa7 1331, as a basis for subject-matter jurisdiction, a more specific statute governs jurisdiction over congressional subpoena-enforcement\nsuits, id. \xc2\xa7 1365(a). This latter statute provides jurisdiction only for Senate actions, and more importantly excludes all actions to enforce subpoenas against executive branch officials who raise \xe2\x80\x9ca governmental privilege.\xe2\x80\x9d Id.; see McGahn, 951 F.3d at 522 (\xe2\x80\x9cThe obvious effect of section\n1365(a)\xe2\x80\x99s carve-out is to keep interbranch information disputes like this\none out of court.\xe2\x80\x9d). Indeed, the carve-out sought to accommodate the\nExecutive Branch\xe2\x80\x99s view, expressed by then-Assistant Attorney General\nScalia, that \xe2\x80\x9cthe Supreme Court should not and would not undertake to\nadjudicate the validity of the assertion of executive privilege against the\nCongress.\xe2\x80\x9d Executive Privilege\xe2\x80\x94Secrecy in Government: Hearings on S.\n2170, S. 2378, and S. 2420 Before the Subcomm. on Intergovernmental\nRelations of the S. Comm. on Gov\xe2\x80\x99t Operations, 94th Cong. 83 (1975)\n(statement of Assistant Attorney General Scalia); see also id. at 84\n(\xe2\x80\x9c[T]he courts are precisely not the forum in which this issue should be\nresolved.\xe2\x80\x9d).\nMoreover, in addition to lacking a statutory basis for jurisdiction,\nHouse committees lack any cause of action to enforce their subpoenas.\nThe statute that provides a cause of action to enforce Senate subpoenas,\n2 U.S.C. \xc2\xa7 288d, like section 1365(a), applies only to the Senate (and\nimposes various restrictions). That limitation (among other considerations) also makes clear, as the McGahn panel explained, that neither an\nimplied cause of action under Article I of the Constitution nor an equitable cause of action is available to the House in this context. See 973 F.3d\nat 123\xe2\x80\x9324; see also id. at 124\xe2\x80\x9325 (applying Supreme Court and circuit\nprecedent to reject the argument that the Declaratory Judgment Act, 28\n47\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nU.S.C. \xc2\xa7 2201, provides a cause of action). As the Supreme Court has\nrecognized, Congress\xe2\x80\x99s authority \xe2\x80\x9cto compel production of evidence\ndiffers widely from authority to invoke judicial power for that purpose.\xe2\x80\x9d\nReed, 277 U.S. at 389.\nIn the 1980s, this Office opined that these civil suits do lie within the\nconstitutional and statutory jurisdiction of the federal courts and are\nappropriate for judicial resolution. See Independent Counsel Act Requests,\n10 Op. O.L.C. at 87\xe2\x80\x9389; Prosecution for Contempt of Congress of an\nExecutive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 137 (1984) (\xe2\x80\x9cProsecution for Contempt of Congress\xe2\x80\x9d). 19 But those statements preceded significant decisions in which the\nSupreme Court clarified the requirements of Article III standing (most\nnotably Raines v. Byrd ) and amendments to 28 U.S.C. \xc2\xa7 1365(a) enacted\nin 1996 that confirm Congress\xe2\x80\x99s intent to bar inter-branch informational\ndisputes from federal court. See McGahn, 951 F.3d at 522 (discussing\n1996 legislative history). In fact, the author of one such OLC opinion,\nAssistant Attorney General Theodore Olson, argued while later serving as\nSolicitor General that these developments in the law undermined the\nDepartment\xe2\x80\x99s earlier view. See Defendant\xe2\x80\x99s Memorandum of Points &\nAuths. in Reply to Plaintiff \xe2\x80\x99s Opposition to Motion to Dismiss, Walker v.\nCheney, 230 F. Supp. 2d 51 (D.D.C. 2002) (No. 02-340), 2002 WL\n32388026 (relying on Raines to argue that a suit brought by the Comptroller General against executive branch officials was nonjusticiable). This\nOffice was consulted on that brief at the time, and we continue to think\nthat these developments in the law support the Department\xe2\x80\x99s current view\nthat Congress may not properly seek to enforce its subpoenas in federal\ncourt against executive branch officials.\nCongress has increasingly turned to civil enforcement suits as an alternative to traditional efforts to compel executive branch officials to provide information that Congress has requested. Historically, Congress has\nhad no shortage of ways to use its powers to press executive branch\nofficials to negotiate and to comply with appropriate informational deThe Department of Justice even attempted to bring an analogous suit against the\nHouse in 1983. See United States v. House of Representatives, 556 F. Supp. 150 (D.D.C.\n1983) (dismissing, on prudential grounds, a suit seeking a declaratory judgment that the\nAdministrator of the Environmental Protection Agency had lawfully withheld privileged\ndocuments from Congress).\n19\n\n48\n\n\x0cCongressional Oversight of the White House\n\nmands. Congress has the power of the purse, see U.S. Const. art. I, \xc2\xa7 9,\ncl. 7 (\xe2\x80\x9cNo Money shall be drawn from the Treasury, but in Consequence\nof Appropriations made by Law\xe2\x80\x9d), as well as the power to impeach and\nremove executive officers, see id. \xc2\xa7 2, cl. 5; id. \xc2\xa7 3, cls. 6\xe2\x80\x937, and the\nSenate\xe2\x80\x99s consent is necessary for the appointments of many senior executive officers, see id. art. II, \xc2\xa7 2, cl. 2. Congress also may press its case\ndirectly to the press and to the public at large. Those powers have frequently been deployed as a means of ensuring that the Executive Branch\nacts in accord with the \xe2\x80\x9ctradition of negotiation and compromise,\xe2\x80\x9d\nMazars, 140 S. Ct. at 2031, that has led to the successful resolution of\nmany oversight disputes.\nCongress also has other, more direct means of ensuring compliance\nwith subpoenas. One theoretical option would be for the House or Senate\nto invoke its inherent contempt powers and instruct the Sergeant-at-Arms\nto arrest an individual cited for contempt. See Jurney v. MacCracken, 294\nU.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821). However, Congress has not sought to arrest any person for contempt in more\nthan 80 years, see Independent Counsel Act Requests, 10 Op. O.L.C. at\n86, and has not sought to arrest an executive branch official in more than\na century, see McGahn, 968 F.3d at 776. Any effort by Congress to arrest\na White House official for noncompliance with a subpoena based upon a\nlegitimate separation of powers objection would, besides raising serious\npractical concerns, likely be unconstitutional. See Immunity of the Former\nCounsel, 43 Op. O.L.C. __, at *20\xe2\x80\x9321 (\xe2\x80\x9cThe constitutional separation of\npowers bars Congress from exercising its inherent contempt power in the\nface of a presidential assertion of executive privilege. An attempt to\nexercise inherent contempt powers in such a circumstance would be\nwithout precedent and would immeasurably burden the President\xe2\x80\x99s ability\nto assert the privilege and to carry out his constitutional functions.\xe2\x80\x9d (internal quotation marks omitted)). Congressional authority to arrest executive officials for actions properly taken to protect the prerogatives of the\nExecutive Branch is the type of \xe2\x80\x9cgreat substantive and independent power[]\xe2\x80\x9d that the Constitution would not have left to mere implication. Nat\xe2\x80\x99l\nFed\xe2\x80\x99n of Indep. Bus., 567 U.S. at 559 (opinion of Roberts, C.J.) (internal\nquotation marks omitted).\nTo complement its inherent contempt power, Congress in the midnineteenth century enacted a criminal statute to prohibit defiance of a\n49\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\ncongressional subpoena. See 2 U.S.C. \xc2\xa7 192. Under the statute, where a\nperson who is summoned to give testimony or to produce papers and\n\xe2\x80\x9cwillfully makes default, or who, having appeared, refuses to answer any\nquestion pertinent to the question under inquiry,\xe2\x80\x9d id., the President of the\nSenate or the Speaker of the House may refer to an \xe2\x80\x9cappropriate United\nStates attorney\xe2\x80\x9d for prosecution an individual who refuses to comply with\na subpoena. Id. \xc2\xa7 194. Congress has invoked the criminal contempt statute\nagainst private parties and executive branch officials as well.\nWe have long maintained, however, that the contempt statute does not\napply to executive branch officials who resist congressional subpoenas in\norder to protect the prerogatives of the Executive Branch. See Prosecution\nfor Contempt of Congress, 8 Op. O.L.C. at 129\xe2\x80\x9342. Moreover, given that\nthe prosecution authority is part of the executive power, Congress may\nonly refer an individual to a United States Attorney for a contempt prosecution; the Department of Justice ultimately has the prosecutorial discretion to decide whether a person should be indicted and prosecuted. See\nNixon, 418 U.S. at 693 (\xe2\x80\x9cthe Executive Branch has exclusive authority\nand absolute discretion to decide whether to prosecute a case\xe2\x80\x9d); Prosecution for Contempt of Congress, 8 Op. O.L.C. at 119\xe2\x80\x9320 (Department of\nJustice controls whether any contempt prosecution will be brought). In\nresponse to criminal referrals for two White House officials in 2008, for\ninstance, Attorney General Michael Mukasey notified the Speaker of the\nHouse that the Department of Justice would \xe2\x80\x9cnot bring the congressional\ncontempt citations before a grand jury or take any other action to prosecute,\xe2\x80\x9d because, in light of the President\xe2\x80\x99s assertions of executive privilege, the \xe2\x80\x9cnon-compliance by [the President\xe2\x80\x99s Chief of Staff ] and [the\nformer Counsel to the President] . . . did not constitute a crime.\xe2\x80\x9d Letter\nfor Nancy Pelosi, Speaker of the House, from Michael B. Mukasey,\nAttorney General at 2 (Feb. 29, 2008); see also Prosecution for Contempt\nof Congress, 8 Op. O.L.C. at 128 (contempt statute does not override the\nExecutive\xe2\x80\x99s prosecutorial discretion); Prosecutorial Discretion Regarding Citations for Contempt of Congress, 38 Op. O.L.C. 1, 2\xe2\x80\x933 (2014)\n(same).\nCongressional committees have generally sought enforcement of subpoenas against noncompliant witnesses only with an authorization from\nthe full House or Senate. See 2 U.S.C. \xc2\xa7 288b(b) (requiring \xe2\x80\x9cadoption of a\nresolution by the Senate\xe2\x80\x9d to authorize a Senate subpoena-enforcement\n50\n\n\x0cCongressional Oversight of the White House\n\nsuit); House Rule XI.2(m)(3)(C) (\xe2\x80\x9cCompliance with a subpoena issued by\na [House] committee or subcommittee . . . may be enforced only as authorized or directed by the House.\xe2\x80\x9d); Cong. Research Serv., RL30548,\nHearings in the U.S. Senate: A Guide for Preparation and Procedure 11\n(Mar. 18, 2010) (\xe2\x80\x9cCompliance with a [Senate committee] subpoena can be\nenforced only at the direction of the Senate.\xe2\x80\x9d); Independent Counsel Act\nRequests, 10 Op. O.L.C. at 82\xe2\x80\x9383 (discussing procedures for enforcing\nHouse subpoenas). 20 If the committee seeks to enforce the subpoena by\nholding the recipient in contempt, the committee (by a majority vote)\nmust seek such approval by \xe2\x80\x9creport[ing] a resolution of contempt to the\nfloor.\xe2\x80\x9d Louis Fisher, Cong. Research Serv., Congressional Investigations:\nSubpoenas and Contempt Power 7 (Apr. 2, 2003) (\xe2\x80\x9cSubpoenas and Contempt Power\xe2\x80\x9d); see also 2 U.S.C. \xc2\xa7 194 (requiring, for a contempt of\nCongress prosecution, that noncompliance with a subpoena be reported to\nthe House or Senate, or House or Senate leadership if Congress is not in\nsession). The full House or Senate must then \xe2\x80\x9cvote in support of the\ncontempt citation\xe2\x80\x9d before the contempt may be referred to the U.S. Attorney. Subpoenas and Contempt Power at 7; see also Wilson v. United\nStates, 369 F.2d 198, 203 (D.C. Cir. 1966) (explaining that a chamberwide vote provides \xe2\x80\x9ca \xe2\x80\x98check\xe2\x80\x99 on hasty action by a committee\xe2\x80\x9d and avoids\na situation where \xe2\x80\x9cthe allegedly insulted committee . . . provide[s] the sole\nlegislative determination whether to initiate proceedings to prosecute for\ncontempt\xe2\x80\x9d).\nCommittees of Congress have issued and likely will continue to issue\nsubpoenas for documents and testimony to White House personnel. Less\ncertain, however, is whether congressional entities have any authority to\nseek to compel compliance with such subpoenas in court. We believe that\ncongressional suits to enforce subpoenas to executive branch officials fall\noutside the constitutional and statutory jurisdiction of the federal courts;\nWhere recourse has been made to the courts, the House or Senate has typically authorized such an action by resolution. Todd Garvey, Cong. Research Serv., R45653,\nCongressional Subpoenas: Enforcing Executive Branch Compliance 5 (Mar. 27, 2019);\nsee, e.g., H.R. Res. 706, 112th Cong. (2012) (authorizing suit to enforce subpoena to\nAttorney General Holder). In the 116th Congress, however, the House broke from this\npractice by adopting a resolution enabling committees to file suit whenever authorized by\nthe Bipartisan Legal Advisory Group, H.R. Res. 430 (2019), which comprises the House\nSpeaker and majority and minority leaderships, House Rule II.8(b).\n20\n\n51\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nthe inherent contempt mechanism appears to have fallen into desuetude,\nand would present grave constitutional concerns if deployed against\nexecutive branch officials acting to protect the lawful prerogatives of the\nExecutive; and the Executive Branch has discretion to refuse to bring a\ncontempt of Congress criminal prosecution against one of its officials in\nsuch circumstances.\nB. Validity of Subpoenas Issued to the White House\nIt is the Executive Branch\xe2\x80\x99s settled policy to work to accommodate\ncongressional requests for information in a manner consistent with the\nExecutive\xe2\x80\x99s constitutional and statutory obligations. Historically, however, congressional subpoenas to executive branch officials have raised\na variety of separation of powers concerns. This section identifies and\ndiscusses a number of legal defects, several of which are discussed at\ngreater length above, that have commonly arisen in subpoenas involving the White House. These limitations on Congress\xe2\x80\x99s oversight powers\nare rooted in the separation of powers, and observing them serves to\nprevent Congress from \xe2\x80\x9caggrandiz[ing] itself at the [Executive\xe2\x80\x99s] expense.\xe2\x80\x9d Mazars, 140 S. Ct. at 2034.\nLack of Oversight Authority or Legitimate Legislative Purpose. As we\nhave discussed, all congressional oversight inquiries must be conducted in\nsupport of Congress\xe2\x80\x99s legislative authority under Article I of the Constitution. See id. at 2031\xe2\x80\x9332, 2035\xe2\x80\x9336; McGrain, 273 U.S. at 177. A subpoena\nthat seeks material or testimony on matters beyond Congress\xe2\x80\x99s legislative\nauthority, such as the exercise of a constitutional power vested exclusively in the Executive Branch, is beyond Congress\xe2\x80\x99s oversight authority. See\nBarenblatt, 360 U.S. at 111\xe2\x80\x9312.\nInfringement of Presidential Autonomy and Confidentiality. Congressional inquiries to the White House are constrained by \xe2\x80\x9cthe Executive\nBranch\xe2\x80\x99s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications.\xe2\x80\x9d Cheney, 542 U.S. at\n385. In certain circumstances, compliance with a congressional subpoena\ndirected at the White House may unduly impair the Executive\xe2\x80\x99s \xe2\x80\x9cability to\ndischarge its constitutional responsibilities.\xe2\x80\x9d Id. at 382. For example,\ncompliance with a subpoena that is excessively broad or intrusive might\nburden White House personnel to a degree that prevents them from effec52\n\n\x0cCongressional Oversight of the White House\n\ntively advising and assisting the President in the performance of his\nconstitutional duties. In that circumstance, it would be unconstitutional to\nenforce such an unduly broad subpoena. Of course, the accommodation\nprocess serves to ensure that congressional requests are tailored or narrowed so as to avoid infringement of presidential autonomy and confidentiality while satisfying Congress\xe2\x80\x99s legitimate needs for relevant information.\nImmunity of White House Officials from Compelled Testimony. Relatedly, the White House has consistently resisted subpoenas that seek to\ncompel the President\xe2\x80\x99s immediate advisers to testify before congressional\ncommittees. The White House has declined to make many of the President\xe2\x80\x99s immediate advisers available since the establishment of the EOP,\nand for almost 50 years, the Department of Justice has articulated this\nposition as a legal immunity\xe2\x80\x94that \xe2\x80\x9cthe President and his immediate\nadvisers are absolutely immune from testimonial compulsion by a Congressional committee on matters related to their official duties.\xe2\x80\x9d Immunity\nof the Former Counsel, 43 Op. O.L.C. __, at *3 (internal quotation marks\nomitted). 21 As Assistant Attorney General Rehnquist explained:\nThe President and his immediate advisers\xe2\x80\x94that is, those who customarily meet with the President on a regular or frequent basis\xe2\x80\x94\nshould be deemed absolutely immune from testimonial compulsion\nby a congressional committee. They not only may not be examined\nwith respect to their official duties, but they may not even be compelled to appear before a congressional committee.\nMemorandum for John D. Ehrlichman, Assistant to the President for\nDomestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to\nCompel Appearance or Testimony of \xe2\x80\x9cWhite House Staff \xe2\x80\x9d at 7 (Feb. 5,\n1971); see also Immunity of the Former Counsel, 43 Op. O.L.C. __, at *7\xe2\x80\x93\n21 Although this Office has spoken of this protection from compelled congressional\ntestimony in terms of \xe2\x80\x9cimmunity,\xe2\x80\x9d it may equally be viewed as a limitation on the breadth\nof Congress\xe2\x80\x99s implied power to compel testimony. Cf. New York v. United States, 505\nU.S. 144, 159 (1992) (\xe2\x80\x9cit makes no difference whether one views\xe2\x80\x9d a federalism question\nas turning upon \xe2\x80\x9cthe limits of the power delegated to the Federal Government under the\naffirmative provisions of the Constitution\xe2\x80\x9d or the scope of the \xe2\x80\x9csovereignty retained by\nthe States under the Tenth Amendment\xe2\x80\x9d).\n\n53\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\n11 (listing historical examples of immediate presidential advisers refusing\nto testify); Letter for Phillip E. Areeda, Counsel to the President, from\nAntonin Scalia, Assistant Attorney General, Office of Legal Counsel, att.\nat 6 (Sept. 25, 1974) (\xe2\x80\x9cat least since the Truman Administration,\xe2\x80\x9d presidential advisers \xe2\x80\x9chave appeared before congressional committees only\nwhere the inquiry related to their own private affairs or where they had\nreceived Presidential permission\xe2\x80\x9d).\nConsequently, in addition to invoking executive privilege over particular questions, the President \xe2\x80\x9ccan also direct them not even to appear\nbefore the committee.\xe2\x80\x9d Memorandum for Margaret McKenna, Deputy\nCounsel to the President, from John M. Harmon, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers app. at 7 (Aug. 11, 1977). For example, in 1981, Martin Anderson,\nPresident Reagan\xe2\x80\x99s assistant for policy development, refused to appear\nbefore a House appropriations subcommittee responsible for funding his\noffice. White House Counsel Fred F. Fielding explained that \xe2\x80\x9c[f ]rom the\nAdministration of George Washington to the present day, it has been a\ncentral tenet of the doctrine of separation of powers among the three\nbranches of the Federal Government that the President is not subject to\nquestioning as to the manner in which he formulates Executive policy\xe2\x80\x9d;\nthis principle \xe2\x80\x9cfounded in practicality as well as tradition and law\xe2\x80\x9d \xe2\x80\x9chas\nalso been applied to senior members of the President\xe2\x80\x99s personal staff, who\nparticipate in the deliberative process through which such policies are\ndeveloped.\xe2\x80\x9d Letter for Edward R. Roybal, Chairman, Subcommittee on\nTreasury, Postal Service, General Government, U.S. House of Representatives, from Fred F. Fielding, Counsel to the President (July 8, 1981),\nreprinted in H.R. Rep. No. 97-171, at 61 (1981). This testimonial immunity safeguards the constitutional separation of powers by protecting\nthe independence and autonomy of the Presidency from congressional\ninterference; it also \xe2\x80\x9cprotects the Executive Branch\xe2\x80\x99s strong interests in\nconfidentiality as well as the President\xe2\x80\x99s ability to obtain sound and\ncandid advice.\xe2\x80\x9d Immunity of the Former Counsel, 43 Op. O.L.C. __, at *5;\naccord Immunity of the Director of the Office of Political Strategy and\nOutreach from Congressional Subpoena, 38 Op. O.L.C. 5, 7\xe2\x80\x939 (2014).\nImmediate advisers to the President remain immune from compelled\ntestimony about their official duties in that capacity even after they leave\nthe White House. See Immunity of the Former Counsel, 43 Op. O.L.C. __,\n54\n\n\x0cCongressional Oversight of the White House\n\nat *15\xe2\x80\x9316 (explaining that \xe2\x80\x9cthe risk to the separation of powers and to the\nPresident\xe2\x80\x99s autonomy posed by a former adviser\xe2\x80\x99s testimony on official\nmatters continues after the conclusion of that adviser\xe2\x80\x99s tenure\xe2\x80\x9d). In determining whether a person qualifies for this immunity, we have considered\nthe day-to-day responsibilities of the adviser and the extent of his or her\nregular interaction with the President. Although most members of the\nWhite House staff do not qualify for immunity from compelled testimony,\nas a matter of policy the White House has generally opposed making any\nmembers of the White House staff available to testify, subject to the\naccommodation process.\nThe Executive Branch\xe2\x80\x99s position on immunity is well established by\nour precedent and practice, but the federal courts have looked less favorably on this position in the two cases in which the House sought to test it in\ncourt. The district courts to consider the question have held that senior\npresidential advisers do not, at least as a categorical matter, enjoy absolute immunity from compelled congressional testimony. See Comm. on\nthe Judiciary v. Miers, 558 F. Supp. 2d 53, 105\xe2\x80\x9306 (D.D.C. 2008); Comm.\non the Judiciary v. McGahn, 415 F. Supp. 3d 148, 200\xe2\x80\x9314 (D.D.C. 2019).\nBut the first of those decisions was stayed pending appeal, Comm. on the\nJudiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) (per curiam), and then\nsettled without enforcement of the subpoena, 2009 WL 3568649 (D.C.\nCir. Oct. 14, 2009). The second decision remains under review in the D.C.\nCircuit. In the latter case, two judges sitting on the D.C. Circuit panel\nsimilarly expressed doubt about the existence of this absolute immunity.\nSee McGahn, 951 F.3d at 538\xe2\x80\x9342 (Henderson, J., concurring); id. at 558\n(Rogers, J., dissenting). No precedential ruling has addressed the Executive Branch\xe2\x80\x99s position, however, which for decades has governed the\nExecutive Branch\xe2\x80\x99s negotiations with congressional committees seeking\nthe testimony of the President\xe2\x80\x99s immediate advisers.\nExclusion of Counsel from Depositions. Although historically Congress has sought to obtain testimony from executive branch officials by\nmeans of voluntary interviews and public hearings, committees in recent\nyears have made increasing use of depositions. See, e.g., H.R. Res. 6,\n116th Cong. \xc2\xa7 103(a)(1) (2019) (authorizing committee chairs to \xe2\x80\x9corder\nthe taking of depositions, including pursuant to subpoena, by a member or\ncounsel of such committee\xe2\x80\x9d). And certain committees, based on the current House rules governing depositions, have attempted to bar executive\n55\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nbranch witnesses from being accompanied by agency counsel at their\ndepositions, allowing only private counsel. 165 Cong. Rec. H1216 (daily\ned. Jan. 25, 2019) (\xe2\x80\x9ccounsel for government agencies . . . may not attend\xe2\x80\x9d); see also, e.g., H. Comm. on Oversight & Reform Rule 15(e),\n116th Cong. (2019) (counsel \xe2\x80\x9cfor agencies under investigation . . . may\nnot attend\xe2\x80\x9d). The Executive Branch has repeatedly resisted this practice\nand sought to maintain the \xe2\x80\x9c[l]ongstanding Executive Branch policy and\npractice\xe2\x80\x9d of agency counsel accompanying agency officials when they are\nquestioned by Congress. Letter for Henry Waxman, Chairman, Committee\non Oversight and Government Reform, U.S. House of Representatives,\nfrom Dinah Bear, General Counsel, Council on Environmental Quality at\n2 (Mar. 12, 2007).\nThis Office has advised that barring agency counsel from congressional\ndepositions is unconstitutional because it \xe2\x80\x9ccompromise[s] the President\xe2\x80\x99s\nconstitutional authority to control the disclosure of privileged information\nand to supervise the Executive Branch\xe2\x80\x99s communications with congressional entities.\xe2\x80\x9d Exclusion of Agency Counsel, 43 Op. O.L.C. __, at *2;\nsee also Authority of the Department of Health and Human Services to\nPay for Private Counsel to Represent an Employee Before Congressional\nCommittees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18, 2017) (noting that\nexcluding agency counsel may raise \xe2\x80\x9cconstitutional concerns\xe2\x80\x9d but reserving the question). This principle of course applies to depositions of White\nHouse officials. In Exclusion of Agency Counsel, for example, we advised\nthat a subpoena issued by the House Committee on Oversight and Reform\nto the former head of the White House Personnel Security Office was\ninvalid on this basis. See 43 Op. O.L.C. __, at *2, *6. Subpoenas requiring\nWhite House personnel to testify without agency counsel are therefore\nwithout legal effect and may not constitutionally be enforced, civilly or\ncriminally, against their recipients. See id. at *13\xe2\x80\x9314.\nFailure to Exhaust the Accommodation Process. The White House\noften has responded to congressional requests by insisting that committees\nengage in the accommodation process. See supra Part III.C. A congressional committee may not avoid its obligation to participate in this constitutionally mandated process by issuing or seeking to enforce a subpoena\nbefore the accommodation process has run its course. Thus, White House\nofficials have often cited a committee\xe2\x80\x99s failure to exhaust the accommodation process in objecting to a congressional subpoena.\n56\n\n\x0cCongressional Oversight of the White House\n\nThe accommodation process encompasses the exhaustion principle that\nwe have discussed above. The White House may object to a committee\xe2\x80\x99s\nrefusal to seek necessary information from the relevant executive branch\ndepartments and agencies before directing requests to the White House.\nSee Mazars, 140 S. Ct. at 2035\xe2\x80\x9336 (\xe2\x80\x9cCongress may not rely on the President\xe2\x80\x99s information if other sources could reasonably provide Congress the\ninformation it needs in light of its particular legislative objective.\xe2\x80\x9d).\nWhere a committee declines to honor its obligation to accommodate the\nlegitimate needs of the White House, the committee may not lawfully\nbegin the contempt process based upon good faith objections raised by\nWhite House officials.\nAssertion of Executive Privilege. An assertion of executive privilege\nauthorized by the President is a well-established ground for resisting a\ncongressional subpoena. See id. at 2032 (\xe2\x80\x9crecipients [of legislative subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as . . . governmental communications protected by executive privilege\xe2\x80\x9d). Executive\nprivilege consists of several components, which vary in scope and the\nextent of protection from disclosure. See supra Part III.B. As relevant to\nthe White House, a congressional committee may overcome an assertion\nof executive privilege based on the presidential communications component of the privilege only by \xe2\x80\x9cdemonstrat[ing] that the information sought\nis \xe2\x80\x98demonstrably critical to the responsible fulfillment of the Committee\xe2\x80\x99s\nfunctions.\xe2\x80\x99\xe2\x80\x9d Assertion of Executive Privilege for Documents Concerning\nConduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. 5, 6\n(1996) (Reno, Att\xe2\x80\x99y Gen.) (quoting Senate Select Comm., 498 F.2d at\n731). White House officials have an obligation to minimize the disclosure\nof privileged information and to protect the President\xe2\x80\x99s authority to determine when it would be in the public interest to provide such information as an accommodation.\nThis is not to say that the Executive Branch must or should claim executive privilege as a prerequisite to asserting any confidentiality interests\nin connection with congressional oversight. A formal assertion of executive privilege is a last resort in the sense that it is typically only needed\nwhen the Executive Branch has already asserted its confidentiality interests, but the accommodation process has failed to produce a resolution\nand the relevant committee moves to initiate enforcement action by voting\n57\n\n\x0c45 Op. O.L.C. __ (Jan. 8, 2021)\n\nto recommend that the recipient of the subpoena be cited for contempt of\nCongress. 22 However, a formal assertion of privilege does not preclude\nthe possibility of further negotiation and accommodation.\nUnreasonable Burden to Comply. White House officials also may decline to comply fully with the terms of a subpoena based on a concern that\ncompliance would be unreasonably burdensome or impossible. Compared\nto the departments and agencies, White House components have small\nstaffs who are primarily devoted to advising and assisting the President.\nExempt from FOIA, these White House components do not have trained\nstanding units devoted to document review and response work. Instead,\nthese White House components need to divert staff from their work for\nthe President to process congressional oversight requests. The White\nHouse is thus less likely than other parts of the Executive Branch to have\nthe resources available to comply fully with subpoenas that are broad in\nscope and have urgent return dates.\nThe federal courts\xe2\x80\x99 rules of procedure for both civil and criminal cases\nrelieve parties of the obligation to comply with a subpoena where the\nscope of the request and the return date make compliance unreasonably\nburdensome or impossible. See Fed. R. Civ. P. 45(d)(3)(A) (court \xe2\x80\x9cmust\nquash or modify a subpoena that . . . fails to allow a reasonable time to\ncomply\xe2\x80\x9d); Fed. R. Crim. P. 17(c)(2) (\xe2\x80\x9ccourt may quash or modify the\nsubpoena if compliance would be unreasonable or oppressive\xe2\x80\x9d). Further, a\nparty may not be held in contempt for noncompliance with a subpoena\nwhen compliance is an impossibility. See, e.g., In re Marc Rich & Co.,\n736 F.2d 864, 866 (2d Cir. 1984) (noting that the district court \xe2\x80\x9cmade it\nperfectly clear that [a contemnor] simply had to produce appropriate\naffidavits attesting to the impossibility of compliance and the [contempt]\njudgment would be lifted\xe2\x80\x9d). Similar principles apply in the context of\nWhen this course of events moves too quickly to allow for an adequate executive\nprivilege review, the President may make a \xe2\x80\x9cprotective\xe2\x80\x9d assertion of executive privilege\nover a class of documents in order \xe2\x80\x9cto ensure [his] ability to make a final decision, after\nconsultation with the Attorney General, as to which specific documents are deserving of a\nconclusive claim of executive privilege.\xe2\x80\x9d Protective Assertion of Executive Privilege\nRegarding White House Counsel\xe2\x80\x99s Office Documents, 20 Op. O.L.C. 1, 1 (1996) (Reno,\nAtt\xe2\x80\x99y Gen.); accord Protective Assertion of Executive Privilege Over Unredacted Mueller\nReport and Related Investigative Files, 43 Op. O.L.C. __ (May 8, 2019) (Barr, Att\xe2\x80\x99y\nGen.).\n22\n\n58\n\n\x0cCongressional Oversight of the White House\n\ncongressional subpoenas, particularly given that \xe2\x80\x9cCongress and the courts\nhave similar subpoena powers.\xe2\x80\x9d Nixon v. Sirica, 487 F.2d 700, 731 (D.C.\nCir. 1973) (en banc) (per curiam).\n*****\nIt has long been the Executive Branch\xe2\x80\x99s policy to \xe2\x80\x9ccomply with Congressional requests for information to the fullest extent consistent with the\nconstitutional and statutory obligations of the Executive Branch.\xe2\x80\x9d Reagan\nMemorandum at 1. But the critical functions that White House staff members play when advising and assisting the President in the performance of\nhis constitutional duties require that congressional oversight of the White\nHouse be conducted differently from oversight of the departments and\nagencies. The necessary approach has been described at length in this\nmemorandum opinion, but the core principle is that congressional committees and the White House must work together to accommodate congressional needs for information about the Executive Branch\xe2\x80\x99s discharge\nof statutory obligations in a manner that does not undermine the White\nHouse staff \xe2\x80\x99s ability to advise and assist the President.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n59\n\n\x0c'