b'Congressional Authority to Require State Courts to\nUse Certain Procedures in Products Liability Cases\nCongress may enact legislation that requires state courts to submit the determination o f the\nam ount o f punitive dam age awards in products liability cases to judges rather than juries\nif it also enacts federal law supplying the substantive law to be applied in such cases.\nLegislation that d o e s n ot enact a substantive Jaw o f products liability, but simply attempts\nto prescribe directly the state court procedures to be follow ed in products liability cases\narising under state law raises significant Tenth Am endm ent questions Given the current\nstate o f Tenth Am endm ent junsprudence, however, it is unlikely that a court w ould inval\xc2\xad\nidate such a statute.\nIn deciding w hether to propose legislation that w ould im pose procedural requirements on\nstate cou rt proceedings, the Department should give due consideration to the federalism\nco n ce rn s that w ould be raised, as required by section 5(a) o f Executive Order No. 12612.\n\nDecember 19, 1989\nM\n\nem orandum\n\nO p in io n\n\nO f f ic e\n\nof\n\nfor the\n\nD\n\neputy\n\nD ir e c t o r\n\nP o l ic y D e v e l o p m e n t\n\nThis memorandum responds to your request for our views as to\nwhether Congress may constitutionally require the states to submit the\ndetermination o f the amount o f punitive damages in products liability\ncases to the judge rather than the jury.1As outlined more fully below, we\nbelieve that Congress may require the state courts to follow this proce\xc2\xad\ndure if Congress enacts federal law that will supply the substantive law\no f products liability being applied in such cases. Tenth Amendment ques\xc2\xad\ntions may be raised if Congress does not enact any such substantive law,\nbut merely imposes the procedural requirement; given the current state\no f Tenth Amendment jurisprudence, however, we think it is unlikely that\na court would invalidate such a statute. Nevertheless, we believe that the\nDepartment, in deciding whether to propose such a statute, should give\ndue consideration to the federalism concerns that would be raised.\nIt is well established that Congress generally may require state courts\no f appropriate jurisdiction to entertain causes o f action arising under fed\xc2\xad\n1 This Office has previously advised the Office o f Policy Development that the imposition o f such a\nrequirement in the federal courts would not violate the Seventh Amendment. See Memorandum for\nStephen C Bransdorfer, Deputy Assistant Attorney General, Civil Division, from Lynda Guild Simpson,\nDeputy Assistant Attorney General, Office o f Legal Counsel (Sept. 29, 1989).\n\n372\n\n\x0ceral law, at least where there is an analogous state-created right enforce\xc2\xad\nable in state court. See Testa v. Katt, 330 U.S. 386 (1947); Second\nEmployers\xe2\x80\x99 Liability Cases, 223 U.S. 1 (1912); see generally Charles A.\nWright, The Law of Federal Courts \xc2\xa7 45 (4th ed. 1983). It is also clear that\nfederal law may properly govern certain procedural issues in state court\nsuits concerning federal causes of action where this is necessary to\nsecure the substantive federal right. See Norfolk & W. Ry. v. Liepelt, 444\nU.S. 490 (1980) (upon request o f party, jury in state court suit under FELA\nmust, as a matter o f federal law, be given cautionary instruction that dam\xc2\xad\nages award is not taxable and that taxes are not to be considered); Dice\nv. Akron, C. & Y. R.R., 342 U.S. 359 (1952) (state court procedural rule\nallowing judge to determine factual issue o f fraudulent releases was inap\xc2\xad\nplicable in FELA case in light o f the statutory right to trial by jury which\nwas \xe2\x80\x9cpart and parcel\xe2\x80\x9d o f the remedy afforded under the FELA); Brown v.\nWestern Ry., 338 U.S. 294, 298 (1949) (rejecting application, in FELA suit\nin state court, o f Georgia rule o f procedure that pleading allegations are\nconstrued \xe2\x80\x9cmost strongly against the pleader\xe2\x80\x9d; the Court concluded that\n\xe2\x80\x9c[s]trict local rules o f pleading cannot be used to impose unnecessary\nburdens upon rights o f recovery authorized by federal laws\xe2\x80\x9d); Bailey v.\nCentral Vt. Ry., 319 U.S. 350 (1943) (under FELA, Congress has provided\nfor right to jury).\nIn light o f these authorities, it seems clear that if Congress enacts a\nsubstantive federal law o f products liability, it may also establish rules o f\nprocedure, binding upon the states, that are necessary to effectuate the\nrights granted under the substantive law.2 In particular, Dice and Bailey\nsuggest that the allocation o f functions between judge and jury in apply\xc2\xad\ning federal substantive law may be settled by Congress as a matter o f fed\xc2\xad\neral law. Accordingly, we conclude that Congress may require state\ncourts to have judges determine the amount of punitive damages in order\nto effectuate the corresponding substantive rights with respect to prod\xc2\xad\nucts liability that Congress has created.\nDifferent questions are presented where Congress does not enact a\nsubstantive law of products liability to be applied by the states, but sim\xc2\xad\nply attempts to prescribe directly the state court procedures to be fol\xc2\xad\nlowed in products liability cases arising under state law. Such an action\nraises potential constitutional questions under the Tenth Amendment,3\nsince state court procedures in applying state law would appear to be an\n2 This is true regardless o f whether a state constitution provides a broader nght to jury trial in civil\ncases than does the Seventh Amendment to the federal constitution A constitutionally authonzed fed\xc2\xad\neral law may preempt conflicting provisions o f a state constitution. See U.S. Const, art. VI, cl. 2 (Laws o f\nthe Umted States enacted pursuant to the federal constitution \xe2\x80\x9cshall be the supreme Law o f the Land,\nand the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws o f any State\nto the Contrary notwithstanding.") (emphasis added).\n3The Tenth Amendment provides\nThe powers not delegated to the United States by the Constitution, nor prohibited by it to\nthe States, are reserved to the States respectively, or to the people.\n\n373\n\n\x0carea that is generally within a state\xe2\x80\x99s exclusive control. See Henry M. Hart,\nJr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489,\n508 (1954) (\xe2\x80\x9cThe general rule, bottomed deeply in belief in the impor\xc2\xad\ntance o f state control o f state judicial procedure, is that federal law takes\nthe state courts as it finds them.\xe2\x80\x9d); cf. Wolfe v. North Carolina, 364 U.S.\n177, 195 (1960) (\xe2\x80\x98\xe2\x80\x9cWithout any doubt it rests with each State to prescribe\nthe jurisdiction o f its appellate courts, the mode and time of invoking that\njurisdiction, and the rules of practice to be applied in its exercise ....\xe2\x80\x99\xe2\x80\x9d)\n(quoting John v. Paullin, 231 U.S. 583, 585 (1913)). There are no cases\ndirectly on point, and current Tenth Amendment jurisprudence cannot be\nsaid to be entirely settled. See Garcia v. San Antonio Metro. Transit\nAuth., 469 U.S. 528, 580 (1985) (Rehnquist, J., dissenting); id. at 589\n(O\xe2\x80\x99Connor, J., dissenting). Nevertheless, under existing case law, we\nthink it is unlikely that a court would invalidate a federal statute requir\xc2\xad\ning states to assign the determination o f the amount o f punitive damages\nto the judge rather than to the jury.\nIn Garcia, the Supreme Court overruled its decision in National\nLeague o f Cities v. Usery, 426 U.S. 833, 852 (1976), which had held that\nCongress\xe2\x80\x99 power under the Commerce Clause, when construed in light\no f Tenth Amendment principles, does not include the power to \xe2\x80\x9cdirectly\ndisplace the States\xe2\x80\x99 freedom to structure integral operations in areas of\ntraditional governmental functions.\xe2\x80\x9d Garcia expressly rejected as\nunworkable this \xe2\x80\x9ctraditional governmental functions\xe2\x80\x9d test, and instead\nheld that limitations on congressional power to regulate the states \xe2\x80\x9care\nmore properly protected by procedural safeguards inherent in the struc\xc2\xad\nture o f the federal system than by judicially created limitations on fed\xc2\xad\neral power.\xe2\x80\x9d 469 U.S. at 552; see also South Carolina v. Baker, 485 U.S.\n505, 512 (1988) (\xe2\x80\x9c Garcia holds that the [Tenth Amendment] limits [on\nCongress\xe2\x80\x99 authority to regulate state activities] are structural, not\nsubstantive \xe2\x80\x94 i.e., that States must find their protection from congres\xc2\xad\nsional regulation through the national political process, not through judi\xc2\xad\ncially defined spheres o f unregulable state activity.\xe2\x80\x9d).\nAccordingly, under existing case law, the only apparent ground for rais\xc2\xad\ning a Tenth Amendment challenge to congressional regulation of state\nactivity is to show that there were \xe2\x80\x9cextraordinary defects in the national\npolitical process\xe2\x80\x9d that frustrated the normal procedural safeguards inher\xc2\xad\nent in the federal system. Baker, 485 U.S. at 512; see also id. at 513\n(\xe2\x80\x9cWhere, as here, the national political process did not operate in a defec\xc2\xad\ntive manner, the Tenth Amendment is not implicated.\xe2\x80\x9d) In Baker, South\nCarolina argued that a procedural failure had occurred because the leg\xc2\xad\nislation at issue had been enacted by \xe2\x80\x98\xe2\x80\x9can uninformed Congress relying\nupon incomplete information.\xe2\x80\x99\xe2\x80\x9d Id. (citation omitted). The Court rejected\nthis invitation to \xe2\x80\x9csecond-guess the substantive basis for congressional\nlegislation,\xe2\x80\x9d and stated that \xe2\x80\x9c[i]t suffices to observe that South Carolina\nhas not even alleged that it was deprived o f any right to participate in the\n374\n\n\x0cnational political process or that it was singled out in a way that left it\npolitically isolated and powerless.\xe2\x80\x9d Id. at 512-13. Although it is almost\nimpossible to apply the Baker standard to legislation that has not yet\nbeen enacted, we nonetheless find it difficult to imagine circumstances\nunder which any state could successfully argue that the enactment o f\nnational legislation requiring the states to use certain procedures in prod\xc2\xad\nucts liability cases had been adopted pursuant to a process that left the\nstate \xe2\x80\x9cpolitically isolated and powerless.\xe2\x80\x9d\nIn any event, it is uncertain whether the proposed legislation would\nhave been held to violate the Tenth Amendment even under pre-Garcia\ncase law. In FERC v. Mississippi, 456 U.S. 742 (1982), the Court held that\nsince Congress could have preempted the states completely in the field\nof utility regulation, Congress did not violate the Tenth Amendment by\nconditioning continued state regulation in this field on state considera\xc2\xad\ntion of proposed federal regulatory standards. Id. at 761-70.4 Further\xc2\xad\nmore, the Court held that Congress could properly require the states to\nuse certain notice and comment procedures when acting on the proposed\nfederal standards. See id. at 771 (\xe2\x80\x9cIf Congress can require a state admin\xc2\xad\nistrative body to consider proposed regulations as a condition to its con\xc2\xad\ntinued involvement in a pre-emptible field \xe2\x80\x94 and we hold today that it\ncan \xe2\x80\x94 there is nothing unconstitutional about Congress\xe2\x80\x99 requiring certain\nprocedural minima as that body goes about undertaking its tasks.\xe2\x80\x9d).\nBecause Congress could rationally conclude that state products liabil\xc2\xad\nity suits have a substantial effect on interstate commerce, both with\nrespect to the goods at issue and with respect to the interstate business\no f insurance, Congress\xe2\x80\x99 power under the Commerce Clause is probably\nsufficient to allow it completely to preempt the states in the field of prod\xc2\xad\nucts liability. See Hodel v. Indiana, 452 U.S. 314, 323-24 (1981) (\xe2\x80\x9cA court\nmay invalidate legislation enacted under the Commerce Clause only if it\nis clear that there is no rational basis for a congressional finding that the\nregulated activity affects interstate commerce, or that there is no reason\xc2\xad\nable connection between the regulatory means selected and the asserted\nends.\xe2\x80\x9d); Hodel v. Virginia Surface Mining & Reclamation A ss\xe2\x80\x99n, 452\nU.S. 264, 277 (1981) (same); Harvey S. Perlman, Products Liability\nReform in Congress: An Issue of Federalism, 48 Ohio St. L.J. 503, 507\n(1987) (\xe2\x80\x9cUnder current interpretations of the commerce clause, Congress\npresumably has the authority to enact a preemptive product liability\nreform act.\xe2\x80\x9d); 132 Cong. Rec. 25,479-80 (1986) (reprinting report of\nLegislative Attorney, Congressional Research Service, on constitutionali\xc2\xad\nty o f federal tort reform). Accordingly, FERC v. Mississippi suggests that\nCongress may choose the lesser course o f allowing the states to contin\xc2\xad\n4 It should be noted that, to the extent that FERC v. Mississippi contains language offering greater\nTenth Amendment protection to states than that descnbed in Garcia, the Court in Baker stated that the\ncontinued vitality o f such language was \xe2\x80\x9cfar from clear.\xe2\x80\x9d Baker, 485 U S at 513\n\n375\n\n\x0cue to regulate this field, while conditioning their continued involvement\non state use o f certain federally prescribed procedures. We thus think it\nunlikely that a court would invalidate a federal statute requiring certain\nprocedures in state law products liability cases arising in state courts.\nNevertheless, we believe that the Department, in deciding whether to\nrecommend such legislation, should give due consideration to the feder\xc2\xad\nalism concerns that would be raised. See Exec. Order No. 12612, \xc2\xa7 5(a), 3\nC.F.R. 252, 255 (1987) (\xe2\x80\x9cExecutive departments and agencies shall not\nsubmit to the Congress legislation that would ... [d]irectly regulate the\nStates in ways that would interfere with functions essential to the States\xe2\x80\x99\nseparate and independent existence or operate to directly displace the\nStates\xe2\x80\x99 freedom to structure integral operations in areas o f traditional\ngovernmental functions.\xe2\x80\x9d).5\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n5 We do note, however, that such a proposal would not be wholly without precedent. See 42 U.S.C. \xc2\xa7\n9658(a) (altering state limitations period for certain tort claims brought under state law), Ayers v.\nTbumship o f Jackson, 106 N J 557, 582,525 A 2d 287, 300 (1987) (\xe2\x80\x9cCERCLA now pre-empts state statutes\no f limitation [under certain circumstances]\xe2\x80\x9d)\n\n376\n\n\x0c'


b'(Slip Opinion)\n\nTestimonial Immunity Before Congress\nof the Assistant to the President and\nSenior Counselor to the President\nThe Assistant to the President and Senior Counselor to the President is absolutely immune\nfrom compelled congressional testimony in her capacity as a senior adviser to the President.\nJuly 12, 2019\n\nLETTER OPINION FOR THE COUNSEL TO THE PRESIDENT\nOn June 26, 2019, the Committee on Oversight and Reform of the\nHouse of Representatives issued a subpoena seeking to compel Kellyanne\nConway, Assistant to the President and Senior Counselor to the President,\nto testify on July 15. The Committee knew that the Executive Branch has\nlong maintained that the President\xe2\x80\x99s senior advisers may not be compelled\nto appear before Congress, but the Committee issued the subpoena based\nupon its disagreement with that position. You have asked us to confirm\nthat testimonial immunity applies here. As explained below, we conclude\nthat Ms. Conway is absolutely immune from compelled congressional\ntestimony in her capacity as a senior adviser to the President.\nThe Committee seeks Ms. Conway\xe2\x80\x99s testimony concerning claims by\nthe Office of Special Counsel (\xe2\x80\x9cOSC\xe2\x80\x9d) that she violated the Hatch Act in\nconnection with media appearances and posts on her Twitter account.\nOSC has statutory authority to investigate violations of the Hatch Act,\nwhich bars federal employees from using their \xe2\x80\x9cofficial authority or\ninfluence for the purpose of interfering with or affecting the result of an\nelection.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7323(a)(1). On May 29, 2019, OSC provided your\noffice with a report concluding that Ms. Conway had \xe2\x80\x9cviolated the Hatch\nAct by using her official position to influence the 2018 midterm elections\nand 2020 presidential election through both media appearances and social\nmedia.\xe2\x80\x9d Report of Prohibited Political Activity Under the Hatch Act, OSC\nFile Nos. HA-19-0631, HA-19-3395, at 4 (May 30, 2019) (\xe2\x80\x9cOSC Report\xe2\x80\x9d). On June 11, you responded by detailing a number of \xe2\x80\x9cgrave legal,\nfactual, and procedural errors\xe2\x80\x9d in the report and requesting that it be\nwithdrawn. See Letter for Henry Kerner, Special Counsel, from Pat A.\nCipollone, Counsel to the President at 1 (June 11, 2019) (\xe2\x80\x9cJune 11 Cipollone Letter\xe2\x80\x9d). Two days later, OSC formally referred the report to the\nPresident, made the report public, and recommended that Ms. Conway be\ndismissed. The President did not accept OSC\xe2\x80\x99s recommendation.\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nOn June 13, the Committee on Oversight and Reform invited Ms. Conway to testify. You declined that invitation based on the well-settled\nprecedent, \xe2\x80\x9cconsistently adhered to by administrations of both political\nparties,\xe2\x80\x9d \xe2\x80\x9cfor members of the White House staff to decline invitations\nto testify before congressional committees.\xe2\x80\x9d Letter for Elijah E. Cummings, Chairman, Committee on Oversight and Reform, from Pat A.\nCipollone, Counsel to the President (June 24, 2019). The Committee\nresponded on June 26 by issuing the subpoena. Representative Elijah\nCummings, the Committee\xe2\x80\x99s Chairman, characterized as \xe2\x80\x9cbaseless\xe2\x80\x9d the\nExecutive Branch\xe2\x80\x99s position that the President\xe2\x80\x99s senior advisers are \xe2\x80\x9cabsolutely immune\xe2\x80\x9d from compelled congressional testimony, stating that\n\xe2\x80\x9cCongress has never accepted the claim that White House advisors are\nabsolutely immune.\xe2\x80\x9d Opening Statement, Hearing on \xe2\x80\x9cViolations of the\nHatch Act Under the Trump Administration\xe2\x80\x9d at 2 (June 26, 2019) (internal quotation marks omitted).\nThis Office recently addressed in detail the testimonial immunity of\nsenior presidential advisers in an opinion concerning the former Counsel\nto the President. Recognizing that the Executive Branch has invoked this\nimmunity for nearly 50 years, we reaffirmed that \xe2\x80\x9cCongress may not\nconstitutionally compel the President\xe2\x80\x99s senior advisers to testify about\ntheir official duties.\xe2\x80\x9d Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. __, *1 (May 20, 2019)\n(\xe2\x80\x9cImmunity of the Former Counsel \xe2\x80\x9d). This testimonial immunity is rooted\nin the separation of powers and derives from the President\xe2\x80\x99s status as the\nhead of a separate, co-equal branch of government. See id. at *3\xe2\x80\x937. Because the President\xe2\x80\x99s closest advisers serve as his alter egos, compelling\nthem to testify would undercut the \xe2\x80\x9cindependence and autonomy\xe2\x80\x9d of the\npresidency, id. at *4, and interfere directly with the President\xe2\x80\x99s ability to\nfaithfully discharge his responsibilities. Absent immunity, \xe2\x80\x9ccongressional\ncommittees could wield their compulsory power to attempt to supervise\nthe President\xe2\x80\x99s actions, or to harass those advisers in an effort to influence\ntheir conduct, retaliate for actions the committee disliked, or embarrass\nand weaken the President for partisan gain.\xe2\x80\x9d Immunity of the Assistant to\nthe President and Director of the Office of Political Strategy and Outreach From Congressional Subpoena, 38 Op. O.L.C. __, *3 (July 15,\n2014) (\xe2\x80\x9cImmunity of the Assistant to the President \xe2\x80\x9d). Congressional\nquestioning of the President\xe2\x80\x99s senior advisers would also undermine the\nindependence and candor of executive branch deliberations. See Immunity\nof the Former Counsel, 43 Op. O.L.C. at *5\xe2\x80\x937.\n2\n\n\x0cTestimonial Immunity Before Congress of the Senior Counselor to the President\n\nMs. Conway qualifies as a senior presidential adviser entitled to immunity. Our opinions have recognized that this immunity extends to\n\xe2\x80\x9cthose trusted members of the President\xe2\x80\x99s inner circle \xe2\x80\x98who customarily\nmeet with the President on a regular or frequent basis,\xe2\x80\x99 and upon whom\nthe President relies directly for candid and sound advice.\xe2\x80\x9d Immunity of the\nAssistant to the President, 38 Op. O.L.C. at *2 (quoting Memorandum for\nJohn D. Ehrlichman, Assistant to the President for Domestic Affairs, from\nWilliam H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Appearance or\nTestimony of \xe2\x80\x9cWhite House Staff \xe2\x80\x9d at 7 (Feb. 5, 1971)). After serving as\nthe President\xe2\x80\x99s campaign manager in 2016, Ms. Conway joined the Administration as one of his principal advisers. See, e.g., Michael D. Shear\n& Maggie Haberman, Trump Rewards His Campaign Manager With Role\nof Counselor, N.Y. Times, Dec. 23, 2016, at A16 (quoting the Presidentelect describing her as a \xe2\x80\x9cclose adviser\xe2\x80\x9d and \xe2\x80\x9cpart of my senior team\xe2\x80\x9d).\nMs. Conway remains among the President\xe2\x80\x99s \xe2\x80\x9cclosest\xe2\x80\x9d and \xe2\x80\x9cmost senior\xe2\x80\x9d\naides. See June 11 Cipollone Letter at 1, 3. We understand that she meets\nwith the President on a daily basis and on a wide range of issues, including communications matters and various areas of domestic policy. She\nmaintains an office in the West Wing, travels frequently with the President, and often speaks on television on his behalf. Ms. Conway participates in sensitive internal deliberations with the President and other top\nadvisers on critical issues. As a member of the President\xe2\x80\x99s inner circle,\nshe may not be compelled by a congressional committee to testify about\nmatters related to her official duties. See Immunity of the Former Counsel,\n43 Op. O.L.C. at *1, *21.\nThe subject of the subpoenaed testimony plainly concerns Ms. Conway\xe2\x80\x99s official duties. The OSC Report claims that her public statements\non television and social media amounted to the use of her \xe2\x80\x9cofficial authority or influence\xe2\x80\x9d to affect an election within the meaning of the Hatch\nAct, 5 U.S.C. \xc2\xa7 7323(a)(1). See OSC Report at 2, 6. The very premise of\nthe report is that Ms. Conway\xe2\x80\x99s public statements arose in the course of\nher official duties. Id. at 6 (claiming that she gave the interviews in question \xe2\x80\x9cin her official capacity,\xe2\x80\x9d \xe2\x80\x9c[c]onsistent with her duties in the Administration\xe2\x80\x9d); id. at 14 (claiming that \xe2\x80\x9cthe bulk of the\xe2\x80\x9d Twitter posts \xe2\x80\x9cwere\nrelated to her official duties\xe2\x80\x9d). Whether or not OSC was correct in believing that Ms. Conway used \xe2\x80\x9cofficial authority or influence\xe2\x80\x9d in violation of\nthe Hatch Act, there is no question that the Committee seeks Ms. Conway\xe2\x80\x99s testimony in connection with matters related to her White House\nduties.\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nAlthough Chairman Cummings has stated that the Committee wishes\nto question Ms. Conway about her public statements on television and\nsocial media\xe2\x80\x94rather than her confidential communications with the\nPresident\xe2\x80\x94that distinction does not bear upon the applicability and purpose of Ms. Conway\xe2\x80\x99s immunity. In contrast with the doctrine of executive privilege, testimonial immunity is based upon the role of the White\nHouse official, not the confidentiality of the particular communications at\nissue. See Immunity of the Former Counsel, 43 Op. O.L.C. at *4. While\nthe immunity in part serves the confidentiality interests of the President,\nit more fundamentally protects the independence and autonomy of the\noffice. See id. at *4, *17. Therefore, the Committee\xe2\x80\x99s interest in questioning Ms. Conway about public, rather than confidential, matters is not\nmaterial to the applicability of the immunity itself.\nNor does the Committee\xe2\x80\x99s stated interest in allegations concerning\npotential Hatch Act violations affect the applicability of testimonial\nimmunity. Congress frequently claims an interest in investigating allegations of official impropriety, yet the Executive Branch has never suggested such an interest negates testimonial immunity. To the contrary, the\nWhite House has repeatedly invoked immunity in such cases. See, e.g.,\nid. at *10 (discussing a White House Counsel\xe2\x80\x99s refusal to testify about\ncorruption allegations against a cabinet officer); id. at *11 (discussing a\nformer White House Counsel\xe2\x80\x99s refusal to testify about U.S. attorney\nresignations in 2007). And in 2014, this Office specifically advised that\ntestimonial immunity would apply in response to a subpoena issued by the\nCommittee concerning potential Hatch Act violations. See Immunity of the\nAssistant to the President, 38 Op. O.L.C. at *1, *12. Testimonial immunity would provide scant protection if it gave way whenever a congressional\ncommittee attempted to compel testimony based on claims of improper or\nunlawful activity by those advisers or other executive branch officials.\nWe conclude that Ms. Conway may not be compelled to testify before\nthe Committee on Oversight and Reform about the allegations in OSC\xe2\x80\x99s\nreport. The President may lawfully direct her not to appear on July 15,\nand she may not be penalized for following such a direction. See Immunity of the Former Counsel, 43 Op. O.L.C. at *19\xe2\x80\x9321.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n4\n\n\x0c'