With all of the ongoing battles between Capitol Hill, the White House and the Justice Department, it’s worth keeping in mind the different ways the administration and witnesses have sought to prevent or limit congressional testimony.
White House counsel Pat Cippollone wrote Tuesday to House Democrats on the House Judiciary Committee that President Donald Trump’s long-time confidante Hope Hicks would not answer questions because she is “absolutely immune” from being compelled to talk about her time as a senior adviser to the President. During her interview on Wednesday, Hicks repeatedly declined to answer questions about her time in the White House.
It’s another flashpoint in an ongoing battle between Democrats seeking to investigate Trump and the White House, and Trump’s advisers have made multiple legal arguments in order to stop those investigations in their tracks. Here’s a basic rundown on what some of those arguments are and what they mean.
What is “absolute immunity”?
The purpose of immunity for senior presidential advisers is to shield them from testifying about matters related to their official responsibilities. The doctrine has been justified by the Justice Department as a matter of separation of powers. On several different occasions – under both Democratic and Republican administrations – the Justice Department has raised immunity as a justification to block compelled testimony of current and former presidential advisers.
For instance, in 2014, the Obama administration’s Office of Legal Counsel wrote a memo that a senior White House adviser subpoenaed by the House Oversight Committee did not have to testify, arguing that “subjecting an immediate presidential adviser to Congress’s subpoena power would threaten the President’s autonomy and his ability to receive sound and candid advice.”
But what have courts said?
The issue does not get litigated frequently and the Supreme Court has never directly addressed the validity of an immunity claim, so the matter is far from settled law.
At least one court that has looked at it rejected an immunity claim made by the Bush White House, which was seeking to prevent former White House counsel Harriet Miers from testifying.
Nevertheless, the Justice Department does not view that one case as binding because it was ultimately settled before any appellate decision on its merits, as explained in the Justice Department’s May 2019 memo on the subject.
How does immunity relate to executive privilege?
The best way to think of immunity is an offshoot under the larger umbrella doctrine of executive privilege.
Executive privilege is an implied presidential power, generally recognized by the courts, that permits the president to withhold information from Congress. The idea is the president must be able to receive candid advice from advisers, and also safeguard the disclosure of information that might threaten national security.
Executive privilege is generally divided into two main types (though others have been asserted): 1) presidential communications privilege and 2) deliberative process privilege.
Post-Watergate cases have established that the president can invoke the privilege when asked to produce documents or other information that arguably reflect presidential decision-making and other deliberations that the president believes should remain confidential. However, the courts have viewed the privilege as qualified, and can be overcome by an adequate showing of need – where that balance is stuck is always a challenging call.
Doesn’t Congress grant “immunity” in some cases too?
Though rarely used, Congress has the power under federal law to compel witness testimony by granting immunity. This gets messy for the Justice Department because it prevents a prosecutor from later using such hearing testimony as evidence at trial against an immunized individual.
The statute requires two-thirds of the members of a committee vote to grant it. It then goes to a federal judge, who has no discretion to deny an immunity grant as long as the procedural requirements are met. The Justice Department also has no veto power, but the attorney general is supposed to be put on notice. The attorney general cannot stop it, though the Justice Department can ask for 20-day grace period.
