Testimonial Immunity Before Congress of the Former Counsel to the President
3
I.
Since the 1970s, this Office has consistently advised that “the President
and his immediate advisers are absolutely immune from testimonial
compulsion by a Congressional committee” on matters related to their
official duties. Memorandum for All Heads of Offices, Divisions, Bureaus
and Boards of the Department of Justice, from John M. Harmon, Acting
Assistant Attorney General, Office of Legal Counsel, Re: Executive
Privilege at 5 (May 23, 1977) (“Harmon Memorandum”); see also
Rehnquist Memorandum at 7 (“The President and his immediate advis-
ers—that is, those who customarily meet with the President on a regular
or frequent basis—should be deemed absolutely immune from testimonial
compulsion by a congressional committee.”). Indeed, this Office has
endorsed that legal principle on more than a dozen occasions, over the
course of the last eight presidential administrations.
1
1
See Immunity of the Assistant to the President, 38 Op. O.L.C. at *1; Letter for Fred F.
Fielding, Counsel to the President, from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, Office of Legal Counsel at 1–2 (Aug. 1, 2007) (“Bradbury Letter”);
Immunity of the Former Counsel, 31 Op. O.L.C. at 191; Reno Opinion, 23 Op. O.L.C.
at 4; Immunity of the Counsel to the President from Compelled Congressional Testimony,
20 Op. O.L.C. 308, 308 (1996) (“Immunity of the Counsel to the President
”); Letter for
Jack Brooks, Chairman, Committee on the Judiciary, U.S. House of Representatives, from
Nicholas E. Calio, Assistant to the President for Legislative Affairs at 1 (June 16, 1992)
(“Calio Letter”); Olson Memorandum at 2; Memorandum for Rudolph W. Giuliani,
Associate Attorney General, from Theodore B. Olson, Assistant Attorney General, Office
of Legal Counsel, Re: Congressional Demand for Deposition of Counsel to the President
Fred F. Fielding at 2 (July 23, 1982) (“Congressional Demand for Deposition of Coun-
sel
”); Memorandum for Fred F. Fielding, Counsel to the President, from Theodore B.
Olson, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Testimo-
ny by Presidential Assistants at 1 (Apr. 14, 1981); Memorandum for Margaret McKenna,
Deputy Counsel to the President, from John M. Harmon, Assistant Attorney General,
Office of Legal Counsel, Re: Dual-Purpose Presidential Advisers at 5 (Aug. 11, 1977);
Harmon Memorandum at 5; Letter to Phillip E. Areeda, Counsel to the President, from
Antonin Scalia, Assistant Attorney General, Office of Legal Counsel (Sept. 25, 1974)
(enclosing a memorandum, hereinafter “Scalia Memorandum”); Memorandum for John
W. Dean III, Counsel to the President, from Roger C. Cramton, Assistant Attorney
General, Office of Legal Counsel, Re: Availability of Executive Privilege Where Congres-
sional Committee Seeks Testimony of Former White House Official on Advice Given
President on Official Matters at 6 (Dec. 21, 1972) (“Cramton Memorandum”); Memoran-
dum for John W. Dean III, Counsel to the President, from Ralph E. Erickson, Assistant
Attorney General, Office of Legal Counsel, Re: Appearance of Presidential Assistant