A Constitutional Basis to Avoid Congressional Testimony

On Sept. 22, 2024, the House Foreign Affairs Committee issued a subpoena demanding that Secretary of State Antony Blinken testify on Sept. 24 regarding the U.S. withdrawal from Afghanistan. The committee had been trying to get Blinken to testify for months, and it was running out of time—the House of Representatives was going on recess by the end of September and would not return until after the 2024 elections. 

There was a problem, however; the secretary was committed all that day to meetings with foreign leaders at the United Nations. Indeed, he was committed to such diplomatic meetings the entire week. He could only offer dates for his testimony that were after the House recess, and the committee wouldn’t agree to wait. The negotiations over a hearing date were at an impasse.

Who would blink? Historical practice had been that agencies comply with congressional testimonial subpoenas in these circumstances, barring a last-minute compromise. This time, however, on Sept. 23, the State Department informed the committee that “[w]e have consulted with the Department of Justice and it has concluded that the Committee may not constitutionally compel the Secretary to appear on September 24, as doing so would prevent the Secretary from fulfilling the President’s directive to represent the United States at this major diplomatic event.” The committee did not follow up by seeking a contempt of Congress resolution or any other sanction or judicial enforcement.

This past December, the Justice Department’s Office of Legal Counsel (OLC) published the legal opinion it provided to the State Department on Sept. 23, providing the rationale for the Justice Department conclusion contained in State’s letter to the committee. The opinion broke new ground in executive branch separation of powers jurisprudence regarding the executive branch’s response to congressional oversight. It established that there may be circumstances in which a congressional subpoena seeking to compel an executive branch official to suspend his or her current activities—undertaken on behalf of the president—in order to appear at a congressional hearing lacks legal force and effect. It reasoned that compelling testimony in such circumstances unconstitutionally interferes with the president’s authority to discharge his exclusive constitutional responsibilities. 

Going forward, the executive branch will have a legal basis to challenge congressional testimony subpoenas. Of course, Congress might well dispute the legal position, and the courts have not yet had an occasion to consider it. Here, I summarize the rationale of the OLC opinion and then briefly consider how it might be applied by the executive branch when impasses develop in negotiations over the scheduling of congressional testimony.

The OLC Opinion’s Rationale

The subpoena issued by the House Foreign Affairs Committee summoned the secretary of state to appear and provide testimony at a hearing on a day when he was representing the United States at the once-a-year “high-level week” of the United Nations General Assembly. In particular, according to the OLC opinion, the secretary was scheduled to meet that day “with foreign leaders to address the President’s highest foreign policy priorities.” The opinion concluded that the subpoena “would prevent the President’s chief diplomat from fulfilling the President’s directive to represent the United States at a major diplomatic event,” thereby “unconstitutionally interfer[ing] with the President’s authority to conduct the Nation’s foreign affairs.” 

The opinion relied on two well-established constitutional principles, one general and one specific. The general principle was that a congressional committee may not conduct oversight over, or otherwise interfere with, the president’s exercise of his exclusive constitutional authority. The opinion relied principally on the Supreme Court’s opinion in Barenblatt v. United States, which stated that congressional oversight may not “supplant the Executive in what exclusively belongs to the Executive” and that Congress “must exercise its powers subject to the limitations placed by the Constitution on governmental action.” 

The specific principle was that the conduct of diplomacy is an exclusive presidential constitutional authority. The Supreme Court has long held that when it comes to “dealings with foreign nations,” the president is “the constitutional representative of the United States.” The OLC opinion cited the historical understanding of the diplomatic authority: “[S]ince the Nation’s earliest history, Presidents have understood that this responsibility carries with it the exclusive authority to send their ‘preferred agents to engage in a category of important diplomatic relations, and thereby determine the form and manner in which the Executive engages in diplomacy.’” OLC “has repeatedly explained that the President possesses the exclusive authority to determine the time, scope, and objectives of international negotiations or discussions, including the authority to determine the individuals who will represent the United States in those diplomatic exchanges.” 

Applying those established principles of constitutional law—at least as interpreted by past OLC opinions—to the subpoena to the secretary of state, the OLC opinion relied on the State Department’s explanation of why it was essential to the secretary’s diplomatic work for the president that he be in New York on Sept. 24, the date of the scheduled hearing: “[O]n that date, the Secretary, at the President’s direction, will, among other things, be preparing and joining the President for his address to the U.N. General Assembly; meeting, alongside the President, with the U.N. Secretary General; hosting the Global Coalition on Synthetic Drugs; and representing the United States in the U.N. Security Council debate on the conflict in Ukraine. This assembly of foreign leaders and counterparts is the only opportunity of its kind for the Secretary to participate in these important diplomatic engagements on significant and pressing matters.” 

According to the OLC opinion, abiding by his commitment to meet with foreign leaders and foreign ministers that day was critical to the secretary’s diplomatic work for the president. That day was part of a fully scheduled, highly publicized, annual one-week UN meeting; the schedule was dictated by the UN, and the week was so fully packed that the meetings on Sept. 24 could not be rescheduled. The State Department explained these circumstances to the committee at length in its Sept. 22 letter, and the committee must also have been aware of the event because of the media attention it received. 

The opinion concluded that “enforcing the Committee’s subpoena would plainly deprive the President of his exclusive constitutional prerogative to send his ‘preferred agents to engage in a category of important diplomatic relations.’ ... The consequences of this deprivation, moreover, would be significant: The Secretary is the President’s primary, most essential, and most visible representative in matters of diplomacy and foreign relations, and his absence could seriously detract from the United States’s diplomatic efforts at the U.N. General Assembly and U.N. Security Council.”

Future Application of the OLC Opinion

I worked on congressional oversight for 35 years at OLC, advising the White House Counsel’s Office, the Justice Department, and other executive branch agencies on how to respond to congressional requests for information in the form of documents or testimony. Negotiations over when agency heads would appear for testimony were very common and almost always were worked out without the issuance of a subpoena. But if a subpoena was issued and further negotiation failed, agencies had to provide the witness for testimony (relying on executive privilege to protect confidential information during the hearing or deposition). The OLC opinion has now made a new constitutional argument available—beyond an executive privilege defense—to justify noncompliance with the testimonial subpoena.

It should be acknowledged that the circumstances leading to the OLC opinion were quite unique and unusual: The committee would begin recess at the end of the month and would not reconvene until after the election; meanwhile, the secretary lacked the ability to offer available dates before the recess because of the fixed UN schedule. While the secretary did offer other dates, the committee insisted that his testimony take place before the recess. To apply the OLC opinion in other contexts, several elements would be required: first, strong congressional interference by taking an agency head away from his or her work for the president; second, a committee demand for a certain date of its choosing; and third, a lack of rescheduling options. 

It is unlikely that there will be many situations in which a committee is insisting on a particular date, the agency head cannot appear on that date without abandoning an important activity in connection with the president’s discharge of his exclusive constitutional authority, and the impact of that abandonment would interfere with the president’s authority. However, even if something like the secretary of state scenario does not occur again, agencies may be able to develop “interference with exclusive constitutional authority” arguments in other situations involving a standoff over a subpoenaed hearing date if the White House determines the agency head should not put aside his or her work for the president on exclusive constitutional functions. 

This argument is limited to the president’s exclusive constitutional authorities. A good starting place for identifying those authorities is a comprehensive 2021 OLC opinion entitled “Congressional Oversight of the White House.” It explains that “[t]he President’s exclusive powers include the powers to pardon, to sign or veto legislation, to nominate and appoint officers of the United States, and to remove officers and other officials” and that “[t]he President’s exclusive authorities also include his powers in the area of diplomacy and national defense, although in many cases those powers closely abut areas in which Congress may legislate.” It states that “[t]he Executive Branch has consistently asserted the President’s exclusive authority in these areas, and the Supreme Court has endorsed those principles.” Finally, it cautions that “[a]t the same time, Congress also has overlapping authority to legislate in matters touching upon foreign affairs and the national defense.” 

Another potential context for applying this “interference with presidential authority” position might be a subpoena seeking the attorney general’s testimony about a criminal investigation or prosecution. OLC’s White House oversight opinion did not identify presidential supervision of Justice Department investigations and prosecutions as such an authority. But the Supreme Court did so last year, holding in Trump v. United States that the president has “exclusive [constitutional] authority over the investigative and prosecutorial functions of the Justice Department and its officials …. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

The holding in Trump that presidential supervision of the Department of Justice is an exclusive constitutional function could have significant implications for oversight of the department, and indeed for oversight of all executive branch agencies. The Supreme Court held in Barenblatt that “[s]ince Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government.” Applying that limitation on the scope of congressional oversight to Justice Department oversight, in light of the exclusive constitutional function immunity recognized in Trump, could significantly curtail congressional oversight of the president’s interactions with the department, as well as his interaction with other agencies. In a moment of congressional reticence to push back against President Trump’s broad and novel assertions of executive power, such a result would be very concerning.