OLC on Presidential Power, According to Trump’s Impeachment Defense

It’s over. Last week, the Senate officially acquitted President Trump of all charges. While new revelations about Trump’s call with Ukrainian President Volodymyr Zelenksy likely will emerge over the coming months (like in former National Security Adviser John Bolton’s upcoming book), the legal debate over when impeachment is appropriate will subside until this country is faced with another potential impeachment. Regardless of how the past months are remembered, one of the documents that will serve as a lasting artifact of impeachment is President Trump’s legal brief in the Senate trial: a 170-page trial memorandum in which the president’s attorneys laid out a sweeping impeachment defense.

In this piece, we endeavor to provide one final “cite-check” on the president’s legal defense. Rather than review all the citations in the trial memorandum, we focus narrowly on the memorandum’s references to 28 opinions issued by the Office of Legal Counsel (OLC). (Trump’s initial seven-page answer to the House summons didn’t reference OLC at all.) Of the 28 OLC opinions cited in the trial memorandum, eight were issued by the Trump administration, and 20 were issued by prior administrations. In focusing on these citations, we seek to determine whether Trump’s theory of executive power aligns with that of the rest of the executive branch––and, if not, where he stretches OLC precedent to make his case.

We found that the trial memorandum tends to cite to OLC opinions that discuss the scope of presidential power in the context of legislative oversight. But it’s not so clear that the reasoning in these opinions can be transferred to the impeachment context. After all, some opinions––particularly those concerning executive privilege––seem to rest on interpretations of constitutional law specific to Congress’s legislative, not impeachment, powers. Indeed, one opinion even explicitly distinguishes its reasoning in the legislative context from the impeachment context. But rather than grapple with these logical snags, the trial memorandum argues that the reasoning in the OLC opinions applies with even more force in the impeachment context.

Where we note that the citations are accurate and the theory is consistent, we do not mean to imply that the legal arguments hold the definitive answers to the constitutional questions underlying impeachment. After all, as the executive’s branch top legal shop, OLC has an institutional incentive across administrations to interpret the law in ways that enhance executive power. What’s more, the citations we analyze offer just a small window into OLC’s larger theory of presidential power: Many OLC opinions aren’t public, and OLC often provides private informal advice to the executive branch. And even among the OLC opinions that are publicly available, many don’t appear in Trump’s trial memorandum. (For example, one 1982 opinion that is not cited concludes that executive privilege will not be invoked to “shield documents which contain evidence of criminal or unethical conduct by agency official officials.”)

The frequency with which the trial memorandum relies on OLC opinions is striking. (Clinton’s trial memorandum, by contrast, does not cite OLC opinions at all.) Also striking is the distribution of OLC citations between the defense of the two articles: All 28 opinions cited appear in the portions of the memorandum refuting the charge of obstruction of Congress; none appears in the sections defending the president against Congress’s other charge, abuse of power. Over approximately 60 pages, Trump’s trial memorandum uses the OLC memos in support of five main arguments.

Argument #1: The House’s Subpoenas Lacked Adequate Authorization

First, Trump’s legal team argues that administration officials properly refused to comply with the House subpoenas on the advice of OLC because the subpoenas were “invalid.” They argue that no House committee can issue subpoenas pursuant to the House’s impeachment power without authorization from the whole House. And so, all subpoenas issued by individual committees after the House’s press conference on September 24 announcing an impeachment inquiry but prior to October 31—when the House formally authorized the impeachment inquiry under Resolution 660⁠—lacked legal force. In support of this claim, the trial memorandum cites seven OLC opinions (see appendix).

All the major opinions cited in support of this argument were issued by Trump’s OLC, and the citations accurately reflect the conclusions of the opinions. The principal support employed by the impeachment defense team for this argument, the Jan. 19 OLC opinion, does collect a number of precedents⁠—including Supreme Court cases and congressional statements—supporting the proposition that a congressional committee cannot exceed the authority delegated to it by the full House. But all those precedents discuss the exercise of subpoena power in terms of the House’s legislative authority, not its authority in an impeachment context.

Trump additionally cites two OLC opinions from 1985 and 1986 to argue that the executive branch can judge the “legitimacy” of a congressional investigation. But neither of those opinions reaches the central question: Are subpoenas authorized by individual committees invalid in an impeachment context?

Argument #2: Congress Cannot Compel Testimony of Senior Advisers

Trump’s second argument against the obstruction charge is that it’s the “longstanding position of the Executive branch” that Congress cannot compel testimony from the president’s senior advisers about their official duties. He cites 14 opinions, some dating back as early as 1977, in support of this proposition (see appendix). These opinions ground the immunity of senior officials in separation of powers concerns. For example, one opinion from 1999 notes how:

[A] senior advisor to the President functions as the President’s alter ego, assisting him on a daily basis in the formulation of executive policy and resolution of matters affecting the military, foreign affairs, and national security and other aspects of his discharge of his constitutional responsibilities. Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions. … [C]ompelling one of the President’s immediate advisers to testify on a matter of executive decision-making would also raise serious con­stitutional problems, no matter what the assertion of congressional need.

Trump’s trial memorandum emphasizes the last line––“no matter what the assertion of congressional need.” By quoting an opinion written in the context of legislative oversight, the legal team implies that immunity for senior officials necessarily extends to impeachment. While there is no OLC opinion before this administration discussing impeachment and immunity explicitly (likely in part because presidential impeachment is so rare), there is no express indication that the logic of the OLC opinions is cabined to legislative oversight alone. However, the trial memorandum attempts the same implied extension with executive privilege––and, in this, they stumble. Prior OLC opinions recognize that executive privilege is properly asserted where the legitimate needs of the executive branch outweigh the needs of Congress. Because executive privilege involves balancing––rather than absolutism––its proper use is circumstantial. In certain moments of everyday legislative oversight, congressional need is low. But, in impeachment, the balancing calculation shifts dramatically.

Indeed, after acknowledging that it “has been the position of the Executive branch that the President and his immediate advisors are absolutely immune from testimonial compulsion,” one 1977 opinion studiously avoids defining the full scope and reach of executive privilege, noting that “any generalizations” are “necessarily tentative and sketchy.” The final paragraph of the opinion underscores how impeachment may warrant more disclosure than in a legislative context:

These principles of nondisclosure may be relaxed in situations where the public interest would justify it. For example, materials properly subject to claims of Executive privilege may be disclosed to Congress in cases involving Senatorial confirmation of Presidential nominations or in impeachment proceedings. [Emphasis added.]

In this way, the OLC opinions reaffirm that assertions of executive privilege require a balance be struck between congressional need on the one hand and executive prerogative on the other––one that might shift between the legislative and impeachment contexts. And, perhaps unlike immunity for senior officials, executive privilege cannot be properly characterized as absolute.

Argument #3: Exclusion of Agency Counsel Is Inappropriate

Next, Trump’s legal team argues that the House committees improperly excluded agency counsel from accompanying executive branch witnesses compelled to testify. They argue that the presence of agency counsel is necessary to ensure the proper protection of privileged information belonging to the executive branch. Pursuant to House Committee Rule 15(e)––a seldom-used rule from the early 2000s––the House barred agency counsel from impeachment-inquiry depositions but did permit witnesses to be accompanied by private counsel. Trump’s legal team argues that, in keeping with OLC’s position that agency counsel cannot be excluded, it was therefore proper for the president to instruct those employees not to testify. They argue that prior administrations have similarly recognized “the important role of agency counsel in congressional inquiries.” They cite two OLC opinions, including one from 2017, which––in a footnote––notes the potential constitutional concerns arising from Congress’s exclusion of agency counsel:

You have not asked about, and we have not evaluated, the constitutional concerns that may be raised by the Committees’ prohibition on attendance by counsel representing the agency. We do note, however, that such a prohibition could potentially undermine the Executive Branch’s ability to protect its confidentiality interests in the course of the constitutionally mandated accommodation process, as well as the President’s constitutional authority to consider and assert executive privilege where appropriate.

This 2017 opinion flagging, but not definitely articulating a position on, potential constitutional concerns was issued during the Obama administration. It’s not until Trump’s tenure that OLC appears to have officially reached the question of whether barring agency counsel is “unconstitutional.” Interestingly, the same 2017 opinion suggests how to accommodate congressional demands that agency counsel be excluded, such as by providing private counsel where there is an explicit conflict of interest or the House demands it. In this way, the statement in Trump’s trial memorandum that “there is no legitimate reason” to deprive executive officials of agency counsel does not acknowledge that OLC has, up until very recently, recognized such requests and suggested the exact alternatives that Congress provided for deposition witnesses during the impeachment inquiry.

Argument #4: The Assertion of Privilege Does Not Amount to Obstruction

Trump’s legal team defends the president’s resistance to cooperate with the House’s investigation by noting that even if he “categorical[ly]” refused to cooperate with House demands, presidents throughout history have done the same. To support this assertion, the memorandum cites a 1982 OLC opinion tracing the history of refusals by executive branch officials to congressional requests for information. Yet, the refusals that Trump references––by Presidents Washington, Truman, Coolidge and Jackson––were all in response to legislative oversight, not impeachment. And, in a section of the opinion not cited, OLC recounts an episode in which President Theodore Roosevelt refused to turn over information to Congress. Roosevelt asserted that Congress did not have the power to request the documents and stated “that the only way the Senate could get them was through his impeachment.”

Trump’s legal team also claims that asserting executive privilege in response to congressional subpoenas cannot be labeled as “obstruction.” In support of this claim, they rely heavily on seven OLC opinions. They argue that impeachment is inappropriate because Congress has other tools at its disposal to resolve disputes over privilege. For example, the trial memorandum suggests that Congress could decide to hold executive officials in contempt or sue in court to obtain an injunction. (Notably, Trump’s Department of Justice has said that suits to enforce congressional subpoenas are nonjusticiable.) But regardless of whether Congress has alternative remedies at its disposal, one 1984 OLC opinion suggests that impeachment is an available remedy to executive branch stonewalling. It describes how senators frustrated by President Cleveland’s refusal to provide documents to Congress concerning the dismissal of a U.S. attorney believed they had “no remedy” under the law, save the “the ultimate sanction of impeachment.”

Argument #5: The Allegations Against the President, Even If True, Do Not Meet the High Standard Required for Removal

In the trial memorandum, Trump’s legal team argues that a president must engage in “especially egregious conduct” to warrant impeachment and that the allegations against President Trump, even if true, do not meet this high standard. In support of their claim, the attorneys emphasize the serious implications of removing a president. They write in the memorandum, “[B]ecause the President himself is vested with the authority of an entire branch of the federal government, his removal would cause extraordinary disruption to the Nation.” Then, quoting the OLC opinion from 1973 that outlines the Justice Department’s position that a sitting president cannot be indicted, Trump’s legal team suggests that OLC believes that a Senate removal of the president “would be politically and constitutionally a traumatic event.” Technically, the team correctly quotes the opinion they cite. But, in context, the quote reveals that OLC held a different view of impeachment than that articulated in the trial memorandum. Rather than railing against the undue instability of a Senate trial and subsequent removal, the OLC opinion contrasts it with a jury determination of a sitting president’s criminal liability. In doing so, OLC repeatedly emphasizes that the Senate is the best institution to supervise and check the president. Placing the extracted quote in context makes this clear:

Because only the President can receive and continuously discharge the popular mandate expressed quadrennially in the presidential election, an interruption would be politically and constitutionally a traumatic event. The decision to terminate this mandate, therefore, is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution.

In this way, the trial memorandum misrepresents OLC’s view of impeachment.

***

Trump’s trial memorandum marshals a large body of OLC opinions to refute claims that he obstructed Congress’s inquiry into his call with President Zelensky. While many of these OLC opinions are recently issued––especially those related to the validity of congressional subpoenas––others aren’t. And while OLC has an incentive, regardless of administration, to defend the executive’s interests where they conflict with those of Congress, Trump stretches some of these precedents to make his case. In particular, he obscures the unique nature of impeachment––and the distinct separation-of-powers issues it raises––by conflating it with general congressional oversight.

APPENDIX OF CITED OLC OPINIONS

Argument #1: The House’s Subpoenas Lacked Adequate Authorization

• House Committees’ Authority to Investigate for Impeachment (Jan. 19, 2020) (Appendix C) (concluding that the House of Representatives must authorize an impeachment inquiry for the subpoenas to have legal force)
• Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. (Nov. 1, 2019) (“[T]he House had not vested any committee in the current Congress with the authority to issue subpoenas in connection with an impeachment inquiry. As a result, subpoenas issued before that date purporting to be ‘pursuant to’ an impeachment inquiry were not properly authorized.”)
• Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f), 43 Op. O.L.C. (June 13, 2019) (finding that congressional inquiries must be related to a legitimate task of Congress and that the executive does not need to presume a legitimate legislative purpose exists)
• Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. (1986) (arguing that, upon receiving a congressional subpoenas, a threshold inquiry should be made about whether Congress has a legitimate legislative purpose and that, in the context of the independent counsel, a “disagreement with the prosecutorial discretion regarding appointment of an independent counsel for a particular individual” did not constitute such a purpose)
• Scope of Congressional Oversight and Investigative Power with Respect to the Executive Branch, 9 Op. O.L.C. (1985) (describing the reach of the House’s investigative power in the legislative context)
• Assertion of Executive Privilege for Documents Concerning Conduct of Foreign Affairs with Respect to Haiti, 20 Op. O.L.C. (1996) (concluding that executive privilege may be asserted over documents concerning the administration’s diplomatic communications with and internal communications about Haiti)
• Memorandum for Elliot Richardson, Attorney General, from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Presidential Immunity from Coercive Congressional Demands for Information at 22-23 (July 24, 1973) (quoting Polk’s letter) (not publicly available)

Argument #2: Congress Cannot Compel Testimony of Senior Advisers

• Letter from Steven A. Engel, Assistant Attorney General, to Pat A. Cipollone, Counsel to the President (Nov. 7, 2019) (affirming that Acting White House Chief of Staff Mulvaney is “absolutely immune from compelled congressional testimony in his capacity as a senior adviser to the President” and that this immunity applies equally in an impeachment inquiry as it does in a legislative oversight inquiry)
• Immunity of the Former Counsel to the President from Compelled Congressional Testimony, 31 Op. O.L.C. (2007) (finding that the “same separation of powers principles that protect a President from compelled congressional testimony” apply equally to senior presidential advisers)
• Letter for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel (Nov. 3, 2019) (Appendix D) (concluding that the senior advisers were immune from subpoenas issued to them, particularly because their duties concern national security)
• Letter Opinions from the Office of Legal Counsel to Counsel to the President Regarding Absolute Immunity of the Acting Chief of Staff, Legal Advisor to the National Security Council, and Deputy National Security Advisor (Oct. 25, 2019) (Appendix D) (same)
• Immunity of the Counsel to the President from Compelled Congressional Testimony, 20 Op. O.L.C. (1996) (reaffirming that “it is the longstanding position of the executive branch that ‘the President and his immediate advisors are absolutely immune from testimonial compulsion by a Congressional committee’”)
• Testimonial Immunity Before Congress of the Former Counsel to the President, 43 Op. O.L.C. (May 20, 2019) (“[W]e provide the same answer that the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”)
• Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach from Congressional Subpoena, 38 Op. O.L.C. (July 15, 2014) (“[T]he executive branch’s longstanding position, reaffirmed by numerous administrations of both political parties, is that the president’s immediate advisors are absolutely immune from congressional testimonial process.”)
• Assertion of Executive Privilege with Respect to Clemency Decision, 23 Op. O.L.C. (1999) (“Executive privilege is assertable in response to a congressional subpoena seeking testimony by the counsel concerning performance of official duties on the basis that the counsel serves as an immediate advisor to the president and is therefore immune from compelled congressional testimony.”)
• Memorandum for John D. Ehrlichman, Assistant to the President for Domestic Affairs, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Power of Congressional Committee to Compel Appearance or Testimony of “White House Staff” (Feb. 5, 1971) (not publicly available)
• Memorandum for Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Congressional Testimony by Presidential Assistants (Apr. 14, 1981) (“[C]onsistent view that immediate advisors to the president—that is, those who customarily meet with the president on a regular or frequent basis—are absolutely immune from any obligation to testify before a congressional committee.”)
• 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 (May 23, 1977)
• Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation Into Operation Fast and Furious, 36 Op. O.L.C. (June 19, 2012) (concluding that executive privilege should be asserted over documents concerning ongoing criminal investigations and prosecutions)
• Assertion of Executive Privilege Over Communications Regarding EPA’s Ozone Air Quality Standards and California’s Greenhouse Gas Waiver Request, 32 Op. O.L.C. (June 19, 2008) (concluding that executive privilege may be asserted over communications between the Executive Office of the President and the Environmental Protection Agency)

Argument #3: Exclusion of Agency Counsel Is Inappropriate

• Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. (Nov. 1, 2019) (“[T]he congressional committee participating in the impeachment investigation authorized by the resolution may not validly require executive branch witnesses to appear without the assistance of agency counsel in connection with such depositions....a subpoena purporting to require a witness to appear without such assistance would be invalid and not subject to civil or criminal enforcement.” The opinion goes on to note that the exclusion of agency counsel is not more appropriate in an impeachment context than it is in a legislative context.)
• Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. (May 23, 2019) (arguing that Congress may not compel an executive branch witness to appear without agency counsel, under Committee Rule 15(e) for two reasons: (a) it impairs the president’s ability to control privileged information and (b) it undermines the president’s ability to supervise the executive branch’s interactions with Congress and that to enforce a subpoena while barring agency counsel would be “unconstitutional”)
• Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee Before Congressional Committees, 41 Op. O.L.C. (Jan. 18, 2017) (discussing the circumstances under which private counsel will be provided to executive officials compelled to testify)

Argument #4: The Assertion of Privilege Does Not Amount to Obstruction

• Whether the Department of Justice May Prosecute White House Officials for Contempt of Congress, 32 Op. O.L.C. (2008) (finding that the Department of Justice may not bring before a grand jury criminal contempt or take any other prosecutorial action with respect to current or former White House officials who decline to provide documents or testimony based on executive privilege)
• Authority of Agency Officials to Prohibit Employees from Providing Information to Congress, 28 Op. O.L.C. (2004) (affirming that the executive branch can supervise its employees’ disclosure of classified information, despite a Congressional Research Service report holding to the contrary)
• Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. (1995) (acknowledging a prior 1984 opinion that held that Congress’s criminal contempt statute does not apply to the president or presidential subordinates as part of a larger discussion of whether 28 U.S.C. § 458 applies to the president’s appointment of federal judgements)
• Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. (1989) (noting that a congressional committee may hold executive branch officials in contempt of Congress if it is unsatisfied with the response to requests for information)
• History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, Part I—Presidential Invocations of Executive Privilege Vis-a-Vis Congress, 6 Op. O.L.C. (1982) (describing instances throughout history in which executive branch officials refused to disclose information or produce documents requested by Congress)
• Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op. O.L.C. (Nov. 1, 2019) (“Congressional subpoenas that purport to require executive branch witnesses to appear without agency counsel in these circumstances are legally invalid and are not subject to civil or criminal enforcement” [emphasis added].)
• Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. (1984) (discussing how a U.S. attorney is not required to refer congressional contempt citations to a grand jury to otherwise prosecute an executive branch official invoking executive privilege)

Argument #5: The Allegations Against the President, Even If True, Do Not Meet the High Standard for Removal

• Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office (Sept. 24, 1973)