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Rep. Adam Schiff, D-Calif., center, speaks with members of the media Monday after former deputy national security adviser Charles Kupperman signaled that he would not appear as scheduled to testify as part of the House impeachment inquiry into President Donald Trump. Standing with Schiff are, from left, Carolyn Maloney, D-N.Y., Rep. Jamie Raskin, D-Md., and Rep. Eric Swalwell, D-Calif. (AP photo)

Commentary: ‘Absolute immunity’ argument overreaches

According to the White House, senior advisers who work closely with the president have “absolute immunity” from congressional subpoena on matters related to their official duties.

That’s what the Trump administration is telling former deputy national security adviser Charles Kupperman — and almost certainly telling former national security adviser John Bolton.

Kupperman, caught between a House subpoena and a presidential directive not to testify, went to the federal district court in Washington, D.C., on Friday to ask what he should do. To answer him, the court will likely have to rule on whether the claim of absolute immunity holds water or not.

As a matter of constitutional law, the idea of absolute immunity overreaches. It has never been formally recognized by a court. Yet every administration in the last 50 years, Democratic and Republican, has asserted some version of it, and the arguments for it aren’t preposterous or unreasonable.

Absolute immunity goes much further than executive privilege. The idea of executive privilege is that the executive branch should be able to withhold information on specific confidential communications. In practice, that means senior White House advisers could appear to testify, and could then hold back certain information they deem privileged.

In contrast, the claim of absolute immunity is that some senior White House staff who work directly with the president cannot be subjected to subpoena at all. If Congress calls, the answer is no. The subject of the subpoena doesn’t matter; that’s what puts the “absolute” in absolute immunity.

The origins of this theory lie in the presidency of Richard Nixon. The first document to put the idea forward was an opinion produced by the Office of Legal Counsel in Nixon’s Department of Justice. At the time, the assistant attorney general in charge of the office was William Rehnquist, who would go on to be named a Supreme Court justice by Nixon and, later, be nominated to Chief Justice by Ronald Reagan.

Rehnquist’s opinion started with the proposition that because the president is a separate branch of government from Congress, he can’t be made to appear before it. One branch can’t subordinate another branch to its whims; the president couldn’t demand that members of Congress appear before him, either.

This premise makes a certain amount of constitutional sense. It’s true that the different branches of government shouldn’t be able to interfere with each other’s functions.

Yet it’s also the case that, as the Supreme Court has held, the president is subject to some judicial processes — including being made to testify or hand over evidence. After all, Richard Nixon had to hand over his Oval Office tapes and Bill Clinton had to testify in Paula Jones’ civil suit against him. The courts aren’t Congress, to be sure. But if the judicial branch can make the president comply with a subpoena, why should it be axiomatic that the legislative branch cannot?

Rehnquist’s initial assumption that the president is immune from congressional subpoena may be unwarranted, or at least overstated. But he didn’t stop there. Rehnquist went on to argue that the president’s absolute immunity ought to be extended to presidential advisers “who customarily meet with the President on a regular or frequent basis.” The idea here was that the president’s senior White House advisers are effectively extensions of the president himself. In this sense, they are supposed to be constitutionally unlike members of his cabinet, whose roles exist by virtue of acts of Congress and who could therefore more plausibly be subjected to congressional oversight.

Yet the president’s advisers aren’t the same as the president. Even without official cabinet roles, they hold jobs that are paid for out of Treasury funds allocated by Congress. They are subject to federal legislation. Presidential communications with those advisers might well be subject to executive privilege, but it doesn’t follow that they can never be made to testify before Congress on issues relating to their work.

The only judicial opinion discussing the absolute immunity issue came in 2008, after the House Judiciary Committee subpoenaed White House counsel Harriet Miers to testify about the firing of nine U.S. attorneys. The district court in Washington, D.C., held that Miers was not absolutely immune from subpoena. That holding is a further reason to doubt that absolute immunity is constitutionally justified.

There are two catches, however. First, the court specifically said that one reason Miers wasn’t immune was that the case didn’t “involve the sensitive topics of national security or foreign affairs.” That logic presumably wouldn’t apply to former national security advisers like Kupperman and Bolton being subpoenaed to discuss foreign policy decisions.

Second, the 2008 decision was put on hold by the U.S. Court of Appeals for the D.C. Circuit while an appeal was pending, and the case was then settled and dismissed. Technically, it doesn’t form a binding precedent. As a consequence, the office of legal counsel has “respectfully disagreed” with it.

So before we’re done with absolute immunity, expect a new opinion from the district court; an appeal to the D.C. Circuit; and a potential Supreme Court opinion. That could take some time.

It might not slow down the impeachment inquiry that much, though, because Congress won’t have to rely on Kupperman and Bolten’s testimony: Trump’s call with the president of Ukraine speaks for itself.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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