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Opinions
Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context
Congressional committees participating in an impeachment inquiry may not validly compel executive branch witnesses to testify about matters that potentially involve information protected by executive privilege without the assistance of agency counsel. 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.
Appointment and Removal of Federal Reserve Bank Members of the Federal Open Market Committee
The statutory procedures for appointing and removing Federal Reserve Bank members of the Federal Open Market Committee are consistent with the Constitution, and would have continued to be so under proposed H.R. 6741, the Federal Reserve Reform Act of 2018.
Extending Regulatory Review Under Executive Order 12866 to Independent Regulatory Agencies
The President may direct independent regulatory agencies to comply with the centralized regulatory review process prescribed by Executive Order 12866.
“Urgent Concern” Determination by the Inspector General of the Intelligence Community
A complaint from an intelligence-community employee about statements made by the President during a telephone call with a foreign leader does not involve an “urgent concern,” as defined in 50 U.S.C. § 3033(k)(5)(G), because the alleged conduct does not relate to “the funding, administration, or operation of an intelligence activity” under the authority of the Director of National Intelligence. As a result, the statute does not require the Director to transmit the complaint to the congressional intelligence committees.
Religious Restrictions on Capital Financing for Historically Black Colleges and Universities
The restriction in 20 U.S.C. § 1066c(c) on the Department of Education’s authority to guarantee loans for capital improvements at historically black colleges and universities “in which a substantial portion of its functions is subsumed in a religious mission” violates the Free Exercise Clause of the First Amendment.
The remaining restrictions in the statute can, and must, be construed to avoid further conflict with the Free Exercise Clause. We thus read section 1066c(c) and 20 U.S.C. § 1068e(1) to deny loans under the program only for facilities that are predominantly used for devotional religious activity, or for facilities that are part of an HBCU, or part of a department or branch of an HBCU, that offers only programs of instruction devoted to vocational religious education.
Testimonial Immunity Before Congress of the Assistant to the President and Senior Counselor to the President
The Assistant to the President and Senior Counselor to the President is absolutely immune from compelled congressional testimony in her capacity as a senior adviser to the President.
Congressional Committee’s Request for the President’s Tax Returns Under 26 U.S.C. § 6103(f)
The provisions in 26 U.S.C. § 6103 protecting confidentiality of tax returns prohibited the Department of the Treasury from complying with a request by the Chairman of the House Ways and Means Committee for the President’s tax returns. The text of section 6103(f), the statutory exception under which the request was made, does not require the Committee to state any purpose for its request. But Congress could not constitutionally confer upon the Committee the right to compel the Executive Branch to disclose confidential information without a legitimate legislative purpose. Under the facts and circumstances, the Secretary of the Treasury reasonably and correctly concluded that the Committee’s asserted interest in reviewing the Internal Revenue Service’s audits of presidential returns was pretextual and that its true aim was to make the President’s tax returns public, which is not a legitimate legislative purpose.
Because section 6103(a) prohibited the disclosure of the tax returns sought in the Chairman’s request, as well as in the corresponding subpoenas, the Department of the Treasury’s refusal to provide the information did not violate either 26 U.S.C. § 7214(a)(3) or 2 U.S.C. § 192.
Assertion of Executive Privilege Over Deliberative Materials Regarding Inclusion of Citizenship Question on 2020 Census Questionnaire
The President may assert executive privilege over “priority documents” relating to the Secretary of Commerce’s decision to include a citizenship question on the 2020 decennial census questionnaire that the House Committee on Oversight and Reform has demanded as responsive to its subpoenas. The “priority documents” all involve pre-decisional deliberative material, attorney-client communications, or attorney work product.
The President may make a protective assertion of executive privilege over the remaining subpoenaed documents to give time for the Departments of Commerce and Justice to determine whether any remaining documents may be subject to privilege.
Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees
Congress may not constitutionally prohibit agency counsel from accompanying agency employees called to testify about matters that potentially involve information protected by executive privilege. Such a prohibition would impair the President’s constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch’s communications with Congress.
Congressional subpoenas that purport to require agency employees to appear without agency counsel are legally invalid and are not subject to civil or criminal enforcement.
Testimonial Immunity Before Congress of the Former Counsel to the President
The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers. This immunity applies to former senior advisers such as the former White House Counsel. Accordingly, the former Counsel is not legally required to appear and testify about matters related to his official duties as Counsel to the President.
The President does not waive an adviser’s immunity from compelled congressional testimony by authorizing disclosure of any particular information. The disclosure’s impact on executive privilege does not ultimately bear on any underlying immunity from compelled testimony.
Because Congress may not constitutionally compel the former Counsel to testify about his official duties, he may not be civilly or criminally penalized for following a presidential directive not to appear. The same rationale applies equally to an exercise of inherent contempt powers against a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee.