House Judiciary Committee Rep. Jerrold Nadler (D-N.Y.) announced on Monday that Annie Donaldson, former chief of staff to former White House counsel Don McGahn, has agreed to testify. On the same day, legal experts put pen to paper to take issue with the Trump Administration’s “absolute immunity” response to congressional inquiries. Harvard Law Professor Laurence Tribe, for one, reacted to all of this by calling the White House strategy “egomaniac immunity,” while plainly joking that he would refrain from doing so.
Here’s a definitive legal shredding of the Trump administration’s latest effort to concoct an obstacle to Congress’s powers of inquiry: “alter ego immunity.” I’m tempted to call it “egomaniac immunity,” but I’ll refrain. https://t.co/kcgd7WbehU
— Laurence Tribe (@tribelaw) June 24, 2019
“Here’s a definitive legal shredding of the Trump administration’s latest effort to concoct an obstacle to Congress’s powers of inquiry: ‘alter ego immunity.’ I’m tempted to call it ‘egomaniac immunity,’ but I’ll refrain,” he said, calling it egomaniac immunity.
In case you missed it Monday, Donaldson agreed to appear for in-person testimony after Nov. 1 about key events she witnessed during her tenure working for McGahn. She also agreed to provide answers to written questions.
Although Donaldson was subpoenaed to appear on Monday, Nadler acknowledged that Donaldson’s pregnancy “makes it difficult for her to travel and testify for long periods of time, and we worked on finding an accommodation to those needs and restrictions.” Nadler said that Donaldson’s testimony was a “key witness” because she had “a front row seat to many of the instances outlined in the Mueller Report dealing with President Trump’s alleged obstruction of justice and other abuses of power.”
Here’s where the Tribe response to the Just Security analysis of the situation is relevant: Don McGahn has already agreed to side with the White House directive not to testify on grounds of executive privilege; Just Security says that even if you believe in the “Executive Branch theory that the president’s senior aides are ‘absolutely immune’ from appearing before Congress,” that would not apply to Donaldson. In other words, the White House’s reported forthcoming argument that “absolute immunity” from congressional testimony extends to Donaldson is wrong since she her role did not fit the definition of “immediate advisor,” nor a “member of the President’s immediate staff,” nor an individual President Donald Trump relied on “directly” for advice. Put still another way: Donaldson was no Hope Hicks or McGahn.
The crux of Just Security‘s analysis [emphases theirs, not ours]:
As articulated over the years, the theory of “absolute immunity” is based on the premise that the most senior presidential aides “function 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.” The President must be able to rely on them for their candid advice, and they cannot be forced to direct their time and attention to being drawn away to Capitol Hill when they are in direct service to the President. Due to the absolute nature of the immunity—rather than a qualified one that could involve the balancing of different public interests and congressional responsibilities—the circle of senior aides has been kept small.
According to the Office of Legal Counsel, the theory covers “immediate advisers” (and alternatively, “members of the President’s immediate staff,” “who customarily meet with the President on a regular or frequent basis,” those “upon whom the President relies directly for candid and sound advice.”
White House counsel Pat Cipollone previously sent letters to both McGahn’s attorney William Burck and Rep. Nadler. Those letters made clear that the White House was directing McGahn not to comply with a congressional subpoena, on grounds of executive privilege.
McGahn, a recurring witness in Special Counsel Robert Mueller‘s obstruction volume, agreed to comply with the White House directive not to testify; the House of Representatives responded by voting to hold McGahn in civil contempt. It seems the White House is preparing to make a similar argument to prevent Donaldson from testifying. Donaldson was also directed not to comply with a subpoena.
But the White House, which has been involved in the [Donaldson] negotiations [with House Judiciary], is expected to assert its claims that former aides have “absolute immunity” from testifying to Congress about their service in the White House, sources said. Democrats have said that claim is legally baseless and are vowing to defeat it in federal court. A White House spokesman did not immediately respond to a request for comment.
Donaldson was served with a subpoena last month for documents and public testimony as part of the committee’s investigation into whether President Donald Trump obstructed Justice. She was the top deputy to former White House Counsel Don McGahn, who, according to Mueller, was directed by Trump on several occasions to fire the special counsel.
Despite McGahn’s agreement to follow the White House’s orders, President Trump recently accused McGahn of lying under oath when he told Mueller that Trump, on two occasions, asked him to put into motion Mueller’s firing.
Trump told ABC News’s George Stephanopoulos that McGahn either lied under oath about directives to get Robert Mueller fired in order to make himself look like a good lawyer or misunderstood something he said in the past.
Stephanopoulos: But why would he lie under oath to Robert Mueller?
Trump: Because he wanted to make himself look like a good lawyer — or he believed it because I would constantly tell anybody that would listen, including you, including the media, that Robert Mueller was conflicted. Robert Mueller had a total conflict of interest.
[Image via Jim Watson/AFP/Getty Images]