ACSBlog: The Blog of the American Constitution Society

With the House Judiciary Committee considering whether to grant immunity to former DOJ official Monica Goodling in order to ensure her testimony on the U.S. Attorneys controversy, Robert Weiner, who served in the Office of the White House Counsel during the Clinton Administration, explains that a different type of immunity claim may take soon take center stage:

The U.S. Supreme Court explained the nature and limits of executive privilege in the Nixon tapes case during Watergate. It said that executive privilege protects "the confidentiality of Presidential communications." And it made clear that the privilege is not absolute. The court balanced the competing interests at stake, the president's need for confidentiality against the needs of the criminal justice system in finding the truth. Here, by contrast, the president seeks not merely to bar testimony about specific conversations or documents. He claims the right to block any sworn public testimony by his advisers, period. Thus, the claim of confidentiality is based on who the witnesses are rather than what they have to say. And the president is suggesting that this immunity, unlike executive privilege, is absolute. There is no balancing of interests.

This claim of immunity is not only broader than executive privilege, it also stands on weaker ground. No court has ever ruled on the issue. To be sure, although officials have testified on occasion, both Republican and Democratic administrations have long insisted that Congress cannot compel testimony by the president's closest advisers. The claim of immunity, however, rests on legal opinions written by the U.S. Department of Justice (DOJ). Attorney General Janet Reno issued one in 1999. She relied on a 1996 opinion from DOJ's Office of Legal Counsel. And that office relied on its own prior opinion from 1971. DOJ's position, to say the least, is self-referential.

As Weiner explains, however, this self-referential claim of immunity must be tested in the courts before it is upheld.  The President may claim immunity, but "he is not the decider. A court is."