The opinions support the position that the president’s executive privilege covers not just himself, but also his advisers who can thus refuse subpoenas from Congress.
“A Congressional demand for testimony from a close adviser to the President directly implicates a basic concern underlying the Executive privilege, ‘the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties,’” states a July 23, 1982, opinion (pdf) written by Theodore Olson, then-assistant attorney general in the Office of Legal Counsel (OLC) for Rudy Giuliani, Trump’s current personal attorney, who was an associate attorney general at the time.
Six days later, Olson wrote another opinion (pdf) for Edward Schmults, deputy attorney general at the time.
“As far as can be determined, the President and his close advisers have generally not testified before Congressional Committees with respect to the performance of their official duties,” he said. “As Assistant Attorney General for the Office of Legal Counsel William H. Rehnquist expressed it in 1971, ‘The President and his immediate advisers, that is those who customarily meet with him on a regular or frequent basis—should be deemed absolutely immune from testimonial compulsion by a congressional committee.’
While Olson acknowledged that “on a few occasions,” presidential advisers have testified, “it has been in connection with their private affairs.”
OLC opinions are binding for the DOJ, but can be overruled by federal judges.
The Trump administration has resisted a flurry of congressional subpoenas emanating from the Democrats’ impeachment inquiry. Democratic lawmakers have introduced two articles of impeachment, which accuse Trump of abuse of power and obstruction of Congress. The obstruction charge is based on the administration resisting subpoenas.
Trump has dismissed the accusations.
“The Impeachment Hoax is the greatest con job in the history of American politics!” he wrote on Twitter on Dec. 16. “The Fake News Media, and their partner, the Democrat Party, are working overtime to make life for the United Republican Party, and all it stands for, as difficult as possible!”
The impeachment inquiry was started after Trump requested Ukrainian President Volodymyr Zelensky to “look into” the alleged corruption of former Vice President Joe Biden and his son Hunter.
Biden bragged in a 2018 interview that he threatened Ukraine with withholding $1 billion in U.S. aid in 2016, unless the Eastern European country fired a prosecutor accused of corruption.
The prosecutor was also investigating a Ukrainian gas company, Burisma, where Hunter Biden was collecting at least hundreds of thousands of dollars as a board member. He landed the position in 2014 about two months after his father was given authority over Ukrainian matters, including billions in aid and loan guarantees, by then-President Barack Obama.
Trump has called Hunter Biden’s Burisma money a “pay off.”
Democrats say Trump abused his power because he pressured Zelensky during a July 25 phone call to investigate the Biden matter in order to hurt Joe Biden’s 2020 presidential bid. Zelensky denied he was pressured. A transcript of the call released by Trump doesn’t show that he pressured his counterpart.
Trump said on Dec. 7 that Giuliani will make a report to Congress and Attorney General William Barr about the findings from his meetings with former Ukrainian officials.
Giuliani alleged on Dec. 6 that $5.3 billion in U.S. aid to Ukraine was misused during the Obama administration, with much of the money going to nongovernmental organizations favored by the U.S. Embassy. According to Giuliani, the U.S. Embassy directed Ukrainian officials not to pursue an investigation of the misuse.
The State Department didn’t respond to a request by The Epoch Times for comment about Giuliani’s claims.