The Law: Presidential Aides: Immunity from Congressional Process?


  • AUTHOR'S NOTE: All views and opinions expressed herein are personal and not institutional. I would like to thank T. J. Halstead and Morton Rosenberg for their invaluable advise, guidance, and assistance.

Todd B. Tatelman is a legislative attorney with the Congressional Research Service's American Law Division.


The congressional investigation into the forced resignations of several U.S. attorneys and the subsequent civil lawsuit by Congress against the president has heightened interest in the doctrine of separation of powers. When the involvement of high-ranking presidential aides became apparent, the White House responded not only by claiming executive privilege, but also by asserting that the aides were immune from compulsory process and were not required to comply with congressional subpoenas. The declaration represents an attempt to expand the notion of executive privilege from qualified to absolute. Such an expansion is not consistent with either historical practice or the prevailing judicial understanding of executive privilege and the separation of powers.