Or anyone else serving in a White House role, if Donald Trump can prevent it. In the case of Stephen Miller, that outcome was a foregone conclusion even apart from the bubbling fight over the Mueller report. Earlier today, the White House formally rejected a request from House Oversight chair Elijah Cummings for Miller’s appearance at a hearing, citing “long-standing precedent” about executive privilege among presidential advisers:
White House senior aide Stephen Miller, a powerful immigration policy adviser, will not testify before the House Oversight Committee, the Trump administration said in a letter Tuesday.
The letter, signed by White House counsel Pat Cipollone, said the refusal to appear before the Democratic-led committee follows “long-standing precedent” for White House staffers of both parties and adheres to constitutional law.
The decision to pass on the hearing could keep Miller — largely regarded as the architect of President Donald Trump’s aggressive immigration agenda — out of the spotlight. The senior aide reportedly pushed for the removal of several Homeland Security Department officials during a staff shakeup earlier this month.
Miller perfectly fits a claim of executive privilege. He works completely within the White House as a policy advisor, running nothing that shares legislative authority as a Cabinet secretary does. Miller’s purpose is to serve within the separate-and-coequal executive branch. Plenty of precedents exist to refuse Cummings’ request, but current White House counsel Pat Cipollone made careful reference to those from Democratic administrations in his letter:
In accordance with long-standing precedent, we respectfully decline the invitation to make Mr. Miller available for testimony before the Committee. The precedent for members of the White House staff to decline invitations to testify before congressional committees has been consistently adhered to by administrations of both political parties, and is based on clearly established constitutional doctrines. See Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach from Congressional Subpoena, 38 O.L.C. Op. 1, 1 (2014) (“The Executive Branch’s longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President’s immediate advisers are absolutely immune from congressional testimonial process.”); see also Letter from Robert F. Bauer, Counsel to the President, to Darrell E. Issa, Chairman, Committee on Oversight and Government Reform (June 16, 2011) (“White House staff generally do not testify before Congress.”); Letter from Lloyd N. Cutler, Counsel to the President, to Samuel S. Stratton, Chairman, Subcommittee on Investigations of the Committee on Armed Services (Sept. 30, 1980) (“Congress has always respected the privilege of the President to decline requests that the President himself or his immediate White House advisors appear to testify before Congressional committees.”).
Cummings likely won’t press the issue on Miller, although the refusal certainly serves his purpose. Democrats want to make Miller the villain on immigration policy, and that’s easier to do when Miller can’t argue back. Oversight may or may not take up Cipollone’s offer to have other “Executive Branch” officials within the Department of Homeland Security testify instead, but that won’t deliver the kind of attention Miller’s appearance would have provided. Plus, those officials would likely be better prepared for an Oversight hearing.
This isn’t directly connected to the Trump administration’s strategy in dealing with attempts by House Democrats to redo Robert Mueller’s investigation. It is, however, in parallel with the effort to broadly apply executive privilege within the administration to stymie the do-over. Other claims of executive privilege will face a potentially rougher path through the courts, but Axios made a good point about that earlier today. Whether a court agrees with it or not, the appeals process alone will likely “run out the clock”:
The millions of voters who elected a Democratic House in November are about to find out how hard it is for one party — with just one chamber of Congress and without the cooperation of the other party — to investigate a president who’s determined to run out the clock.
Yes, House Democrats can subpoena whoever and whatever they want — but those subpoenas are hard to enforce. They can hold administration officials in contempt, but in all of the most recent examples where Congress did that, it fizzled.
Do you remember Eric Holder going to jail during Barack Obama’s presidency because Congress held him in contempt for refusing to turn over “Fast and Furious” documents? Or Harriet Miers and Josh Bolten going to jail during George W. Bush’s presidency after Congress held them in contempt for refusing to testify about the resignations of nine U.S. attorneys?
Of course you don’t — because none of it happened.
The long term risk in fighting executive-privilege claims is that it could force the courts to set hard precedents where the other two branches have long relied on soft consensus. Barack Obama discovered the dangers of that the hard way when he abused the recess-appointments privilege so much that it ended up in court — and Obama lost, setting a far narrower window for such appointments in the future. Congress could take Trump to court over executive privilege claims and might even win on the basis that waiving privilege with Mueller amounted to a universal and permanent waiver. That would only incentivize future presidents to never waive executive privilege under any circumstances. Even if Trump wins, it still makes these precedents non-negotiable.
Of course, standing firm on executive privilege theoretically could make Trump look like he’s got something to hide, which could do some political damage. That will likely be mitigated by the fact that he never claimed privilege in Mueller’s probe, and also because it’s increasingly looking like the only people who give a damn about this are House Democrats and the media who cover them. Everyone else have moved on.