It could almost be a bar exam question.

Under the Executive Branch theory that the president’s senior aides are “absolutely immune” from appearing before Congress, which of these is not like the others?

  1. Former Assistant to the President, White House Counsel (Don McGahn)
  2. Former Assistant to the President and White House Communications Director (Hope Hicks)
  3. Former Deputy Assistant to the President and White House Deputy Counsel (Annie Donaldson)

In answering this question, assume that the Executive Branch’s theory is valid. Also assume the theory applies to former as well as incumbent officials. And finally assume that the theory is not limited to advisers who especially cover national security and foreign affairs.

Based on the Executive’s own framework, the answer to the question is clear:

C. A deputy assistant to the president falls outside the scope of the “absolute immunity” theory as previously articulated by the Executive Branch.

Nevertheless, the White House is reportedly planning to assert that Donaldson has “absolute immunity” and cannot be compelled to provide testimony to Congress.

The outcome could be a game changer for Congressional investigations of possible obstruction of justice and abuse of power as described in the Mueller report. Anne Tindall explained at Just Security that Donaldson may be “Congress’ Prized Witness.” As chief of staff to McGahn, Donaldson reportedly took copious notes. Mueller’s report cites her notes and testimony to the special counsel’s office nearly 70 times.

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.”

According to Jonathan Shaub, “immunity has never been claimed for a White House official who reports to a more senior White House official,” such as a deputy assistant, deputy counsel, or White House counsel chief of staff (all of Donaldson’s titles). Shaub, who worked on these issues in the Office of Legal Counsel, explained further, “We had many such [conversations]; all agreed doctrine limited to closest of close, 8 to 10 max.”

That list of 8-10 would include senior advisers to the president such as George Stephanopoulos (Clinton), Karl Rove (Bush), Daivd Axelrod and Valerie Jarrett (Obama), and Jared Kushner, Ivanka Trump and Stephen Miller (Trump). Below that line are assistants to the president (like McGhan) who are also within the class of immediate advisers who “regularly meet[s] with the President [and] … frequently meets with the President alone.”

Michael Stern, former Senior Counsel to the House of Representatives, told Just Security, “OLC has not been clear on exactly who qualifies for immunity under its theory, but it has suggested it applies to the president’s ‘immediate advisers’ who assist him on a ‘daily basis.’ It is questionable whether it would apply to an aide who does not provide direct assistance to the president on a daily basis but who generally deals with the president through a more senior White House official to whom she reports.”

Trying to envision the strongest argument for the Executive Branch, perhaps the White House could say that even if Donaldson does not herself possess the immunity, former White House Counsel McGhan does, and having his chief of staff (Donaldson) testify about what exactly he told the President should also be covered by McGahn’s immunity. The many problems with that line of analysis include the fact that immunity follows individuals, while privileges follow information. It’s also tenuous to suggest that Donaldson’s position as chief of staff makes a meaningful difference here. She could have been a much lower staffer who happened to take copious notes.    

Whether the Trump Administration will even have recourse to this strained reading of its immunity theory is far from certain, as the federal courts have proven skeptical of the Executive’s immunity claims for senior aides in the past. In 2008, Judge John D. Bates considered the theory of “absolute immunity” an invalid concoction by the Executive Branch in a case involving President George W. Bush’s former White House Counsel Harriet Miers. Judge Bates, a Bush appointee and former senior Justice Department official, could not have been more unequivocal in his repudiation of the idea that senior aides are absolutely immune from compelled congressional process:

“The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity.”

That said, the Executive Branch across Democratic and Republican administrations have maintained the absolute immunity theory. Indeed, a 2014 Office of Legal Counsel opinion during the Obama Administration also included an argument for why Judge Bates’ opinion in the Miers case was wrong.

If the Trump White House does assert immunity for Donaldson, they may undercut their own position when this dispute with Congress reaches the courts. It will show federal judges just how far the Executive Branch’s concoction of the theory can go.

But losing on the merits is not the worst situation for the White House. Their strategy may be to assert the claim of absolute immunity, wait until that winds its way through the federal courts until it is ultimately resolved likely in favor of Congress, and then begin the next round with Congress by invoking executive privilege over specific pieces of information. There are ways for Congress to try to handle such maneuvers, and courts will be ever more alert to congressional concerns if the White House invokes immunity on such wholly weak and unprecedented grounds for Donaldson.