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Title Headnotes
Assertion of Executive Privilege Over Deliberative Materials Regarding Inclusion of Citizenship Question on 2020 Census Questionnaire

The President may assert executive privilege over “priority documents” relating to the Secretary of Commerce’s decision to include a citizenship question on the 2020 decennial census questionnaire that the House Committee on Oversight and Reform has demanded as responsive to its subpoenas. The “priority documents” all involve pre-decisional deliberative material, attorney-client communications, or attorney work product.

The President may make a protective assertion of executive privilege over the remaining subpoenaed documents to give time for the Departments of Commerce and Justice to determine whether any remaining documents may be subject to privilege.

Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees

Congress may not constitutionally prohibit agency counsel from accompanying agency employees called to testify about matters that potentially involve information protected by executive privilege. Such a prohibition would impair the President’s constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch’s communications with Congress.

Congressional subpoenas that purport to require agency employees to appear without agency counsel are legally invalid and are not subject to civil or criminal enforcement.

Testimonial Immunity Before Congress of the Former Counsel to the President

The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers. This immunity applies to former senior advisers such as the former White House Counsel. Accordingly, the former Counsel is not legally required to appear and testify about matters related to his official duties as Counsel to the President.

The President does not waive an adviser’s immunity from compelled congressional testimony by authorizing disclosure of any particular information. The disclosure’s impact on executive privilege does not ultimately bear on any underlying immunity from compelled testimony.

Because Congress may not constitutionally compel the former Counsel to testify about his official duties, he may not be civilly or criminally penalized for following a presidential directive not to appear. The same rationale applies equally to an exercise of inherent contempt powers against a senior aide who has complied with a presidential direction that he not provide testimony to a congressional committee.

Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files

The President may make a preliminary, protective assertion of executive privilege over the entirety of the materials subpoenaed by the Committee on the Judiciary of the House of Representatives relating to Special Counsel Mueller’s investigation, to ensure the President’s ability to make a final assertion, if necessary, over some or all of the subpoenaed material.

Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions

Articles intended for use in executions carried out by a State or the federal government cannot be regulated as "drugs" or "devices" under the Federal Food, Drug, and Cosmetic Act. The Food and Drug Administration therefore lacks jurisdiction to regulate articles intended for that use.

Designating an Acting Director of the Federal Housing Finance Agency

In designating an Acting Director of the Federal Housing Finance Agency, the President may choose either an incumbent Deputy Director under 12 U.S.C. § 4512(f), the vacancy statute that applies specifically to the office of the Director, or someone who is made eligible to be an acting officer by the Vacancies Reform Act of 1998. Under the latter, the President may select the Senate-confirmed Comptroller of the Currency.

Paying for Removing Structures at the Treasure Lake Civilian Conservation Center

The interdepartmental-waiver doctrine, under which one agency generally may not pay to restore or repair property in the custody of another agency, prevents the Department of Labor from paying to remove structures at a defunct Job Corps site that is located within a wildlife refuge in the custody of the Department of Interior. No statutory authority has displaced that doctrine’s applicability by authorizing the Department of Labor to pay for removing the structures.

Requests by Individual Members of Congress for Executive Branch Information

In reviewing requests from Congress, the Executive Branch’s longstanding policy has been to engage in the established process for working to accommodate congressional requests for information only when those requests come from a committee, subcommittee, or chairman acting pursuant to oversight authority delegated from a House of Congress. Departments and agencies, however, may appropriately give due weight and sympathetic consideration to requests for information from individual members of Congress not delegated such authority.

Only a committee chairman may request presidential records under section 2205(2)(C) of the Presidential Records Act, unless the committee has specifically delegated that authority to another member.

Mandatory Disclosure of Civil Rights Cold Case Records

The mandatory disclosure regime in S. 3191, the Civil Rights Cold Case Records Collection Act of 2018, could curtail the President’s ability to protect information subject to executive privilege.

S. 3191 unconstitutionality restricts the qualifications for appointees to the Civil Rights Cold Case Records Review Board and unconstitutionally dictates the timing of their appointments.

S. 3191 unconstitutionally restricts the President’s supervision of the Executive Branch by prohibiting the President from removing Review Board members absent cause.

Designating an Acting Attorney General

The President’s designation of a senior Department of Justice official to serve as Acting Attorney General was expressly authorized by the Vacancies Reform Act. That act is available to the President even though the Department’s organic statute prescribes an alternative succession mechanism for the office of Attorney General.

The President’s designation of an official who does not hold a Senate-confirmed office to serve, on a temporary basis, as Acting Attorney General was consistent with the Appointments Clause. The designation did not transform the official’s position into a principal office requiring Senate confirmation.

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