White House Aides Testifying Before Congress

Although White House aides do not testify before congressional committees on a regular basis, under certain conditions they do. First, intense and escalating political embarrassment may convince the White House that it is in the interest of the president to have these aides testify and ventilate the issue fully. Second, initial White House resistance may give way in the face of concerted congressional and public pressure. This article identifies the instances since 1970 when White House aides have testified. Even when the White House decides that aides shall not testify, other mechanisms may be offered for satisfying congressional interests. For example, the White House may suggest that the aides meet with a committee or subcommittee chair to respond to inquiries and respond to any written questions the chair submits. White House aides are also subject to deposition by congressional committees. An example of a compromise arrangement occurred in 1981, when Martin Anderson, President Ronald Reagan's assistant for policy development, refused to appear before a House Appropriations subcommittee responsible for funding his budget request for the Office of Policy Development. The subcommittee retaliated by deleting all of the $2,959,000 requested for the office. In doing so, it pointed out that the previous heads of the office (Stuart Eisenstat in the Carter years, James M. Cannon in the Ford years, and Kennedy R. Cole in the Nixon years) had appeared before the subcommittee.(1) Fred F. Fielding, White House counsel, offered legal grounds to support Anderson's decision. As a senior adviser to President Reagan, Anderson participated in the deliberative process by providing "frank and candid advice." Such candor "is possible only in an atmosphere that insures that the advice win remain confidential. "(2) These arguments are strained. Cabinet heads are also senior advisers to Presidents and are part of a deliberative process requiring candor and confidentiality. They nevertheless regularly appear before congressional committees, and may (as could Anderson) at any time decline to respond to committee questions and inquiries that jeopardize confidentiality. In many cases a committee is interested in specific facts and general policies, not in the deliberative process. In his legal memorandum, Fielding said that Anderson "remains willing to meet informally with the Subcommittee to provide such information as he can consistent with his obligations of confidentiality to the President."(3) If he could meet informally, why not formally? Certainly informal meetings pose some risk to confidentiality and inquiries into the deliberative process. Advisers can fend off such inquiries in informal meetings and can do the same in formal hearings. After the subcommittee mark-up in 1981, Anderson met informally and off the record with the subcommittee.(4) After the Senate restored almost all of the funds, Congress appropriated $2,500,000 instead of the budget request of $2,959,000.(5) Nomination of Richard G. Kleindienst (1972) President Richard Nixon's nomination of Richard G. Kleindienst in 1972 to be attorney general precipitated lengthy hearings by the Senate Committee on the judiciary. Columnist Jack Anderson charged that Kleindienst had lied in disclaiming any role in the justice Department's out-of-court settlement of antitrust cases against International Telephone and Telegraph Corp (ITT). The Senate was interested in having Peter Flanigan, a presidential aide and the chief White House figure involved in the controversy, testify. However, on April 12, 1972, White House counsel John W. Dean III wrote to the committee that the doctrine of executive privilege would protect Flanigan and other White House aides from testifying before congressional committees: "Under the doctrine of separation of powers, and long-established historical precedents, the principle that members of the President's immediate staff not appear and testify before congressional committees with respect to the performance of their duties is firmly established"(6) Senator Sam J. …