Order Code RL31351
CRS Report for Congress
Received through the CRS Web
Presidential Advisers’ Testimony Before
Congressional Committees: A Brief Overview
April 5, 2002
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Jay R. Shampansky
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Presidential Advisers’ Testimony Before
Congressional Committees: A Brief Overview
Summary
Since the beginning of the federal government, Presidents have called upon
executive branch officials to provide them with advice regarding matters of policy and
administration. While Cabinet members were among the first to play such a role, the
creation of the Executive Office of the President (EOP) in 1939 and the various
agencies located within that structure resulted in a large increase the number and
variety of presidential advisers. All senior staff members of the White House Office
and the leaders of the various EOP agencies and instrumentalities could be said to
serve as advisers to the President.
Occasionally, these executive branch officials playing a presidential advisory role
have been called upon to testify before congressional committees and subcommittees.
Sometimes, such invited appearances have been prompted by allegations of personal
misconduct on the part of the official, but they have also included instances when
accountability for policymaking and administrative or managerial actions have
instigated the request for testimony. Because such appearances before congressional
committees or subcommittees seemingly could result in demands for advice proffered
to the President, or the disclosure—inadvertent or otherwise—of such advice, there
has been resistance, from time to time, by the Chief Executive to allowing such
testimony.
Congress has a constitutionally rooted right of access to the information it needs
to perform its Article I legislative and oversight functions. Generally, a congressional
committee with jurisdiction over the subject matter, which is conducting an authorized
investigation for legislative or oversight purposes, has a right to information held by
the executive branch in the absence of either a valid claim of constitutional privilege
by the executive or a statutory provision whereby Congress has limited its
constitutional right to information.
A congressional committee may request (informally, or by a letter from the
committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to
subpoena) the testimony of a presidential adviser. However, Congress may encounter
legal and political problems in attempting to enforce a subpoena to a presidential
adviser. Conflicts concerning congressional requests or demands for executive branch
testimony or documents often involve extensive negotiations and may be resolved by
some form of compromise as to, inter alia, the scope of the testimony or information
to be provided to Congress.

Contents
Executive Office of the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Presidential Adviser Growth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Presidential Adviser Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Presidential Adviser Testimony Refused . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Why Presidential Advisers Do Not Regularly Testify
Before Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Congress’s Right to Executive Branch Information . . . . . . . . . . . . . . . . . 13
Procedure for Obtaining Executive Branch Testimony . . . . . . . . . . . . . . . 17
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Presidential Advisers’ Testimony
Before Congressional Committees:
A Brief Overview
Since the beginning of the federal government, Presidents have called upon
executive branch officials to provide them with advice regarding matters of policy and
administration. The Constitution recognized such relationships when it authorized the
President, in Article II, section 2, to “require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon any Subject relating to the Duties
of their respective Offices.” There were, as well, reasons to expect that such advice,
whether offered orally or in writing, would be held in confidence. The advice was for
the President’s consideration and his decisionmaking. The matters involved were
sensitive, perhaps bearing upon the foreign, military, economic, or law enforcement
policy of the nation. Also, the provision, discussion, and use of such advice by the
executive branch could affect its relationships with the other coequal constitutional
branches. President George Washington and his Cabinet had these considerations in
mind, as Secretary of State Thomas Jefferson’s notes on their deliberations reflect,
when they decided upon a response to a 1792 congressional request for information.
We had all considered, and were of one mind, first, that the House was an inquest,
and therefore might institute inquiries. Second that it might call for papers
generally. Third, that the Executive ought to communicate such papers as the
public good would permit, and ought to refuse those, the disclosure of which
would injure the public; consequently were to exercise a discretion. Fourth, that
neither the committee nor House had a right to call on the Head of a Department,
who and whose papers were under the President alone; but that the committee
should instruct their chairman to move the House to address the President....1
The Cabinet, composed of the principal officers in each of the executive
departments, failed, for several reasons, to develop as an important source of
presidential advice. The department heads constituting the Cabinet were often chosen
to satisfy interests that contributed significantly to the President’s election.
Considerations of partisanship, ideology, geography, public image and stature, and
aptitude, among others, figured prominently in their selection. Sometimes the
President was not personally well acquainted with these individuals and had only
minimal confidence and trust in them. In a few cases, a political rival was included
in the Cabinet.
It is also very likely that some activist Presidents were ill suited to the group
deliberation of the Cabinet. Similarly, many Cabinet members might have felt
1Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson, vol.
1 (Washington: Thomas Jefferson Memorial Association, 1903), pp. 303-304.

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unqualified, or were unwilling, to offer counsel to the President on matters outside of
their immediate portfolios; their advice was perhaps limited to, and protective of,
departmental interests. Finally, personal hostilities between or among department
heads could result in such tumult within the Cabinet that little useful advice could be
gained.
Consequently, Presidents generally looked to other quarters for advisers. One
development in this regard was the creation of circles of advisers composed of both
public officials and private citizens. President Andrew Jackson, whose election and
White House tenure occurred in an era marked by violent political controversy and
party instability, utilized an informal group of advisers which came to be known as the
Kitchen Cabinet. The members represented “rising social groups as yet denied the
prestige to which they felt their power and energies entitled them”—newspapermen,
the President’s private secretary, campaign organizers and officials from prior
administrations, and longtime personal friends.2
When John Tyler succeeded to the presidency upon the death of William Henry
Harrison, he revived Jackson’s practice. Deserted by Whigs and Democrats alike,
Tyler resorted to a select circle of advisers composed of personal and political friends
from his native Virginia—a college president, a state supreme court judge, four
members of the state’s delegation in the House of Representatives, and a Senator.3
Following this practice, several succeeding Presidents had informal groups of advisers
that were given colorful names by the press. For example, for Grover Cleveland, it
was a Fishing Cabinet; for Theodore Roosevelt, a Tennis Cabinet; for Warren G.
Harding, a Poker Cabinet; and for Herbert Hoover, a Medicine Ball Cabinet.
Jackson’s inclusion of his personal secretary in his Kitchen Cabinet reflects
another line of development regarding presidential advisers. Beginning with
Washington, Presidents sought to meet the demands of their office with the assistance
of a single personal secretary, usually a relative, compensated from their own private
resources. In 1833, Congress authorized the President to appoint, with the advise and
consent of the Senate, a secretary “whose duty it shall be, under the direction of the
President, to sign in his name and for him, all patents for lands sold or granted under
the authority of the United States.”4 Jackson named Andrew Jackson Donelson, his
wife’s nephew and current personal secretary, to this position, relieving himself of
continued personal compensation of the young man. Ultimately, Congress
appropriated funds to the Chief Executive in 1857 for an official household—a
personal secretary, a steward to supervise the Executive Mansion, and a messenger.5
Many years later, in 1929, Congress was persuaded to authorize an increase in
the President’s top personnel, adding two more secretaries and an administrative
2Arthur M. Schlesinger, Jr., The Age of Jackson (Boston, MA: Little, Brown, 1945), p. 67.
3Louis W. Koenig, The Invisible Presidency (New York: Rinehart, 1960), p. 40.
44 Stat. 633.
511 Stat. 228.

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assistant.6 Appointed to these senior staff positions were presidential lieutenants, if
not presidential intimates and advisers. When Franklin D. Roosevelt came to the
presidency in 1933, he brought with him, from his New York gubernatorial
experience, a new kind of advisory circle, composed of intellectuals, or at least a core
group of Columbia University professors who were joined by other ideas people to
form the “Brains Trust.” Because there were an insufficient number of staff positions
at the White House to accommodate them, these advisers were placed elsewhere in
the executive branch, but, for the most part, directly served the President.7
This staffing situation, coordination problems, and the development of a new
administrative management concept prompted Roosevelt to create, by announcement,
a study panel—the President’s Committee on Administrative Management, under the
leadership of Louis Brownlow, a prominent public administration practitioner—in
1936 to examine and make recommendations regarding these matters.8 Reporting
some 10 months later, the Brownlow committee addressed presidential staffing in
dramatic and detailed terms.
The President needs help. His immediate staff assistance is entirely inadequate.
He should be given a small number of executive assistants who would be his direct
aides in dealing with the managerial agencies and administrative departments of
the government. These assistants, probably not exceeding six in number, would
be in addition to the present secretaries, who deal with the public, with the
Congress, and with the press and radio. These aides would have no power to make
decisions or issue instructions in their own right. They would not be interposed
between the President and the heads of his departments. They would not be
assistant presidents in any sense. Their function would be, when any matter was
presented to the President for action affecting any part of the administrative work
of the Government, to assist him in obtaining quickly and without delay all
pertinent information possessed by any of the executive departments so as to guide
him in making his responsible decisions; and then when decisions have been made,
to assist him in seeing to it that every administrative department and agency
affected is promptly informed. Their effectiveness in assisting the President will,
we think, be directly proportional to their ability to discharge their functions with
restraint. They would remain in the background, issue no orders, make no
decisions, emit no public statements. Men for these positions should be carefully
chosen by the President from within and without the Government. They should be
men in whom the President has personal confidence and whose character and
attitude is [sic] such that they would not attempt to exercise power on their own
account. They should be possessed of high competence, great physical vigor, and
a passion for anonymity. They should be installed in the White House itself,
directly accessible to the President. In the selection of these aides, the President
should be free to call on departments from time to time for the assignment of
645 Stat. 1230.
7See Rexford G. Tugwell, The Brains Trust (New York: Viking, 1968).
8Samuel I. Rosenman, ed., The Public Papers and Addresses of Franklin D. Roosevelt,
Volume 5: The People Approve, 1936
(New York: Random House, 1938), p. 144.

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persons who, after a tour of duty as his aides, might be restored to their old
positions.9
In addition to the proposed addition of six assistants to the President’s staff, the
committee’s report also recommended vesting responsibility in the President for the
continuous reorganization of the executive branch. Released to Congress on January
12, 1937, the report soon became lost in high politics. Three weeks after submitting
the Brownlow committee’s report to Congress, Roosevelt announced he wanted to
enlarge the membership of the Supreme Court. His “court packing” plan not only fed
congressional fears of a presidential power grab, but also so preoccupied Congress
that the Brownlow committee’s recommendations were ignored.
Executive Office of the President
Although efforts at gaining legislative approval of the Brownlow committee’s
recommendations lay in ruin in the spring of 1938, the President had not deserted the
cause. By July, Roosevelt was meeting with Brownlow and the other committee
members. The panel would not be officially reassembled, but he wanted each man’s
help with a reorganization authority proposal. The resulting measure empowered the
President to propose reorganization plans, subject to a veto by a majority vote of
disapproval in both houses of Congress, and to also appoint six administrative
assistants.
After three days of discussion and debate, the House adopted the bill on March
8, 1939. Twelve days later, the Senate began considering the proposal. Following
two days of sparring over amendments, the Senate adopted the bill. A quick
conference cleared the measure for Roosevelt’s signature on April 3.10 Earlier, the
President had asked the Brownlow committee members to assist with the preparation
of his initial reorganization plans.11
Following consultations with Budget Bureau Director Harold D. Smith, the
Brownlow group presented two reorganization proposals to Roosevelt on April 23.
Plan 1, submitted to Congress on April 25, transferred certain agencies to the
Executive Office of the President, but offered no explanation of that entity.12 In Plan
2, a presidential emergency council was abolished and most of its functions were
transferred to the Executive Office.13 While both plans were acceptable to legislators,
their effective dates were troublesome in terms of accommodating fiscal calendar
necessities. By joint resolution, Congress provided that both plans would be effective
9U.S. President’s Committee on Administrative Management, Report of the President’s
Committee
(Washington: GPO, 1937), p. 5.
1053 Stat. 561.
11Richard Polenberg, Reorganizing Roosevelt’s Government (Cambridge, MA: Harvard
University Press, 1966), pp. 184-187.
1253 Stat. 1423.
1353 Stat. 1431 at 1435.

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on July 1, 1939.14 Following this action, the President, on September 8, issued E.O.
8248, formally organizing the Executive Office and, thereby, defining it in terms of
its components.15 Brownlow, who drafted the initial reorganization plan, viewed the
Executive Office as the institutional realization of administrative management and “the
effective coordination of the tremendously wide-spread federal machinery.” He called
the initial version “a little thing” compared to its later size. It grew under Roosevelt
and “it continued to expand and was further regularized by statute, by appropriation
acts, and by more reorganization plans” during the succeeding years.16
The Executive Office organized by E.O. 8248 consisted of the White House
Office, the Bureau of the Budget, the National Resources Planning Board, the Office
of Government Reports, and the Liaison Office for Personnel Management. It also
provided that, “in the event of a national emergency,” there could be established “such
office for emergency management as the President shall determine.” The Office for
Emergency Management was created by an administrative order on May 25, 1940,
and its functions were further specified in an administrative order of January 7,
1941.17 It subsequently served as a parent unit for a number of subordinate
emergency management bodies.
Presidential Adviser Growth
The creation of the Executive Office of the President contributed to an increase
in the number of presidential advisers for several reasons. First, it provided an enclave
for various agencies that immediately assisted the President. Primary among these
was the White House Office, which was no longer merely the President’s small office
staff, but an agency with hierarchically organized staff positions whose personnel
rapidly expanded during the next few decades.
Second, it counted agencies, such as the Liaison Office for Personnel
Management and the Office for Emergency Management, that were headed by an
administrative assistant—and adviser—to the President on the White House Office
payroll. It also included agencies, such as the Bureau of the Budget (and its Office
of Management and Budget successor), that were headed by leaders for whom
advising the President was a primary responsibility.
Third, senior White House Office staff would come to supervise and direct the
staff of other Executive Office entities: the Assistant to the President for National
Security Affairs would direct the National Security Council staff and the Assistant to
the President for Domestic Policy would direct the Domestic Council staff.
Fourth, in January 1973, President Richard M. Nixon vested his Secretary of the
Treasury and his director of the Office of Management and Budget with dual White
1453 Stat. 813.
153 C.F.R., 1938-1943 Comp., pp. 576-579.
16Louis Brownlow, A Passion for Anonymity: The Autobiography of Louis Brownlow,
Second Half
(Chicago, IL: University of Chicago Press, 1958), p. 416.
173 C.F.R., 1938-1943 Comp., pp. 1320-1321.

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House Office positions, respectively, of Assistant to the President for Economic
Affairs and Assistant to the President for Executive Management. He also vested his
Secretary of Agriculture, Secretary of Health, Education, and Welfare, and Secretary
of Housing and Urban Development with dual White House Office positions,
respectively, of Counsellor to the President for Natural Resources, Counsellor to the
President for Human Resources, and Counsellor to the President for Community
Development.18 Having such dual White House Office titles was viewed as giving
added emphasis, if not authority, to the role of these officials as presidential advisers.
In the aftermath of World War II, Congress statutorily chartered most of the
agencies within the Executive Office of the President. Furthermore, Congress
routinely appropriated funds for the operating expenses of these entities. In 1944,
Congress had adopted an amendment to an appropriation bill that was designed to
restrain the creation of Executive Office agencies by executive order—a frequent
occurrence during 1941-1944. The amendment stated:
After January 1, 1945, no part of any appropriation or fund made available by this
or any other Act shall be allotted or made available to, or used to pay the expenses
of, any agency or instrumentality including those established by Executive order
after such agency or instrumentality has been in existence for more than one year,
if the Congress has not appropriated any money specifically for such agency or
instrumentality or specifically authorized the expenditure of funds by it.19
In 1982, when Title 31 of the United States Code was recodified, the amendment
was repealed and replaced with new language at section 1347.20 The opening
sentence of the new section, which remains as operative law, states: “An agency in
existence for more than one year may not use amounts otherwise available for
obligation to pay its expenses without a specific appropriation or specific
authorization by law.”
With their growing number and influence, senior staff members of the White
House Office and certain other Executive Office agencies began to become of interest
to congressional committees when accountability for policymaking and administrative
or managerial actions prompted requests for their testimony. Some, like War
Production Board chairman Donald M. Nelson,21 who was popularly known as the
“arms czar,” appeared before and cooperated with the Senate Special Committee to
Investigate the National Defense Program (“Truman Committee”) during World War
18Weekly Compilation of Presidential Documents, vol. 9, Jan. 8, 1973, p. 7.
1958 Stat. 387.
2096 Stat. 877 at 925, 1076.
21Established by E.O. 9024 of Jan. 16, 1942, the War Production Board was technically
located within the Office for Emergency Management, an agency within the Executive Office
of the President, but it operated independently as an arm of the President. The chairman of
the board was presidentially appointed without Senate confirmation; eight other specified
government officials were members of the board. The board was terminated by E.O. 9638
of Oct. 4, 1945.

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II to report on and discuss war material production and related coordination matters.22
Others, like Office of War Mobilization director James F. Byrnes, who was sometimes
referred to as the “assistant president,” apparently avoided appearing before
congressional committees during the World War II era, but were in communication
with various individual Members of Congress in leadership positions and served as
liaisons between the President and Congress on a number of war matters.23
Presidential Adviser Testimony
Beginning with the closing years of World War II, examples are provided below
of instances when a presidential adviser—a civilian executive branch official, other
than a member of the traditional Cabinet, who, as part of that official’s responsibilities
and activities, consulted with the President—testified before a congressional
committee or subcommittee. Because these consultations with the President by such
an official may be considered by the President to be privileged and constitutionally
protectable, examples are also provided of instances when invited congressional
committee or subcommittee testimony by a presidential adviser was refused. None
of the examples involves testimony or refusal to testify by a former presidential
adviser.
! Jonathan Daniels, Administrative Assistant to the President, White House
Office, appeared before the Senate Committee on Agriculture and Forestry on
February 28 and March 7 and 8, 1944, to discuss his involvement in the
personnel policy of the Rural Electrification Administration.24
! Wallace H. Graham, Physician to the President, White House Office, appeared
before the Senate Committee on Appropriations on January 13, 1948, to
discuss information to which he might have been privy with regard to the
commodity market.25
! Harry H. Vaughn, Military Aide to the President, White House Office,
appeared before the Senate Committee on Expenditures in Executive
Departments (now Governmental Affairs) on August 30 and 31, 1949, to
22Donald M. Nelson, Arsenal of Democracy: The Story of American War Production (New
York: Harcourt, Brace, 1946), pp. 128, 332; Donald H. Riddle, The Truman Committee: A
Study in Congressional Responsibility
(New Brunswick, NJ: Rutgers University Press,
1964), pp. 36, 70, 83-84.
23Herman Miles Somers, Presidential Agency: The Office of War Mobilization and
Reconversion
(Cambridge, MA: Harvard University Press, 1950), p. 74.
24U.S. Congress, Senate Committee on Agriculture and Forestry, Administration of the Rural
Electrification Act
, hearings, 78th Cong., 2nd sess. (Washington: GPO, 1944), pp. 611ff,
695ff, 721ff.
25U.S. Congress, Senate Committee on Appropriations, Speculation in Commodity Markets,
hearings, 80th Cong., 2nd sess. (Washington: GPO, 1948), pp. 49ff.

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discuss his personal involvement in certain government procurement
contracts.26
! Donald S. Dawson, Administrative Assistant to the President, White House
Office, appeared before the Senate Committee on Banking and Currency on
May 10 and 11, 1951, to discuss allegations he had attempted to “dominate”
the Reconstruction Finance Corporation and influence appointments to that
body.27
! Sherman Adams, Assistant to the President, White House Office, appeared
before the House Committee on Interstate and Foreign Commerce Committee
on June 17, 1958, to discuss his involvement with certain lobbyists.28
! Edward E. David, Jr., Science Adviser to the President, White House Office,
and director, Office of Science and Technology, appeared before the Senate
Committee on Interior and Insular Affairs on June 15, 1971, to discuss the
Nixon Administration’s position on energy policy matters; he appeared again
before the House Committee on Science and Astronautics on June 14, 1972,
to discuss science policy matters relating to Soviet-American cooperation
agreements.29
! Virginia H. Knauer, Special Assistant to the President for Consumer Affairs,
White House Office, and director, Office of Consumer Affairs, appeared before
the House Select Committee on Small Business on June 25, 1971, to discuss
consumer protection and advertising standards.30
! Jerome H. Jaffe, Special Consultant to the President, White House Office, and
director, Special Action Office for Drug Abuse Prevention, appeared before
the House Committee on Interstate and Foreign Commerce on June 28,
26U.S. Congress, Senate Committee on Expenditures in the Executive Departments, Influence
in Government Procurement
, hearings, 81st Cong., 1st sess. (Washington: GPO, 1949), pp.
495ff, 563ff.
27U.S. Congress, Senate Committee on Banking and Currency, Study of Reconstruction
Finance Corporation
, hearings, 82nd Cong., 1st sess. (Washington: GPO, 1951), pp. 1709ff,
1795ff.
28U.S. Congress, House Committee on Interstate and Foreign Commerce, Investigation of
Regulatory Commissions and Agencies
, hearings, 85th Cong., 2nd sess. (Washington: GPO,
1958), p. 3712 ff.
29U.S. Congress, Senate Committee on Interior and Insular Affairs, The President’s Energy
Message
, hearings, 92nd Cong., 1st sess. (Washington: GPO, 1971), p. 12ff; U.S. Congress,
House Committee on Science and Astronautics, U.S.-U.S.S.R. Cooperative Agreements,
hearings, 92nd Cong., 2nd sess (Washington: GPO, 1972), p. 60ff.
30U.S. Congress, House Select Committee on Small Business, Advertising and Small
Business
, hearings, 92nd Cong., 1st sess. (Washington: GPO, 1971), p. 567ff.

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August 2, October 27, and November 8, 1971, to discuss various aspects of
the operations of the Special Action Office.31
! Peter Flanigan, Assistant to the President, White House Office, appeared
before the Senate Committee on the Judiciary on April 20, 1972, during the
course of hearings on the confirmation of Richard Kleindienst as Attorney
General to discuss his involvement in apparent lobbying activities by the
International Telephone and Telegraph Company.32
! Bruce A. Kehrli, Special Assistant to the President, White House Office,
appeared before the Senate Select Committee on Presidential Campaign
Activities on May 17, 1973, to discuss matters related to the Watergate
incident.33
! Patrick J. Buchanan, Special Consultant to the President, White House Office,
appeared before the Senate Select Committee on Presidential Campaign
Activities on September 26, 1973, to discuss matters related to the Watergate
incident.34
! Richard M. Harden, Special Assistant to the President, White House Office,
appeared before the Senate Appropriations Subcommittee on Treasury, Postal
Service, and General Government on March 9, 1977, to discuss funds for the
White House Office; he appeared again before the House Appropriations
Subcommittee on Treasury, Postal Service, and General Government on
March 15, 1977, to discuss these same matters.35
! Rose Mary Woods, Personal Secretary to the President, White House Office,
appeared before the Senate Select Committee on Presidential Campaign
Activities on March 22, 1974, to discuss matters related to the Watergate
incident.36
31U.S. Congress, House Committee on Interstate and Foreign Commerce, Special Action
Office for Drug Abuse Prevention
, hearings, 92nd Cong., 1st sess. (Washington: GPO, 1971),
pp. 171ff, 1037ff, 1443, 1578ff.
32U.S. Congress, Senate Committee on the Judiciary, Nominations of Richard G. Kleindienst
and L. Patrick Gray III
, hearings, 92nd Cong., 2nd sess (Washington: GPO, 1972), p. 1585ff.
33U.S. Congress, Senate Select Committee on Presidential Campaign Activities, Presidential
Campaign Activities of 1972
, hearings, 93rd Cong., 1st sess. (Washington: GPO, 1973), p.
75ff.
34Ibid., p. 3899ff.
35U.S. Congress, Senate Committee on Appropriations, Treasury, Postal Service, and
General Government Appropriations: Fiscal Year 1978
, hearings, 95th Cong., 1st sess.
(Washington: GPO, 1977), p. 1021ff; U.S. Congress, House Committee on Appropriations,
Treasury, Postal Service, and General Government Appropriations for Fiscal Year 1978,
hearings, 95th Cong., 1st sess. (Washington: GPO, 1977), p. 77ff.
36U.S. Congress, Senate Select Committee on Presidential Campaign Activities, Presidential
Campaign Activities of 1972
, hearings, 93rd Cong., 2nd sess. (Washington: GPO, 1974), p.
(continued...)

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! J. Frederick Buzhardt, Special Counsel to the President, White House Office,
appeared before the Senate Select Committee on Presidential Campaign
Activities on April 10 and May 7, 1974, to discuss matters related to the
Watergate incident.37
! Alexander M. Haig, Jr., Staff Coordinator to the President, White House
Office, appeared before the Senate Select Committee on Presidential Campaign
Activities on May 2, and 15, 1974, to discuss matters related to the Watergate
incident.38
! Leonard Garment, Assistant to the President, White House Office, appeared
before the Senate Select Committee on Presidential Campaign Activities on
May 17, 1974, to discuss matters related to the Watergate incident.39
! Lloyd Cutler, Counsel to the President, White House Office, appeared before
the Senate Judiciary Subcommittee to Investigate the Activities of Individuals
Representing the Interests of Foreign Governments on September 10, 1980,
to discuss efforts by the President’s brother, Billy Carter, to influence the
federal government on behalf of the government of Libya.40
! Zbigniew Brzezinski, Assistant to the President for National Security Affairs,
White House Office, appeared before the Senate Judiciary Subcommittee to
Investigate the Activities of Individuals Representing the Interests of Foreign
Governments on September 17, 1980, to discuss efforts by the President’s
brother, Billy Carter, to influence the federal government on behalf of the
government of Libya.41
! Samuel Berger, Deputy Assistant to the President for National Security
Affairs, White House Office, appeared before the Senate Committee on
Foreign Relations on May 3, 1994, to provide a briefing on United States
policy toward Haiti.42
! Samuel Berger, Assistant to the President for National Security Affairs, White
House Office, appeared before the Senate Committee on Governmental Affairs
36(...continued)
10193ff.
37Ibid., pp. 10539ff, 10877ff.
38Ibid., pp. 10849ff, 10998ff.
39Ibid., p. 11053ff.
40U.S. Congress, Senate Committee on the Judiciary, Inquiry into the Matter of Billy Carter
and Libya
, hearings, 96th Cong., 2nd sess. (Washington: GPO, 1981), p. 1195ff.
41Ibid., p. 1339ff.
42Congressional Record, Daily Digest, vol. 140, May 3, 1994, p. D245.

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on September 11, 1997, concerning campaign fund-raising practices in
connection with the 1996 federal election campaign.43
Presidential Adviser Testimony Refused
Beginning with the years immediately after the conclusion of World War II,
examples are provided below of instances when invited congressional committee or
subcommittee testimony by a presidential adviser was refused.
! John R. Steelman, Assistant to the President, White House Office, declined in
March 1948 to appear before a special subcommittee of the House Committee
on Education and Labor.44
! Herbert G. Klein, Director of White House Communications, White House
Office, declined on September 21, 1971, to appear before the Senate Judiciary
Subcommittee on Constitutional Rights.45
! Frederick V. Malek, Special Assistant to the President, White House Office,
and Charles W. Colson, Special Counsel to the President, White House Office,
declined in December 1971 to appear before the Senate Judiciary
Subcommittee on Constitutional Rights.46
! Henry A. Kissinger, Assistant to the President for National Security Affairs,
declined on February 28, 1972, to appear before the Senate Committee on
Foreign Relations.47
43U.S. Congress, Senate Committee on Governmental Affairs, Investigation of Illegal or
Improper Activities in Connection with the 1996 Federal Election Campaign
, hearings, 105th
Cong., 1st sess. (Washington: GPO, 1998), p. 204ff.
44U.S. Congress, House Committee on Education and Labor, Investigation of the GSA Strike,
hearings, 80th Cong., 2nd sess. (Washington: GPO, 1948), pp. 347-353.
45U.S. Congress, Senate Committee on the Judiciary, Freedom of the Press, hearings, 92nd
Cong., 1st and 2nd sess. (Washington: GPO, 1972), p. 1299.
46Ibid., p. 425.
47Congressional Record, vol. 118, Mar. 28, 1972, p. 10471; Kissinger “occasionally talked
on the phone, or privately met, with top legislative leaders, briefed them at pro forma
consultations before major military actions or on the occasion of big diplomatic agreements,
and once in a while informally briefed larger congressional groups. Kissinger would go to the
Hill, incognito as it were, a couple of times a year and he might entertain a congressional
group in the OEOB [Old Executive Office Building] maybe once a year. In some of the
sessions that did occur the Congress was misinformed on key issues ... in the cases of the
Vietnam peace agreement and the first SALT agreements with the Soviets.” John Prados,
Keepers of the Keys: A History of the National Security Council from Truman to Bush (New
York: William Morrow, 1991), p. 309.

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! David Young, Special Assistant to the National Security Council, declined on
April 29, 1972, to appear before the House Government Operations
Subcommittee on Foreign Operations and Government Information.48
Why Presidential Advisers Do Not Regularly Testify
Before Committees

“Although White House aides do not testify before congressional committees on
a regular basis,” it has been observed, “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.”49
Given the comity between the executive and legislative branches, Congress often
elects not to request the appearance of presidential aides.50 When Congress has
requested the appearance of such aides, Presidents and their aides have at times
resisted, asserting the separation of powers doctrine and/or executive privilege.51
These two grounds for declining to comply with congressional requests for the
appearance of presidential aides overlap, and it is sometimes difficult to determine
which argument is being raised.52
48U.S. Congress, House Committee on Government Operations, U.S. Government Information
Policies and Practices—Security Classification Problems Involving (b)(1) of the Freedom
of Information Act
, hearings, 92nd Cong., 2nd sess. (Washington: GPO, 1972), p. 2453.
49Louis Fisher, “White House Aides Testifying before Congress,” Presidential Studies
Quarterly
, vol. 27, Winter 1997, p. 139.
50Ibid., p. 151.
51Ibid., pp. 140-141.
52In two instances during the Carter Administration, when presidential advisers declined to
appear before committees, objections were raised which are difficult to categorize. See Mark
J. Rozell, “Executive Privilege and the Modern Presidents: In Nixon’s Shadow,” Minnesota
Law Review
, vol. 83, May 1999, pp. 1069, 1090-1091, 1092.
Recently, the Bush Administration has resisted congressional attempts to secure the
testimony of Tom Ridge, the Assistant to the President for Homeland Security. The
Administration has invoked the separation of powers doctrine (“Ridge Will Not Give Congress
His Testimony,” USA Today, Mar. 25, 2002, p. 7A), and stated that Ridge would not appear
because he was a presidential adviser, not a Cabinet officer, and because he was not
confirmed by the Senate. The Bush Administration also has contended that the President,
rather than Congress, oversees a presidential adviser who is not confirmed by the Senate. “A
Nation Challenged: Congressional Hearings,” New York Times, Mar. 5, 2002, p. 8;
“Congress, White House Fight Over Ridge Status,” Washington Post, Mar. 21, 2002, p. A33.
However, some Members have argued that Ridge’s position is new and unique, and that he
has influence over multiple departments whose budgets are subject to Congress’s power of the
purse. “Backlash Grows Against White House Secrecy,” Christian Science Monitor, Mar.
25, 2002, p. 3.

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President Richard M. Nixon contended: “Under the doctrine of separation of
powers, the manner in which the President personally exercises his assigned executive
powers is not subject to questioning by another branch of Government. If the
President is not subject to such questioning, it is equally appropriate that members of
his staff not be so questioned, for their roles are in effect an extension of the
Presidency.”53
The separation of powers doctrine was also cited in guidelines for White House
staff issued during the Carter Administration as the basis for the “immunity” of the
staff from appearing before committees.54 The guidelines “articulated the traditional
arguments against compulsory testimony to Congress by White House advisers (i.e.,
need for ‘frank and candid discussions,’ personal advisers are agents of the
President).”55
Executive privilege was invoked during the Nixon Administration when
congressional committees sought the testimony of a White House aide at a Senate
confirmation hearing56 and the testimony of the White House Counsel at Senate
committee hearings on the Watergate incident and related matters.57
Congress’s Right to Executive Branch Information
Congress has a constitutionally rooted right of access to the information it needs
to perform its Article I legislative and oversight functions.58 Generally, a congressional
53Fisher, “White House Aides Testifying before Congress,” p. 140 (quoting Public Papers of
the President
, 1973 (Washington: GPO, 1975), at p. 160). The separation of powers doctrine
was also cited by the Carter Administration as the rationale for White House advisers not
appearing before Congress. Rozell, “Executive Privilege and the Modern Presidents: In
Nixon’s Shadow,” pp. 1091-1092.
54Rozell, “Executive Privilege and the Modern Presidents: In Nixon’s Shadow,” p. 1091 and
note 116 (citing to memorandum of February 8, 1979, from Robert Lipshutz to White House
staff).
55Ibid., p.1091 and note 15 (citing to Lipshutz memorandum).
56Fisher, “White House Aides Testifying before Congress,” p. 140.
57Ibid., pp. 140-141.
58See McGrain v. Daugherty, 273 U.S. 135, 177, 181-82 (1927). In a frequently quoted
passage, the Court explained, at p. 174:
A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or
change; and where the legislative body does not itself possess the requisite
information—which not infrequently is true—recourse must be had to others who
do possess it. Experience has taught that mere requests for such information often
are unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion are essential to obtain what
is needed. All this was true before and when the Constitution was framed and
adopted. In that period the power of inquiry—with enforcing process—was
(continued...)

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committee with jurisdiction over the subject matter, which is conducting an authorized
investigation for legislative or oversight purposes, has a right to information held by
the executive branch in the absence of either a valid claim of constitutional privilege
by the executive or a statutory provision whereby Congress has limited its
constitutional right to information.59
Efforts by congressional committees to obtain information from the executive
branch are sometimes met with assertions of executive privilege.60 No decision of the
Supreme Court resolves the question of whether there are any circumstances in which
the executive branch can refuse to provide information sought by Congress on the
basis of executive privilege, but the caselaw offers some guidance for committees
when the privilege is asserted. In upholding a judicial subpoena in United States v.
Nixon,61 the Supreme Court found a constitutional basis for the doctrine of executive
privilege,62 rejected the President’s contention that the privilege was absolute,63 and
balanced the President’s need for confidentiality and the judiciary’s need for the
materials in a criminal proceeding.64
58(...continued)
regarded and employed as a necessary and appropriate attribute of the power to
legislate—indeed, was treated as inhering in it. Thus there is ample warrant for
thinking, as we do, that the constitutional provisions which commit the legislative
function to the two houses are intended to include this attribute to the end that the
function may be effectively exercised.
See also Watkins v. United States, 354 U.S. 178, 200 note 33 (1957). For a more detailed
discussion of the constitutional and statutory authority for congressional access to information
and for an examination of related issues, see CRS Report RL30240, Congressional Oversight
Manual
.
59For a detailed review of Congress’s right of access to information from the executive, see
CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and
Procedure of Congressional Inquiry
, by Morton Rosenberg.
60For a more detailed analysis of the doctrine of executive privilege in the context of
congressional investigations, see CRS Report RL30319, Presidential Claims of Executive
Privilege: History, Law, Practice and Recent Developments
, by Morton Rosenberg.
61418 U.S. 683 (1974). The subpoena, issued to the President at the request of the Watergate
Special Prosecutor, demanded tape recordings of confidential conversations between the
President and his advisors. Ibid., p. 703.
62The Court found the basis in “the supremacy of each branch within its own assigned area
of constitutional duties” and in the separation of powers. Ibid., pp. 705, 706. See also ibid.,
pp. 708, 711.
63Ibid., p. 708. The Court considered presidential communications to be “presumptively
privileged” (ibid., p. 705). Because the privilege is not absolute, judicial review is available.
Ibid., 708.
64Ibid., p. 707. The Court resolved the “competing interests” so as to preserve “the essential
functions of each branch.” Ibid. Under the circumstances of the case, the judicial need for
the tapes outweighed the President’s “generalized interest in confidentiality ....” Ibid., p. 713.
The Court was careful to limit the scope of its decision (ibid., p. 712 n.19), noting that it was
(continued...)

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A distinction has been recognized by the courts between two aspects of
executive privilege—the presidential communications privilege and the deliberative
process privilege.65 The former has a constitutional basis in the separation of powers
doctrine, relates to “direct decisionmaking by the President,” and concerns
“quintessential and non-delegable powers,”66 whereas the latter “is primarily a
common law privilege” applicable “to decisionmaking of executive officials
generally.”67 The former applies to entire documents (including factual material) and
“covers final and post-decisional materials as well as pre-deliberative ones.”68 The
latter covers predecisional and deliberative materials, not “purely factual [material],
unless the material is so inextricably intertwined with the deliberative sections of
documents that its disclosure would inevitably reveal the government’s
64(...continued)
not addressing a case involving a congressional demand for information or a case involving
the President’s interest in preserving state secrets. The Court appeared to be willing to accord
greater protection to “military, diplomatic, or sensitive national security secrets” (ibid., p.
706) than it was to a President’s communications with his advisers.
United States v. Nixon did not involve a presidential claim of executive privilege in
response to a congressional subpoena. In Senate Select Committee on Presidential
Campaign Activities
v. Nixon, 498 F.2d 725 (D.C.Cir. 1974), the court reviewed the
President’s assertion of executive privilege as grounds for not complying with a committee
subpoena for tape recordings of conversations between the President and his staff. The court
found that “the presumption that the public interest favors confidentiality [in presidential
communications] can be defeated only by a strong showing of need by another institution of
government ....” Ibid., p. 730. Under the unusual circumstances of that case, the court found
that the legislative and oversight needs of the committee were insufficient to overcome the
claim of privilege. Ibid., p. 732.
65In re Sealed Case (Espy), 121 F.3d 729 (D.C.Cir. 1997). For an analysis of Espy, see
Rozell, “Executive Privilege and the Modern Presidents: In Nixon’s Shadow,” pp. 1119-1120.
66Espy, 121 F.3d at 745, 752. It has been held that the presidential communications privilege
“extends to communications authored by or solicited and received by presidential advisers”
when “preparing advice for the President,” “even when these communications are not made
directly to the President.” Ibid., pp. 751-752, 762. However, to limit the privilege to its
purpose (protecting “the confidentiality of the President’s decisionmaking process”), it is
restricted to White House advisers with “operational proximity” to the President. Ibid., p.
752.
At issue in Espy was a grand jury subpoena for documents pertaining to an investigation
by the White House Counsel. The Espy court emphasized that its “opinion should not be read
as in any way affecting the scope of the [presidential communications] privilege in the
congressional-executive context ....” Ibid., p. 753. Furthermore, the court in Espy noted that
its “determination of how far down into the executive branch the presidential communications
privilege goes” was limited to the circumstances of the case. Ibid.
Arguably, the privilege must be asserted by the President personally. Ibid., p. 745 note
16 (collecting cases).
67Ibid., p. 745.
68Ibid.

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deliberations.”69 Both privileges are qualified.70 When either privilege is asserted,
the court will balance the public interests involved and assess the need of the party
seeking the privileged information.71
The range of executive branch officials who may appropriately assert executive
privilege before congressional committees, and the circumstances under which they
may do so, remains unresolved by the courts,72 and is a matter that may be determined
by case-by-case accommodation between the political branches.73 Some guidance in
this regard was offered by Chief Justice William Rehnquist, when he was Assistant
Attorney General in the Nixon Administration. Rehnquist distinguished between
“those few executive branch witnesses whose sole responsibility is that of advising the
President,” who “should not be required to appear [before Congress] at all, since all
of their official responsibilities would be subject to a claim of privilege,” and “the
executive branch witness ... whose responsibilities include the administration of
departments or agencies established by Congress, and from whom Congress may quite
properly require extensive testimony,” subject to “appropriate” claims of privilege.74
Following a review of Rehnquist’s statement, precedents and practice concerning
congressional access to executive branch information (particularly, the testimony of
presidential advisers), and constitutional issues,75 it is possible to suggest some key
legal factors that together may determine whether a congressional request for the
testimony of one who advises the President will be honored. (1) In the view of the
executive, the few individuals whose sole duty is to advise the President should never
be required to testify because all of their duties are protected by executive privilege.
(2) The executive has conceded that an official who has operational functions in a
department or agency established by law may be required to testify, although at times
such an official may invoke executive privilege. (3) Congress may increase its
leverage if the position of the potential witness is subject to Senate confirmation.
69Ibid., p. 737.
70Ibid., p. 746. The presidential communications privilege is more difficult to overcome,
requiring the party seeking the information to “provide a focused demonstration of need ....”
Ibid. “[T]he [deliberative process] privilege disappears altogether when there is any reason
to believe government misconduct occurred .... [A] party seeking to overcome the presidential
privilege seemingly must always provide a focused demonstration of need, even when there
are allegations of misconduct by high-level officials.” Ibid.
71Ibid.
72Cf. In re Lindsey, 158 F.3d 1263, 1277-78 (D.C.Cir.) (dictum), cert denied sub nom. Office
of the President
v. Office of Independent Counsel, 525 U.S. 996 (1998).
73See Dawn Johnsen, “Executive Privilege Since United States v. Nixon: Issues of Motivation
and Accommodation,” vol. 83, Minnesota Law Review, May 1999, p. 1127ff.
74U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Separation of Powers,
Executive Privilege: The Withholding of Information by the Executive, hearings, 92nd Cong.,
1st sess. (Washington: GPO, 1971), p. 427 (hereafter, Rehnquist statement).
75See generally Donald S. Onley, “Treading on Sacred Ground: Congress’s Power to Subject
White House Advisers to Senate Confirmation,” vol. 37, William. & Mary Law Review,
Spring 1996, p. 1183ff.

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Procedure for Obtaining Executive Branch Testimony
A congressional committee may request (informally, or by a letter from the
committee chair, perhaps co-signed by the ranking Member) or demand (pursuant to
subpoena)76 the testimony of a presidential adviser. However, Congress may
encounter legal and political problems in attempting to enforce a subpoena to a
presidential adviser.
Conflicts concerning congressional requests or demands for executive branch
testimony or documents often involve extensive negotiations, and may be resolved by
some form of compromise as to, inter alia, the scope of the testimony or information
to be provided to Congress.77 If the executive branch fails to comply with a
committee subpoena, and if negotiations do not resolve the matter, the committee
may employ Congress’s inherent contempt authority (involving a trial at the bar of the
Senate or House) or statutory criminal contempt authority in an effort to obtain the
needed information.78 Both of these procedures are somewhat cumbersome, and their
use may not result in the production of the information that is sought.79
When faced with a refusal by the executive branch to comply with a demand for
information, Congress has several alternatives to inherent and statutory contempt,
although these alternatives are not without their own limitations.80 One approach is
to seek declaratory or other relief in the courts. Previous attempts to seek judicial
resolution of inter-branch conflicts over information access issues have encountered
procedural obstacles and have demonstrated the reluctance of the courts to resolve
76Standing committees of both the Senate (Rule XXVI(1)) and the House (Rule XI, cl. 2(m))
have subpoena power.
77See, e.g., Peter M. Shane, “Legal Disagreement and Negotiation in a Government of Laws:
The Case of Executive Privilege Claims Against Congress,” vol. 71, Minnesota Law Review
(1987, p. 461ff. See also Fisher, “White House Aides Testifying before Congress,” p. 139
(where presidential advisers decline to testify, they might instead meet with committee chair
or respond to committee deposition). Recently, in response to congressional attempts to
secure the testimony of Ridge (see note 52, supra), Ridge offered to brief Members privately,
but some Members objected. Subsequently, Ridge offered to brief Members of both the
Senate and the House informally, but in public. Ridge argued that his proposal would satisfy
congressional needs but “avoid the setting of a precedent that could undermine the
constitutional separation of powers and the longstanding traditions and practices of both
Congress and the executive branch.” “A Nation Challenged: The Security Director,” New
York Times
, Mar. 26, 2002, p. 13.
78Both the inherent contempt power and the statutory procedure (2 U.S.C. 192, 194) are
outlined in CRS Report RL30240, Congressional Oversight Manual, pp. 36-37. The
statutory civil contempt procedure which may be used by Senate committees is not applicable
in the case of an executive branch official. 28 U.S.C. 1365.
79See Randall K. Miller, “Congressional Inquests: Suffocating the Constitutional Prerogative
of Executive Privilege,” vol. 81, Minnesota Law Review, February 1997, pp. 631, 658.
80For a recent overview and evaluation of the alternatives, see J. Richard Broughton, “Paying
Ambition’s Debt: Can the Separation of Powers Tame the Impetuous Vortex of Congressional
Investigations?,” vol. 21, Whittier Law Review, 2000, pp. 797, 825-832.

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sensitive separation of powers issues.81 Other approaches may include, inter alia,
appropriations riders, impeachment, and a delay in the confirmation of presidential
appointees.82
In addition to the options generally available in the event of a refusal by the
executive to provide information sought by Congress, when a presidential adviser who
is not serving in a department or agency declines to testify before a committee,
Congress might wish to establish the entity in which he serves by law, and subject the
head of the entity to Senate confirmation.83
Conclusion
(1) Legal and policy factors may explain why presidential advisers do not
regularly testify before committees. (2) Generally, a congressional committee with
jurisdiction over the subject matter, which is conducting an authorized investigation
81Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); United States v. AT&T,
551 F.2d 384 (D.C. Cir. 1976) and 567 F.2d 121 (D.C. Cir. 1977) (second opinion); United
States
v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
82See, e.g., Broughton, “Paying Ambition’s Debt: Can the Separation of Powers Tame the
Impetuous Vortex of Congressional Investigations?” pp. 831-835; Louis Fisher,
Constitutional Conflicts between Congress and the President, 4th ed (Lawrence, KS:
University Press of Kansas, 1997), pp. 183-84. In response to the resistance of the Bush
Administration to congressional attempts to obtain the testimony of Ridge (see note 52,
supra), it has been reported that the House Appropriations Committee may delay action on
the appropriation for the Executive Office of the President. “Panel Ties Funding to Ridge
Testimony,” Washington Times, Mar. 22, 2002, pp. A1, A14.
83As discussed above (see p. 16, supra), an executive branch official who administers a
department or agency established by law is generally expected to testify before committees,
in contrast to an individual whose sole responsibility is to advise the President. Some
presidential advisers are in units of the Executive Office of the President established by law,
and are also subject to confirmation by the Senate. See, e.g., 15 U.S.C. 1023 (Council of
Economic Advisors); 42 U.S.C. 4321, 4372 (Office of Environmental Quality); 42 U.S.C.
6611, 6612 (Office of Science and Technology Policy); 31 U.S.C. 501, 502 (Office of
Management and Budget (OMB)).
For a brief overview of objections of the Nixon Administration to legislation subjecting
the Director of OMB to Senate confirmation, see Onley, “Treading on Sacred Ground:
Congress’s Power to Subject White House Advisers to Senate Confirmation,” pp. 1183-1184.
Recently, the Bush Administration has resisted congressional attempts to have Tom
Ridge, the Director of the Office of Homeland Security, testify. See note 52, supra. The
Office of Homeland Security was established within the Executive Office of the President
pursuant to E.O. 13228 issued on Oct. 8, 2001. Federal Register, vol. 66, Oct. 10, 2001, pp.
51812-51817. Even before Congress requested Ridge’s testimony, legislation had been
introduced to create an office with homeland security functions. See, e.g., S. 1449, 107th
Cong. (to establish within the White House a National Office for Combating Terrorism, with
a director subject to Senate confirmation); S. 1534, 107th Cong. (to establish a “Department
of National Homeland Security,” with the Secretary subject to Senate confirmation). Upon
the introduction of S. 1534, Senator Joseph Lieberman observed that the Secretary “will be
accountable to the Congress and the American people.” Congressional Record, daily edition,
vol. 147. Oct. 10, 2001, p. S10646.

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for legislative or oversight purposes, has a right to information held by the executive
branch in the absence of either a valid claim of constitutional privilege by the
executive or a statutory provision whereby Congress has limited its constitutional
right to information. (3) A committee may request or demand the testimony of a
presidential adviser. Legal mechanisms available for enforcing congressional
subpoenas to the executive branch may fail to provide the committee with the desired
information. (4) Negotiations may result in the production of at least some of the
information sought.