On Wednesday, former White House communications director Hope Hicks testified in a closed-door session before the House Judiciary Committee as part of its investigation into presidential obstruction of justice. On Thursday, the committee released the full transcript of that testimony. A quick review reveals that the committee members’ questioning was an exercise in futility and absurdity, one that went well beyond even the most pointless congressional hearings many Americans have become accustomed to tolerating in recent years.
One particular passage demonstrates this farcicality perfectly. In the exchange, committee chairman Jerry Nadler attempts to ask Hicks about whether former Trump campaign manager Corey Lewandowski was an administration employee during his June 2017 visit to the White House that was documented in the Mueller report, a matter of public record. (He was not.) Deputy counsel to the president Michael Purpura objected to this question, because “[u]nder the terms of the absolute immunity described in [White House counsel Pat] Cipollone’s letter, [Hicks] may not speak about anything that occurred during the time of her employment in the White House as a close adviser to the President.”
The questioning deteriorated from there:
Chairman Nadler. Did a war break out between Israel and Egypt during that time period?
Mr. Purpura. Same objection.
Chairman Nadler. Same objection. Well, I’ll ask these questions for the record so you can object for the record. Do you recall if you knew why Mr. Lewandowski was at the White House that day?
Mr. Purpura. Objection.
Chairman Nadler. Were you present for any portion of that meeting?
Mr. Purpura. Objection.
Chairman Nadler. Do you know if anyone else was present for any portions of that meeting?
Mr. Purpura. Objection.
Chairman Nadler. Have you discussed that meeting with anyone—do you know if anyone else was present for any portion of that meeting?
Mr. Purpura. Objection.
Chairman Nadler. Have you discussed that meeting with anyone outside of the White House?
Mr. Purpura. Objection.
As Purpura noted, prior to Hicks’ testimony, the White House had asserted an “absolute immunity” that it said would prevent her from testifying about anything she did during her time working for the administration. The White House had previously asserted such absolute immunity to block the testimony of key obstruction of justice witness and former White House counsel Don McGahn, as well as a broad executive privilege to prevent the release of the full Mueller report and all underlying evidence.
Previous presidents have asserted absolute immunity to prevent aides from testifying to Congress based on a principle that advisers act as an extension of the president and are therefore afforded similar rights to private deliberations under executive privilege. But no court has ever found that such absolute immunity allows an administration’s aides to refuse to testify. In a 2008 district court ruling, the only judge to ever decide the issue rejected an assertion of absolute immunity by former White House counsel Harriet Miers. But the case was never appealed, so it was never decided by an appellate court and is not a matter of settled precedent. That absence of precedent led the Obama administration to argue in a 2014 Office of Legal Counsel memo that its advisers maintained absolute immunity. Now Trump is holding that same position to attempt to block all potential testimony from current and former administration officials about his abuses of power.
On Thursday, with the release of the Hicks testimony, the public had a chance to see how ridiculous this absolute privilege claim is in action. The words object, objects, or objection appear 228 times in the 273-page transcript, with Purpura issuing the vast majority of the objections. For comparison, the word Mueller appears 53 times, and the word Trump appears only slightly more than object, at 291 times.
Again, the doctrine undergirding all those objections is legally controversial, even as it has been maintained by presidents of both parties. In a separate House Judiciary Committee hearing on Thursday, the Republican-selected witness repeatedly rejected the constitutional doctrine of absolute immunity, arguing that those in Hicks’ position should be compelled to testify fully. That Republican-selected witness, University of Virginia School of Law professor Saikrishna Prakash, said the administration’s absolute immunity claim should be knocked down.
House Judiciary Committee Chairman Jerry Nadler has indicated he is going to challenge the “absolute immunity” claim in court, but it could be a lengthy litigation process, and he would have a much stronger hand if he were to open an official impeachment inquiry. Speaker of the House Nancy Pelosi has continued to refuse to allow Nadler to open such an inquiry, citing political considerations, which has rendered and will continue to render any attempted fact finding basically toothless—and ultimately, pointless.
