Finally, the Court turns to DOJ’s contention that, quite apart from the accepted ability of a President to invoke executive privilege to protect confidential information during the course of aides’ testimony before Congress, as a matter of law, it is the President who controls whether such aide provides any testimony whatsoever. During the motions hearing, DOJ’s counsel repeatedly emphasized that the power to invoke absolute testimonial immunity with respect to current and former senior-level aides belongs to the President. (See, e.g., Hr’g Tr. at 42:15–16 (“[T]he President owns the privilege here. So he is the owner of Mr. McGahn’s absolute immunity from compulsion[.]”), 43:4–6 (“[T]he President owns the privilege as to former officials with the same vigor with which he owns it to current officials.”), 125:5 (maintaining that immunity is “the President’s to assert”).) And when asked whether this power of the Executive is limited to such aides’ communications with Congress in particular, or also extends to preventing his aides from speaking to anyone else (e.g., the media) even after their departure from the White House, counsel indicated that while the Executive branch has “not taken a position on that,” it was “definitely not disclaiming that.” (Id. at 43:12–16.) This single exchange—which brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life—highlights the startling and untenable implications of DOJ’s absolute testimonial immunity argument, and also amply demonstrates its incompatibility with our constitutional scheme.
Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.