Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees ( 2019 )

(Slip Opinion)
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 Exec-
utive 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.
May 23, 2019
MEMORANDUM FOR THE ATTORNEY GENERAL
AND THE COUNSEL TO THE PRESIDENT
On April 2, 2019, the House Committee on Oversight and Reform (the
“Committee”) issued subpoenas seeking to compel testimony in two sep-
arate investigations from two witnesses: John Gore, Principal Deputy
Assistant Attorney General for the Department’s Civil Rights Division,
and Carl Kline, the former head of the White House Personnel Security
Office. The Committee sought to question both witnesses about matters
that potentially involved communications that were protected by execu-
tive privilege. Although the Committee’s Rule 15(e) permitted the wit-
nesses to be accompanied at the depositions by private counsel, who
would owe duties to the witnesses themselves, the rule purported to bar
the presence of agency counsel, who would represent the interests of the
Executive Branch. 1 Despite some efforts at accommodation on both sides,
the Committee continued to insist that agency counsel could not attend the
witnesses’ depositions. In response to your requests, we advised that a
congressional committee may not constitutionally compel an executive
branch witness to testify about potentially privileged matters while de-
priving the witness of the assistance of agency counsel. Based upon our
advice, Mr. Gore and Mr. Kline were directed not to appear at their depo-
1 Tracking the text of the Committee’s rule, which excludes “counsel . . . for agencies,”
we speak in this opinion of “agency counsel,” but our analysis applies equally to all
counsel representing the interests of the Executive Branch, no matter whether the witness
works for an “agency,” as defined by statute. See, e.g., Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 156 (1980) (holding that the Office of the President
is not an “agency” for purposes of the Freedom of Information Act).
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Opinions of the Office of Legal Counsel in Volume 43
sitions without agency counsel. This memorandum explains the basis for
our conclusions.
When this issue last arose, during the Obama Administration, this Of-
fice recognized “constitutional concerns” with the exclusion of agency
counsel, because such a rule “could potentially undermine the Executive
Branch’s ability to protect its confidentiality interests in the course of the
constitutionally mandated accommodation process, as well as the Presi-
dent’s constitutional authority to consider and assert executive privilege
where appropriate.” Authority of the Department of Health and Human
Services to Pay for Private Counsel to Represent an Employee Before
Congressional Committees, 41 Op. O.L.C. __, *5 n.6 (Jan. 18, 2017)
(“Authority to Pay for Private Counsel ”). This Office, however, was
asked to address only the retention of private counsel for a deposition and
thus did not evaluate these constitutional concerns.
Faced squarely with the constitutional question here, we concluded that
Congress may not compel an executive branch witness to appear without
agency counsel and thereby compromise the President’s constitutional
authority to control the disclosure of privileged information and to super-
vise the Executive Branch’s communications with congressional entities.
The “Executive Branch’s longstanding general practice has been for agen-
cy attorneys to accompany” agency employees who are questioned by
congressional committees conducting oversight inquiries. Id. at *3. When
an agency employee is asked to testify about matters within the scope of
his official duties, he is necessarily asked to provide agency information.
The agency must have the ability to protect relevant privileges and to
ensure that any information provided on its behalf is accurate, complete,
and properly limited in scope. Although private counsel may indirectly
assist the employee in protecting privileged information, counsel’s obliga-
tion is to protect the personal interests of the employee, not the interests
of the Executive Branch. The Committee, therefore, could not constitu-
tionally bar agency counsel from accompanying agency employees called
to testify on matters within the scope of their official duties. In light of
this constitutional infirmity, we advised that the Committee subpoenas
purporting to require the witnesses to appear without agency counsel were
legally invalid and not subject to civil or criminal enforcement.
I.
Congress generally obtains the information necessary to perform its
legislative functions by making requests and issuing subpoenas for docu-
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Attempted Exclusion of Agency Counsel from Congressional Depositions
ments and testimony through its organized committees. See, e.g., Baren-
blatt v. United States, 360 U.S. 109, 116 (1959); Watkins v. United States,
354 U.S. 178, 187–88 (1957). Committees typically seek the information
they need from the Executive Branch first by requesting documents and
sometimes voluntary interviews. Following such requests, a committee
may proceed with a hearing at which Members of Congress ask questions
of the witness, and such a hearing is usually open to the public. When
executive branch employees appear—either at a voluntary interview or a
hearing—agency counsel or another agency representative traditionally
accompany them. See, e.g., Representation of White House Employees, 4B
Op. O.L.C. 749, 754 (1980).
Congressional committees have only rarely attempted to collect infor-
mation by compelling depositions conducted by committee staff. See
Jay R. Shampansky, Cong. Research Serv., 95-949 A, Staff Depositions in
Congressional Investigations 1–2 & n.3 (updated Dec. 3, 1999) (“Staff
Depositions”). Historically, these efforts were confined to specific inves-
tigations that were limited in scope. See, e.g., Inquiry into the Matter of
Billy Carter and Libya: Hearings Before the Subcomm. to Investigate the
Activities of Individuals Representing the Interests of Foreign Govern-
ments of the S. Comm. on the Judiciary, 96th Cong. 1708–10, 1718–27,
1742 (1980) (discussing issues related to Senate resolution authorizing
depositions by staff members). Recently, however, committees have made
increasing use of depositions, and the House of Representatives has
adopted an order in the current Congress that permits depositions to go
forward without the presence of any Member of Congress. See H. Res. 6,
116th Cong. § 103(a)(1) (2019).
Although executive branch witnesses have sometimes appeared and
testified at staff depositions, the Executive Branch has frequently objected
to the taking of compelled testimony by congressional staff members.
These objections have questioned whether committees may properly
authorize staff to depose senior executive officials, whether Members of
Congress must be present during a committee deposition, and whether the
procedures for such depositions adequately protect the President’s ability
to protect privileged executive branch information. See, e.g., H. Comm.
on International Relations, 104th Cong., Final Report of the Select Sub-
committee to Investigate the United States Role in Iranian Arms Transfers
to Croatia and Bosnia 54–56 (Comm. Print 1997) (summarizing the White
House’s position that its officials would not “be allowed to sit for staff
depositions, because to do so would intrude upon the President’s ‘deliber-
ative process’”); see also Letter for Henry Waxman, Chairman, Commit-
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Opinions of the Office of Legal Counsel in Volume 43
tee on Oversight and Government Reform, U.S. House of Representatives,
from Dinah Bear, General Counsel, Council on Environmental Quality
at 1 (Mar. 12, 2007) (“Allowing Committee staff to depose Executive
Branch representatives on the record would be an extraordinary formali-
zation of the congressional oversight process and would give unelected
staff powers and authorities historically exercised only by Members of
Congress participating in a public hearing.”); Letter for Henry A. Wax-
man, Chairman, Committee on Oversight and Government Reform, U.S.
House of Representatives, from Stephanie Daigle, Associate Administra-
tor, U.S. Environmental Protection Agency at 2 (Apr. 12, 2007) (“[T]he
use of formal interviews by Committee counsel, transcribed by a court
reporter, rather than the customary informal briefings, have the potential
to be overly adversarial and to intimidate Agency staff.”). No court has
addressed whether Congress may use its oversight authority to compel
witnesses to appear at staff depositions conducted outside the presence of
any Member of Congress. Courts have recognized, however, that Con-
gress’s ability to “delegate the exercise of the subpoena power is not
lightly to be inferred” because it is “capable of oppressive use.” Shelton v.
United States, 327 F.2d 601, 606 n.14 (D.C. Cir. 1963); cf. United States
v. Bryan, 339 U.S. 323, 332 (1950) (concluding, in the context of a crimi-
nal contempt-of-Congress citation, that “respondent could rightfully have
demanded attendance of a quorum of the Committee and declined to
testify or to produce documents so long as a quorum was not present”).
The question we address here arose out of the Committee’s effort to
compel two executive branch witnesses, Mr. Gore and Mr. Kline, to
appear at depositions subject to the restrictions of Committee Rule 15(e).
In relevant part, Rule 15(e) provides as follows:
No one may be present at depositions except members, committee
staff designated by the Chair of the Committee or the Ranking Mi-
nority Member of the Committee, an official reporter, the witness,
and the witness’s counsel. Observers or counsel for other persons, or
for agencies under investigation, may not attend.
H. Comm. on Oversight & Reform, 116th Cong., Rule 15(e). In both in-
stances, the Committee sought executive branch information, including
matters that implicated executive privilege, but it asserted the authority to
compel the witness to answer questions without the assistance of agency
counsel. We summarize here the efforts at accommodation made by the
Executive Branch and the Committee in connection with the disputes.
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Attempted Exclusion of Agency Counsel from Congressional Depositions
A.
The Committee subpoenaed Mr. Gore to testify about privileged mat-
ters concerning the Secretary of Commerce’s decision to include a citi-
zenship question on the 2020 United States Census. On March 7, 2019,
Mr. Gore voluntarily appeared before the Committee, with the assistance
of Department counsel, for a transcribed interview on the same topic. Mr.
Gore answered all of the Committee’s questions, except for those that
were determined by Department counsel to concern confidential delibera-
tions within the Executive Branch. The Department’s interest in protect-
ing this subject matter was particularly acute because the Secretary of
Commerce’s decision was subject to active litigation, and those challeng-
es were pending in the Supreme Court. See Dep’t of Commerce v. New
York, No. 18-966 (U.S.) (argued Apr. 23, 2019). Some of the information
sought by the Committee had previously been held by a federal district
court to be protected by the deliberative process privilege, as well as other
privileges, in civil discovery.
On April 2, the Committee served Mr. Gore with a deposition subpoena
in an effort to compel responses to the questions that he did not answer
during his March 7 interview. Committee staff advised that Committee
Rule 15(e) required the exclusion of the agency counsel who had previ-
ously represented Mr. Gore. On April 9, the Department explained that
the Committee’s effort to bar Department counsel would unconstitutional-
ly infringe upon the prerogatives of the Executive Branch. See Letter for
Elijah E. Cummings, Chairman, Committee on Oversight and Reform,
U.S. House of Representatives, from Stephen E. Boyd, Assistant Attorney
General, Office of Legislative Affairs at 2–3 (Apr. 9, 2019). Because the
Committee sought information from Mr. Gore relating to his official
duties, the Department explained that agency counsel must be present to
ensure appropriate limits to Mr. Gore’s questioning, to ensure the accura-
cy and completeness of information provided on behalf of the Depart-
ment, and to ensure that a Department official was not pressed into reveal-
ing privileged information. Id. The Attorney General determined that Mr.
Gore would not appear at the deposition without the assistance of De-
partment counsel. Id. at 3.
On April 10, 2019, the Committee responded by disputing the Depart-
ment’s constitutional view, contending that Committee Rule 15(e) had
been in place for more than a decade and reflected an appropriate exercise
of Congress’s authority to determine the rules of its own proceedings. See
Letter for William P. Barr, Attorney General, from Elijah E. Cummings,
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Opinions of the Office of Legal Counsel in Volume 43
Chairman, Committee on Oversight and Reform, U.S. House of Repre-
sentatives at 2–3 (Apr. 10, 2019) (“April 10 Cummings Letter”) (citing
U.S. Const. art. I, § 5, cl. 2). The Committee advised that Mr. Gore could
be accompanied by his private counsel, id. at 2, and offered to allow
Department counsel to wait in a separate room during the deposition, id.
at 3. The Committee stated that, if necessary, Mr. Gore could request a
break during the deposition to consult with Department counsel. Id.
On April 24, 2019, the Department reiterated its constitutional objec-
tion and explained that the Committee’s proposed accommodation would
not satisfy the Department’s need to have agency counsel assist Mr. Gore
at the deposition. See Letter for Elijah E. Cummings, Chairman, Commit-
tee on Oversight and Reform, U.S. House of Representatives, from Ste-
phen E. Boyd, Assistant Attorney General, Office of Legislative Affairs
at 1 (Apr. 24, 2019). Mr. Gore therefore did not appear on the noticed
deposition date.
B.
The Committee subpoenaed Mr. Kline to testify concerning the activi-
ties of the White House Personnel Security Office in adjudicating security
clearances during his time as head of the Office. On March 20, 2019, the
current White House Chief Security Officer, with representation by the
Office of Counsel to the President (“Counsel’s Office”), briefed the
Committee’s staff on the White House security clearance process for
nearly 90 minutes and answered questions from a Member of Congress
and staff. On April 1, 2019, the White House offered to have Mr. Kline
appear voluntarily before the Committee for a transcribed interview.
Instead, the Committee subpoenaed Mr. Kline on April 2, 2019. The
Committee indicated that Committee Rule 15(e) would bar any repre-
sentative from the Counsel’s Office from attending Mr. Kline’s deposi-
tion. On April 18, 2019, the Counsel’s Office advised the Committee that
a representative from that office must attend to represent the White
House’s interests in any deposition of Mr. Kline. See Letter for Elijah E.
Cummings, Chairman, Committee on Oversight and Reform, U.S. House
of Representatives, from Michael M. Purpura, Deputy Counsel to the
President at 2 (Apr. 18, 2019). The Counsel’s Office relied on the views
concerning the exclusion of agency counsel that were articulated by the
Department in its April 9, 2019 letter to the Committee. Id. The Counsel’s
Office explained that the President has the authority to raise privilege
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Attempted Exclusion of Agency Counsel from Congressional Depositions
concerns at any point during a deposition, and that this could occur only if
an attorney from the Counsel’s Office accompanied Mr. Kline. Id.
On April 22, 2019, the Committee responded, stating, as it had in cor-
respondence concerning Mr. Gore, that its rules were justified based upon
Congress’s constitutional authority to determine the rules of its proceed-
ings. See U.S. Const. art. I, § 5, cl. 2. The Committee asserted that Com-
mittee Rule 15(e) had been enforced under multiple chairmen. See Letter
for Pat Cipollone, Counsel to the President, from Elijah E. Cummings,
Chairman, Committee on Oversight and Reform, U.S. House of Repre-
sentatives at 3 (Apr. 22, 2019) (“April 22 Cummings Letter”). The Com-
mittee advised that Mr. Kline could be accompanied by his private coun-
sel, and, as with Mr. Gore, offered to permit attorneys from the Counsel’s
Office to wait outside the deposition room in case Mr. Kline requested to
consult with them during the deposition. Id.
In an April 22, 2019 reply, the Counsel’s Office explained that, in light
of the Committee’s decision to apply Rule 15(e), the Acting Chief of
Staff to the President had directed Mr. Kline not to attend the deposition
for the reasons stated in the April 18, 2019 letter. See Letter for Elijah
Cummings, Chairman, Committee on Oversight and Reform, U.S. House
of Representatives, from Michael M. Purpura, Deputy Counsel to the
President at 1 (Apr. 22, 2019). The Committee and the Counsel’s Office
subsequently agreed to a voluntary transcribed interview of Mr. Kline
with the participation of the Counsel’s Office. Mr. Kline was interviewed
on May 1, 2019. He answered some of the Committee’s questions, but at
the direction of the representative from the Counsel’s Office, he did not
address particular matters implicating privileged information.
II.
Under our constitutional separation of powers, both Congress and the
Executive Branch must respect the legitimate prerogatives of the other
branch. See, e.g., INS v. Chadha, 462 U.S. 919, 951 (1983) (“The hydrau-
lic pressure inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable objectives, must
be resisted.”); United States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127,
130–31 (D.C. Cir. 1977) (“[E]ach branch should take cognizance of an
implicit constitutional mandate to seek optimal accommodation through
a realistic evaluation of the needs of the conflicting branches in the par-
ticular fact situation.”). Here, the Committee sought to apply Committee
Rule 15(e) to compel executive branch officials to testify about poten-
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Opinions of the Office of Legal Counsel in Volume 43
tially privileged matters while barring agency counsel from the room. We
concluded that the Committee could not constitutionally compel such an
appearance for two reasons. First, the exclusion of agency counsel impairs
the President’s ability to exercise his constitutional authority to control
privileged information of the Executive Branch. Second, the exclusion
undermines the President’s ability to exercise his constitutional authority
to supervise the Executive Branch’s interactions with Congress.
A.
Committee Rule 15(e) unconstitutionally interferes with the President’s
right to control the disclosure of privileged information. Both the Su-
preme Court and this Office have long recognized the President’s “consti-
tutional authority to protect national security and other privileged infor-
mation” in the exercise of the President’s Article II powers. Authority
of Agency Officials to Prohibit Employees from Providing Information
to Congress, 28 Op. O.L.C. 79, 80 (2004) (“Authority of Agency Offi-
cials”); see Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (the
President’s “authority to classify and control access to information bear-
ing on national security . . . flows primarily from this constitutional in-
vestment of power in the President [as Commander in Chief ] and exists
quite apart from any explicit congressional grant”); United States v.
Nixon, 418 U.S. 683, 705–06 (1974) (“Certain powers and privileges flow
from the nature of enumerated powers; the protection of the confidentiali-
ty of Presidential communications has similar constitutional underpin-
nings.”). That authority is “not limited to classified information, but
extend[s] to all . . . information protected by [executive] privilege,” in-
cluding presidential and attorney-client communications, attorney work
product, deliberative process information, law enforcement files, and
national security and foreign affairs information. Authority of Agency
Officials, 28 Op. O.L.C. at 81 (emphasis added). 2 Protection of such
information is “fundamental to the operation of Government and inextri-
2 Although some of these components, such as deliberative process information, paral-
lel aspects of common law privileges, each falls within the doctrine of executive privi-
lege. See, e.g., Whistleblower Protections for Classified Disclosures, 22 Op. O.L.C. 92,
101–102 n.34 (1998); Assertion of Executive Privilege Regarding White House Counsel’s
Office Documents, 20 Op. O.L.C. 2, 3 (1996) (opinion of Attorney General Janet Reno)
(observing that “[e]xecutive privilege applies” to certain White House documents “be-
cause of their deliberative nature, and because they fall within the scope of the attorney-
client privilege and the work-product doctrine”).
8
Attempted Exclusion of Agency Counsel from Congressional Depositions
cably rooted in the separation of powers under the Constitution.” Nixon,
418 U.S. at 708. It ensures that “high Government officials and those who
advise and assist them in the performance of their manifold duties” can
engage in full and candid decisionmaking, id. at 705, 708, and it is neces-
sary to protect sensitive security and other information that could be used
to the public’s detriment.
The President may protect such privileged information from disclosure
in the Executive’s responses to congressional oversight proceedings. See
Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498
F.2d 725, 731 (D.C. Cir. 1974). As we have explained, “[i]n the congres-
sional oversight context, as in all others, the decision whether and under
what circumstances to disclose classified information” or other forms of
privileged information “must be made by someone who is acting on the
official authority of the President and who is ultimately responsible to the
President.” Whistleblower Protections for Classified Disclosures, 22 Op.
O.L.C. 92, 100 (1998) (“Whistleblower Protections”). Thus, “‘Congress
may not vest lower-ranking personnel in the Executive branch with a
“right” to furnish national security or other privileged information to a
member of Congress without receiving official authorization to do so.’”
Authority of Agency Officials, 28 Op. O.L.C. at 80 (quoting March 9,
1998 Statement of Administration Policy on S. 1668, 105th Cong.);
see Constitutionality of the Direct Reporting Requirement in Section
802(e)(1) of the Implementing Recommendations of the 9/11 Commission
Act of 2007, 32 Op. O.L.C. 27, 43 (2008) (“Direct Reporting Require-
ment ”) (“We have long concluded that statutory provisions that purport to
authorize Executive Branch officers to communicate directly with Con-
gress without appropriate supervision . . . infringe upon the President’s
constitutional authority to protect against the unauthorized disclosure of
constitutionally privileged information.”). Because “statutes may not
override the constitutional doctrine of executive privilege,” they may not
“prohibit the supervision of the disclosure of any privileged information,
be it classified, deliberative process or other privileged material.” Au-
thority of Agency Officials, 28 Op. O.L.C. at 81. It necessarily follows
that congressional committees’ rules of procedure may not be used to
override privilege or the Executive’s ability to supervise the disclosure of
privileged information.
The foregoing principles governed our analysis here. In order to control
the disclosure of privileged information, the President must have the
discretion to designate a representative of the government to protect this
interest at congressional depositions of agency employees. When employ-
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Opinions of the Office of Legal Counsel in Volume 43
ees testify about information created or received during their employment,
they are disclosing the Executive Branch’s information. The same thing is
true for former employees. 3 Yet, in many cases, agency employees will
have only limited experience with executive privilege and may not have
the necessary legal expertise to determine whether a question implicates
a protected privilege. Moreover, the employees’ personal interests in
avoiding a conflict with the committee may not track the longer-term
interests of the Executive Branch. Without an agency representative at
the deposition to evaluate which questions implicate executive privilege,
an employee may be pressed—wittingly or unwittingly—into revealing
protected information such as internal deliberations, attorney-client com-
munications, or national security information. See Nixon, 418 U.S. at705–06; Senate Select Comm., 498 F.2d at 731. Or the agency employee
may be pressed into responding to inquiries that are beyond the scope
of Congress’s oversight authority. See Barenblatt, 360 U.S. at 111–12
(“Congress may only investigate into those areas in which it may poten-
tially legislate or appropriate [and] cannot inquire into matters which are
within the exclusive province of one of the other branches of the Govern-
ment.”).
Even if the President has not yet asserted a particular privilege, exclud-
ing agency counsel would diminish the President’s ability to decide
whether a privilege should be asserted. The Executive Branch cannot
foresee every question or topic that may arise during a deposition, but
if questions seeking privileged information are asked, agency counsel,
if present, can ensure that the employee does not impermissibly disclose
privileged information. See Memorandum for Rudolph W. Giuliani,
Associate Attorney General, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Congressional Demand for Deposi-
tion of Counsel to the President Fred F. Fielding at 2 (July 23, 1982)
(“A witness before a Congressional committee may be asked—under
threat of contempt—a wide range of unanticipated questions about highly
sensitive deliberations and thought processes. He therefore may be unable
to confine his remarks only to those which do not impair the deliberative
process.”). The President, through his subordinates, must be able to inter-
vene before that information is disclosed, lest the effectiveness of the
3 See, e.g., Assertion of Executive Privilege Concerning the Dismissal and Replace-
ment of U.S. Attorneys, 31 Op. O.L.C. 1 (2007) (opinion of Acting Attorney General Paul
D. Clement) (concluding that the President may assert executive privilege with respect to
testimony by two former White House officials).
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Attempted Exclusion of Agency Counsel from Congressional Depositions
privilege be diminished. See Memorandum for Peter J. Wallison, Counsel
to the President, from Charles J. Cooper, Assistant Attorney General,
Office of Legal Counsel at 2 (Sept. 8, 1986) (agency counsel attending
congressional interviews can advise “about the sensitivity of particular
information and, if need be, to terminate the interview to avoid disclosure
of privileged information”). Accordingly, Committee Rule 15(e) unduly
interferes with the President’s supervision of the disclosure of privileged
information by barring agency counsel from the deposition of an agency
employee concerning official activities.
These concerns were readily apparent in connection with the subpoenas
of Mr. Gore and Mr. Kline. In both instances, the Committee sought
information about communications among senior executive branch offi-
cials regarding official decisions. There was no doubt that the depositions
would implicate matters in which the Executive Branch had constitution-
ally based confidentiality interests. Indeed, in Mr. Gore’s March 7 inter-
view, the Committee repeatedly asked him questions concerning poten-
tially privileged matters—some of which a federal court had already held
were protected by privilege in civil discovery. See New York v. U.S. Dep’t
of Commerce, 351 F. Supp. 3d 502, 548 n.19 (S.D.N.Y. 2019) (summariz-
ing discovery orders). And the Committee then noticed the deposition
precisely to compel answers to such questions. See April 10 Cummings
Letter at 3 (“The Department is well aware of the scope of the deposition,
based on the issues raised at Mr. Gore’s March 7 interview and the list of
18 [previously unanswered] questions provided by Committee staff.”).
In Mr. Kline’s May 1 interview, the witness was similarly instructed not
to answer a number of questions implicating the Executive Branch’s
confidentiality interests. Prohibiting agency counsel from attending the
depositions would have substantially impaired the Executive Branch’s
ability to continue to protect such privileged information and to make
similar confidentiality determinations in response to new questions. The
Committee’s demands that the witnesses address questions already
deemed unanswerable by agency counsel indicated that the exclusion of
agency counsel would have been intended, in no small part, to circumvent
executive branch mechanisms for preserving confidentiality.
B.
Committee Rule 15(e) also interferes with the President’s authority
to supervise the Executive Branch’s interactions with Congress. The
Constitution vests “[t]he executive Power” in the President, U.S. Const.
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Opinions of the Office of Legal Counsel in Volume 43
art. II, § 1, cl. 1, and requires him to “take Care that the Laws be faithfully
executed,” id. § 3. This power and responsibility grant the President the
“constitutional authority to supervise and control the activity of subordi-
nate officials within the executive branch.” The Legal Significance of
Presidential Signing Statements, 17 Op. O.L.C. 131, 132 (1993) (citing
Franklin v. Massachusetts, 505 U.S. 788, 800 (1992)); see also Constitu-
tionality of Statute Requiring Executive Agency to Report Directly to
Congress, 6 Op. O.L.C. 632, 637 (1982) (“Constitutionality of Reporting
Statute”). As we have previously explained, “‘the right of the President to
protect his control over the Executive Branch [is] based on the fundamen-
tal principle that the President’s relationship with his subordinates must
be free from certain types of interference from the coordinate branches of
government in order to permit the President effectively to carry out his
constitutionally assigned responsibilities.’” Authority of HUD’s Chief
Financial Officer to Submit Final Reports on Violations of Appropriations
Laws, 28 Op. O.L.C. 248, 252 (2004) (“Authority of HUD’s CFO”) (quot-
ing Constitutionality of Reporting Statute, 6 Op. O.L.C. at 638–39).
The President’s authority to supervise his subordinates in the Executive
Branch includes the power to control communications with, and infor-
mation provided to, Congress on behalf of the Executive Branch. See
Direct Reporting Requirement, 32 Op. O.L.C. at 31, 39; Authority of
Agency Officials, 28 Op. O.L.C. at 80–81; cf. United States ex rel. Touhy
v. Ragen, 340 U.S. 462, 467–68 (1951) (upholding “a refusal by a subor-
dinate of the Department of Justice to submit papers to the court in re-
sponse to its subpoena duces tecum on the ground that the subordinate
[wa]s prohibited from making such submission by” a valid order of the
Attorney General). At a minimum, this responsibility includes the power
to know about, and assert authority over, the disclosures his subordinates
make to Congress regarding their official duties.
Congressional efforts to prevent the President from supervising the Ex-
ecutive Branch’s interactions with Congress interfere with the President’s
ability to perform his constitutional responsibilities. We have long recog-
nized that statutes, “if construed or enforced to permit Executive Branch
officers to communicate directly with Congress without appropriate
supervision by the President or his subordinates, would violate the consti-
tutional separation of powers and, specifically, the President’s Article II
authority to supervise Executive Branch personnel.” Direct Reporting
Requirement, 32 Op. O.L.C. at 31–32, 39 (citing Authority of the Special
Counsel of the Merit Systems Protection Board to Litigate and Submit
Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984); Authority of HUD’s
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Attempted Exclusion of Agency Counsel from Congressional Depositions
CFO, 28 Op. O.L.C. at 252–53; Authority of Agency Officials, 28 Op.
O.L.C. at 80–82). It is on this basis that the Department has consistently
resisted congressional attempts to require, by statute, that executive
branch officials submit information to Congress in the form of reports
without prior opportunity for review by their superiors. See, e.g., id. at
34–39 (“[S]tatutory reporting requirements cannot constitutionally be
applied to interfere with presidential supervision and control of the com-
munications that Executive Branch officers . . . send to Congress.”);
Authority of HUD’s CFO, 28 Op. O.L.C. at 252–53; Access to Classified
Information, 20 Op. O.L.C. 402, 403–05 (1996); Inspector General Legis-
lation, 1 Op. O.L.C. 16, 18 (1977).
Information sought in congressional depositions is no different. An
agency employee testifying about official activities may be asked to
disclose confidential information, yet the employee may lack the expertise
necessary to protect privileged information on his own. Nor will an em-
ployee’s private counsel always adequately protect such information.
Private counsel may not have the expertise to recognize all situations
raising issues of executive privilege, and in any event, recognizing such
situations and protecting privileged information is not private counsel’s
job. Private counsel’s obligation is to protect the personal interests of the
employee, not the interests of the Executive Branch. An agency repre-
sentative, by contrast, is charged with protecting the Executive Branch’s
interests during the deposition—ensuring that the information the em-
ployee provides to Congress is accurate, complete, and within the proper
scope, and that privileged information is not disclosed. The Committee’s
rule prohibiting agency counsel from accompanying an agency employee
to a deposition would effectively, and unconstitutionally, require that
employee to report directly to Congress on behalf of the Executive
Branch, without an adequate opportunity for review by an authorized
representative of the Executive Branch.
C.
Having concluded that the Committee could not constitutionally bar
agency counsel from accompanying Mr. Gore or Mr. Kline to depositions,
we further advised that the subpoenas that required them to appear with-
out agency counsel, over the Executive Branch’s objections, exceeded the
Committee’s lawful authority and therefore lacked legal effect. The
Committee could not constitutionally compel Mr. Gore or Mr. Kline to
appear under such circumstances, and thus the subpoenas could not be
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Opinions of the Office of Legal Counsel in Volume 43
enforced by civil or criminal means or through any inherent contempt
power of Congress.
This conclusion is consistent with our treatment of referrals to the De-
partment of contempt-of-Congress citations for criminal prosecution
under 2 U.S.C. §§ 192 and 194. We have opined that “the criminal con-
tempt of Congress statute does not apply to the President or presidential
subordinates who assert executive privilege.” Application of 28 U.S.C.
§ 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350,
356 (1995); see also Whether the Department of Justice May Prosecute
White House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 65–
69 (2008) (concluding that the Department cannot take “prosecutorial
action, with respect to current or former White House officials who . . .
declined to appear to testify, in response to subpoenas from a congres-
sional committee, based on the President’s assertion of executive privi-
lege”); Prosecution for Contempt of Congress of an Executive Branch
Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C.
101, 101–102 (1984) (“Prosecution for Contempt ”) (finding that “the
contempt of Congress statute was not intended to apply and could not
constitutionally be applied to an Executive Branch official” who followed
presidential instructions to “assert[] the President’s claim of executive
privilege”). Nor may Congress “utilize its inherent ‘civil’ contempt pow-
ers to arrest, bring to trial, and punish an executive official who assert[s]
a Presidential claim of executive privilege.” Prosecution for Contempt,
8 Op. O.L.C. at 140 n.42. The fundamental constitutional principles
underlying executive privilege would be vitiated if any executive branch
employee following a direction to invoke the privilege could be prosecut-
ed for doing so.
Similarly, we believe it would be unconstitutional to enforce a subpoe-
na against an agency employee who declined to appear before Congress,
at the agency’s direction, because the committee would not permit an
agency representative to accompany him. As discussed above, having an
agency representative present at a deposition of an agency employee may
be necessary for the President to exercise his authority to supervise the
disclosure of privileged information, as well as to ensure that the testi-
mony provided is accurate, complete, and properly limited in scope.
Therefore, agency employees, like Mr. Gore and Mr. Kline, who follow
an agency instruction not to appear without the presence of an agency
representative are acting lawfully to protect the constitutional interests of
the Executive Branch.
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Attempted Exclusion of Agency Counsel from Congressional Depositions
III.
In reaching this conclusion, we considered the contrary arguments ad-
vanced by the Committee in its April 10 and April 22 letters. The Com-
mittee’s principal argument was that prohibiting agency counsel from
attending depositions of agency employees poses no constitutional con-
cern because Congress has the authority to “determine the Rules of its
Proceedings.” U.S. Const. art. I, § 5, cl. 2; see April 10 Cummings Letter
at 2–3; April 22 Cummings Letter at 3. But congressional rulemaking
authority “only empowers Congress to bind itself.” Chadha, 462 U.S. at955 n.21 (positing that the Constitution’s provision of several powers like
procedural rulemaking where each House of Congress can act alone
reveals “the Framers’ intent that Congress not act in any legally binding
manner outside a closely circumscribed legislative arena, except in specif-
ic and enumerated instances”). Such rulemaking authority does not grant
Congress the power to compel testimony from agency officials under
circumstances that interfere with the legitimate prerogatives of the Execu-
tive Branch.
Congress’s authority to make rules governing its own procedures does
not mean that the constitutional authorities of a co-equal branch of gov-
ernment are checked at the door. See Barenblatt, 360 U.S. at 112 (noting
that when engaging in oversight, Congress “must exercise its powers
subject to the limitations placed by the Constitution on governmental
action”). To the contrary, Congress “may not by its rules ignore constitu-
tional restraints.” United States v. Ballin, 144 U.S. 1, 5 (1892). Congress
may not, by statute, override the President’s constitutional authority to
control the disclosure of privileged information and to supervise executive
branch employees. See Direct Reporting Requirement, 32 Op. O.L.C. at
43–44; Whistleblower Protections, 22 Op. O.L.C. at 100. It necessarily
follows that a committee may not accomplish the same result by adopting
a rule governing its own proceedings.
The Committee also justified Committee Rule 15(e) on the ground that
it has been in place for a decade. See April 10 Cummings Letter at 3;
April 22 Cummings Letter at 3. But congressional committee use of
depositions is a relatively recent innovation, and historically such
“[d]epositions have been used in a relatively small number of major
congressional investigations.” Staff Depositions at 1. Moreover, commit-
tees proposing the use of depositions have previously faced objections
that they may improperly “‘circumvent the traditional committee pro-
cess’” of hearings and staff interviews and may “compromise the rights of
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Opinions of the Office of Legal Counsel in Volume 43
deponents.” Id. at 2; see supra pp. 3–4. Accordingly, the Committee’s
limited previous use of depositions from which agency counsel were
excluded does not reflect a “long settled and established practice,” much
less one that has been met by acquiescence from the Executive Branch.
NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) (internal quotation
marks and brackets omitted).
In addition, the Committee claimed that Rule 15(e) serves the purpose
of “ensur[ing] that the Committee is able to depose witnesses in further-
ance of its investigations without having in the room representatives of
the agency under investigation.” April 10 Cummings Letter at 2; April 22
Cummings Letter at 3. But that assertion does no more than restate the
rule’s effect, without advancing any legitimate rationale for excluding the
agency’s representatives, much less one sufficient to alter the constitu-
tional calculus. The Committee here did not seek information concerning
the private affairs of agency employees or articulate any particularized
interest in excluding agency counsel. In fact, agency counsel appeared at
the staff interviews of both Mr. Gore and Mr. Kline. In view of the Presi-
dent’s clear and well-established interests in protecting privileged infor-
mation and supervising the Executive Branch’s interactions with Con-
gress, the Committee offered no countervailing explanation for why it
would be necessary to exclude any agency representative from these two
depositions.
Indeed, the Committee has not explained why, as a general matter, the
House needs to exclude agency counsel from depositions of agency offi-
cials. Agency representatives routinely accompany and support agency
employees during congressional hearings and staff interviews. See Au-
thority to Pay for Private Counsel, 41 Op. O.L.C. at *3 (“When congres-
sional committees seek to question employees of an Executive Branch
agency in the course of a congressional oversight inquiry of the agency,
the Executive Branch’s longstanding general practice has been for agency
attorneys to accompany the witnesses.”); Reimbursing Justice Department
Employees for Fees Incurred in Using Private Counsel Representation at
Congressional Depositions, 14 Op. O.L.C. 132, 133 (1990) (“[W]hen
Department employees are asked in their official capacities to give oral
testimony for a congressional investigation (whether at a hearing, inter-
view or deposition), a Department counsel or other representative will
normally accompany the witness.”); Representation of White House
Employees, 4B Op. O.L.C. at 754 (“[L]egitimate governmental interests”
are “[o]rdinarily . . . monitored by agency counsel who accompany execu-
tive branch employees called to testify before congressional commit-
16
Attempted Exclusion of Agency Counsel from Congressional Depositions
tees.”). There is no basis for believing that this routine practice diminishes
the Committee’s ability to acquire any information it may legitimately
seek. 4
In defending the exclusion of agency counsel, the Committee pointed
out that the witnesses may bring their private counsel to the depositions.
April 10 Cummings Letter at 2; April 22 Cummings Letter at 3. But
allowing agency employees to be accompanied by private counsel is no
substitute for the presence of agency counsel. In addition to imposing
unnecessary burdens on agency employees by requiring the retention of
private counsel, the practice does not adequately protect the agency’s
interests. As explained above, the President must be able to supervise who
discloses executive branch information and under what conditions. An
employee’s private counsel, however, represents the interests of the
employee, not the agency, and “the attorney owes a fiduciary duty and a
duty of confidentiality to the employee, not the agency.” Authority to Pay
for Private Counsel, 41 Op. O.L.C. at *5; see also Representation of
White House Employees, 4B Op. O.L.C. at 754 (“[A]ny counsel directed
to represent governmental interests must be controlled by the Govern-
ment, and private counsel retained by employees to represent personal
interests should not be permitted to assert governmental interests or
privileges.”). Even if the private counsel may sometimes assist the agency
employee in protecting agency information, the Committee cannot require
the Executive Branch to rely upon the private counsel to make such judg-
ments. Private counsel is not likely to know as well as agency counsel
when a line of questioning, especially an unanticipated one, might intrude
upon the Executive Branch’s constitutionally protected interests.
Finally, we concluded that the Committee’s proposed accommoda-
tion—to make a separate room available for agency counsel at the two
depositions—was insufficient to remedy these constitutional concerns.
See April 10 Cummings Letter at 3; April 22 Cummings Letter at 3. That
4 In a similar vein, agency employees are routinely represented by agency counsel
in connection with depositions in civil litigation and, where appropriate, agency counsel
will instruct agency employees not to answer questions that implicate privilege. Further,
as the Supreme Court recognized in Touhy, 340 U.S. 462, the head of an agency may
properly bar subordinate officials from disclosing privileged agency information, and
departments have accordingly enacted so-called Touhy regulations to ensure that privi-
leged information is appropriately protected by agency officials in civil discovery. See,
e.g., 28 C.F.R. §§ 16.21–16.29 (Department of Justice Touhy regulations). Just as agency
counsel may properly participate in ensuring appropriate disclosures in depositions in
civil litigation, agency counsel may properly do so in congressional depositions.
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Opinions of the Office of Legal Counsel in Volume 43
practice would put the onus on the agency employee and his private
counsel to divine whether the agency would have privilege concerns about
each question, and then “request a break during the deposition to consult
with” agency counsel. April 10 Cummings Letter at 3; see April 22 Cum-
mings Letter at 3. Because this practice would leave such judgments
entirely up to the employee and his private counsel, as well as depend on
the discretion of the Committee’s staff to grant the requested break, it
would not adequately ensure that the agency could make the necessary
decisions to protect privileged information during the course of the depo-
sition. It also would prevent the Executive Branch from ensuring that the
testimony provided was accurate, complete, and properly limited in scope.
We recognize that there is at least one circumstance—an appearance
before a grand jury—where a witness’s attorney must remain in a separate
room during questioning. See Fed. R. Crim. P. 6(d)(1); United States v.
Mandujano, 425 U.S. 564, 581 (1976). However, grand juries can hardly
provide a model for congressional depositions, because they operate under
conditions of extreme secrecy, and there is a long-established practice of
excluding all attorneys for witnesses before the grand jury. See, e.g., In re
Black, 47 F.2d 542, 543 (2d Cir. 1931); Latham v. United States, 226 F.
420, 422 (5th Cir. 1915). Committee Rule 15(e) not only lacks the histori-
cal pedigree of grand-jury proceedings, but the information collected in
congressional depositions is not inherently confidential. Indeed, the
Committee does not even have a categorical objection to allowing wit-
nesses to be accompanied by counsel. Rather, the rule permits witnesses
to be accompanied by counsel of their choice, provided that counsel does
not represent the agency as well. This targeted exclusion underscores the
separation of powers problems. 5
5 Indeed, the federal courts have recognized that “[t]here is a clear difference between
Congress’s legislative tasks and the responsibility of a grand jury.” Senate Select Comm.,
498 F.2d at 732; see also Nixon, 418 U.S. at 712 n.19 (distinguishing the “constitutional
need for relevant evidence in criminal trials,” on the one hand, from “the need for relevant
evidence in civil litigation” and “congressional demands for information,” on the other).
Congressional depositions appear more akin to depositions in civil litigation, rather than
grand juries, and in civil litigation it is well established that attorneys “representing the
deponent” and attorneys representing “any party to the litigation” have “the right to be
present” at a deposition. Jay E. Grenig & Jeffrey S. Kinsler, Handbook of Federal Civil
Discovery and Disclosure § 5:29 (4th ed. 2018).
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Attempted Exclusion of Agency Counsel from Congressional Depositions
IV.
For the foregoing reasons, we concluded that the Committee’s prohibi-
tion on agency counsel’s attendance at depositions impermissibly in-
fringed on the President’s constitutional authority to protect information
within the scope of executive privilege and to supervise the Executive
Branch’s communications with Congress. Although the Executive Branch
must facilitate legitimate congressional oversight, the constitutionally
mandated accommodation process runs both ways. See Am. Tel. & Tel.
Co., 567 F.2d at 127, 130–31. Just as the Executive must provide Con-
gress with information necessary to perform its legislative functions,
Congress through its oversight processes may not override the Executive
Branch’s constitutional prerogatives. See Barenblatt, 360 U.S. at 112.
Here, the constitutional balance requires that agency representatives be
permitted to assist agency officials in connection with providing deposi-
tion testimony, including on matters that implicate privileged information.
Thus, we advised that the subpoenas purporting to compel Mr. Gore and
Mr. Kline to appear without agency counsel exceeded the Committee’s
authority and were without legal effect.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
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