Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context ( 2019 )

(Slip Opinion)
Exclusion of Agency Counsel from Congressional
Depositions in the Impeachment Context
Congressional committees participating in an impeachment inquiry may not validly
compel executive branch witnesses to testify about matters that potentially involve
information protected by executive privilege without the assistance of agency counsel.
Congressional subpoenas that purport to require executive branch witnesses to appear
without agency counsel in these circumstances are legally invalid and are not subject
to civil or criminal enforcement.
November 1, 2019
LETTER OPINION FOR THE COUNSEL TO THE PRESIDENT
On October 31, 2019, the House of Representatives voted to authorize
certain committees to investigate “whether sufficient grounds exist for the
House of Representatives to exercise its Constitutional power to impeach”
President Trump. H.R. Res. 660, 116th Cong. (2019). Although the House
resolution directs the House Permanent Select Committee on Intelligence
(“HPSCI”) to conduct “open and transparent investigative proceedings”
in connection with this inquiry, id. § 2 (title), we understand that HPSCI
nonetheless insists that executive branch employees appear next week for
closed-door depositions from which agency counsel would be excluded.
You have asked whether HPSCI or the other committees involved in
the impeachment inquiry may validly compel executive branch witnesses
to appear at such depositions. The HPSCI impeachment inquiry seeks
information concerning presidential communications, internal executive
branch deliberations, and diplomatic communications arising in connec-
tion with U.S. foreign relations with Ukraine. As a result, the depositions
seek testimony from executive branch employees concerning matters
potentially protected by executive privilege. Consistent with our prior
advice, we conclude that the congressional committees participating in the
impeachment investigation authorized by the resolution may not validly
require executive branch witnesses to appear without the assistance of
agency counsel in connection with such depositions. See Attempted Exclu-
sion of Agency Counsel from Congressional Depositions of Agency Em-
ployees, 43 Op. O.L.C. __, *7–13 (May 23, 2019) (“Exclusion of Agency
Counsel ”). HPSCI could address this separation of powers problem by
allowing agency counsel to assist the employee during the deposition.
Should the committee not do so, however, a subpoena purporting to
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require a witness to appear without such assistance would be invalid and
not subject to civil or criminal enforcement. See id. at *13–14.
We have previously advised, in the context of legislative oversight in-
vestigations, that Congress may not prohibit agency counsel from accom-
panying employees called to testify about matters that potentially involve
information protected by executive privilege. As we explained, “the
exclusion of agency counsel impairs the President’s ability to exercise his
constitutional authority to control privileged information of the Executive
Branch” and “his constitutional authority to supervise the Executive
Branch’s interactions with Congress.” Id. at *8. The President has the
constitutional authority to protect privileged information from disclosure
in response to congressional investigations, and to do so effectively, he
must be able to designate a representative to protect this interest at con-
gressional depositions. Id. at *8–11. In addition, the President has the
constitutional authority to control the activities of subordinate officials
within the Executive Branch, which includes the power to control com-
munications with, and information provided to, Congress on the Executive
Branch’s behalf. Id. at *11–13. Adherence to these principles ensures that
executive branch employees called to testify before Congress do not
improperly disclose privileged information, and that the information
provided is consistent with the scope of Congress’s investigative authori-
ty.
We believe that these same principles apply to a congressional commit-
tee’s effort to compel the testimony of an executive branch official in
an impeachment inquiry. Executive privilege protects the confidentiality
and integrity of sensitive executive branch information absent a showing
of sufficient legislative “need” in the context of an oversight investiga-
tion. Senate Select Comm. on Presidential Campaign Activities v. Nixon,
498 F.2d 725, 730–31 (D.C. Cir. 1974) (en banc). The privilege has also
been recognized to protect information in connection with other kinds of
proceedings, including criminal trials and grand-jury investigations.
As the Supreme Court recognized in United States v. Nixon, 418 U.S.
683 (1974), executive privilege “is fundamental to the operation of Gov-
ernment and inextricably rooted in the separation of powers under the
Constitution.” Id. at 708. While the privilege may yield to the “legitimate
needs of the judicial process” in connection with a criminal trial, the
Court recognized that “it is necessary to resolve those competing interests
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Exclusion of Agency Counsel in the Impeachment Context
in a manner that preserves the essential functions of each branch.” Id. at
707. The D.C. Circuit has applied the same principle in connection with
a grand-jury investigation, observing that privileged presidential commu-
nications “should not be treated as just another source of information” in
such an inquiry, but should instead be provided to a grand jury only upon
a demonstration of “why it is likely that evidence contained in presidential
communications is important to the ongoing grand jury investigation and
why this evidence is not available from another source.” In re Sealed
Case, 121 F.3d 729, 755–57 (D.C. Cir. 1997).
We believe that a congressional committee must likewise make a show-
ing of need that is sufficient to overcome the privilege in connection with
an impeachment inquiry. Although no judicial decision is directly on
point, the D.C. Circuit suggested as much in Senate Select Committee, in
which it contrasted the Senate committee’s “oversight need” in support of
“legislative tasks” with “the responsibility of a grand jury, or any institu-
tion engaged in like functions.” 498 F.2d at 732 (emphasis added). The
latter phrase referred to the House Committee on the Judiciary, which had
“begun an inquiry into presidential impeachment.” Id. The D.C. Circuit’s
recognition that an impeachment inquiry is similar to a grand-jury inves-
tigation implies the requirement of a similar showing of need. We need
not settle on the precise standard in order to address your current inquiry,
because we think it sufficient to recognize that a qualified executive
privilege remains available, and a congressional committee must therefore
make some showing of need to overcome the privilege. This conclusion
follows from the Supreme Court’s recognition that a dispute involving
information subject to executive privilege should be resolved in a manner
that “preserves the essential functions of each branch.” Nixon, 418 U.S. at
707.1
1 In a 1974 effort to summarize the then-available precedents, a “working paper pre-
pared by the staff ” of this Office observed that “[p]recedents relating to the subject of
executive privilege in presidential impeachment are meager, confused and inconclusive.”
Office of Legal Counsel, U.S. Dep’t of Justice, Legal Aspects of Impeachment: An
Overview app. 3, at 1 (Feb. 1974). Where executive branch officials have addressed the
issue, they have typically done so outside the context of a particular impeachment inquiry.
While they have sometimes acknowledged that Congress’s interest in information in
connection with impeachment may be stronger than in the oversight context, they have
not identified a consistent standard for evaluating such requests. See id. at 6–15, 22–32
(describing statements of past Presidents and Attorneys General); see also, e.g., Assertion
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While HPSCI may be able to establish an interest justifying its requests
for information, the Executive Branch also has legitimate interests in
confidentiality, and the resolution of these competing interests requires a
careful balancing of each branch’s need in the context of the particular
information sought. See United States v. Am. Tel. & Tel. Co., 567 F.2d
121, 127 (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 particu-
lar fact situation.”). Although HPSCI is willing to allow witnesses to
appear with personal counsel, the accommodation process presupposes
participation by appropriate representatives of the Executive Branch,
which cannot occur when a committee seeks to exclude agency counsel
from the room. See Exclusion of Agency Counsel, 43 Op. O.L.C. at *17
(explaining the differences between private counsel’s and agency coun-
sel’s obligations and abilities). Accordingly, where, as here, a committee
deposition is likely to inquire into privileged communications, the com-
mittee may not validly prevent an executive branch witness from receiv-
ing the assistance of agency counsel. See id. at *7–13.
Because the committee may not bar agency counsel from assisting an
executive branch witness without contravening the legitimate prerogatives
of the Executive Branch, a HPSCI subpoena requiring such a result would
exceed the committee’s lawful authority and thus could not be enforced.
As we concluded in the oversight context, “it would be unconstitutional to
enforce a subpoena 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.” Id. at *14. This
conclusion followed from many earlier precedents of this Office, which
recognized that “the Constitution does not permit Congress to make it a
crime for an official to assist the President in asserting a constitutional
of Executive Privilege by the Chairman of the Atomic Energy Commission, 1 Op. O.L.C.
Supp. 468, 485 (1956) (“Even in [impeachment] there is no precedent to the effect that the
executive privilege cannot validly be invoked.”); Position of the Executive Department
Regarding Investigative Reports, 40 Op. Att’y Gen. 45, 51 (1941) (identifying impeach-
ment proceedings as a situation in which “the public interest” can justify disclosure of
“pertinent” information “for the good of the administration of justice”). Subsequent
judicial decisions, as discussed above, are consistent with our recognition that a qualified
privilege applies in the context of an impeachment investigation, just as it does in a
grand-jury investigation.
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privilege that is an integral part of the President’s responsibilities under
the Constitution.” Prosecution for Contempt of Congress of an Executive
Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op.
O.L.C. 101, 140 (1984). 2 An executive branch employee does not violate
the criminal contempt-of-Congress statute by declining to appear before a
congressional committee based upon an instruction to protect the confi-
dentiality interests of the Executive Branch and the separation of powers.
HPSCI, of course, may readily avoid this problem by allowing the em-
ployee to receive the assistance of agency counsel during the deposition.
You have also asked whether the House’s adoption of a resolution au-
thorizing an impeachment inquiry would have any effect on existing
subpoenas. As we have previously advised you, prior to October 31, 2019,
the House had not vested any committee in the current Congress with the
authority to issue subpoenas in connection with an impeachment inquiry.
As a result, subpoenas issued before that date purporting to be “pursuant
to” an impeachment inquiry were not properly authorized. Although
House Resolution 660 “direct[s]” HPSCI and other committees to “con-
tinue their ongoing investigations,” it does not purport to ratify any previ-
ously issued subpoena. Accordingly, while the Executive Branch may,
and regularly does, accommodate congressional requests for information
in the absence of a subpoena, the relevant committees would have to issue
new subpoenas to impose any compulsory effect on recipients.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
2 See also Testimonial Immunity Before Congress of the Former Counsel to the Presi-
dent, 43 Op. O.L.C. __, *20 (May 20, 2019) (“The constitutional separation of powers
bars Congress from exercising its inherent contempt power in the face of a presidential
assertion of executive privilege.”); Whether the Department of Justice May Prosecute
White House Officials for Contempt of Congress, 32 Op. O.L.C. 65, 65–69 (2008) (con-
cluding 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 sub-
poenas from a congressional committee, based on the President’s assertion of executive
privilege”); Application of 28 U.S.C. § 458 to Presidential Appointments of Federal
Judges, 19 Op. O.L.C. 350, 356 (1995) (“the criminal contempt of Congress statute does
not apply to the President or presidential subordinates who assert executive privilege” ).
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