The House Does Not Have to Allow Agency Counsel to Attend Depositions

In Lawfare I have a piece explaining why the House has the power to enforce subpoenas for depositions against executive officials and is not required to allow agency counsel to attend.

While the investigations prompting these subpoenas are controversial, the legal issue in the lawsuits is unrelated to the merits of the committee’s inquiries. In the case of all three subpoenas, the Justice Department directed the witnesses not to appear because, under the terms of the House rules governing deposition testimony, only the personal counsel for a witness is allowed to attend. The Justice Department maintains that it is constitutionally entitled to have agency counsel in attendance, which is prohibited by the House rules. The committee offered to allow agency counsel to be present in an adjoining room, where the witness and his personal counsel could consult them if need be, but the department rejected this accommodation.

While this may appear on the surface to be a modest procedural dispute, it has broader ramifications. The Justice Department’s claim is that agency counsel must be in the room, not to protect the rights of witnesses, but to guard the president’s purported authority to control the dissemination of all executive branch information. It is thus part of a larger and increasingly aggressive executive branch doctrine, which threatens to make Congress virtually impotent to obtain the information it needs for legislative and other purposes. (Law professor and Office of Legal Counsel (OLC) veteran Jonathan Shaub thoroughly detailed this doctrine in a 2020 law review article.) Moreover, as I wrote in 2019, the Justice Department’s position on congressional depositions is “wholly without legal support and in considerable tension with federal whistleblower laws.”

Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity

In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case. Continue reading “Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity”