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S. Engel Opinion for the Office of Legal Counsel: Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Counsel Whistleblower Complaint on Ukraine (Kelly Smith, comp.) 1 (11/1/19)

handle is hein.presidents/usgvtwht0124 and id is 1 raw text is: (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 Counselfrom Congressional Depositions of Agency Em- ployees, 43 Op. O.L.C. _, *7-13 (May 23, 2019) (Exclusion ofAgency 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 1

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