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S. Engel Memorandum for OLC, "Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees" Whistleblower Complaint on Ukraine (Kelly Smith, comp.) 1 (5/23/19)

handle is hein.presidents/usgvtwht0385 and id is 1 raw text is: (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 OPINION 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. ' 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 ofthe 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). 1

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