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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


   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


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