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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).


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