November 1, 2019, after the House approved H. Res. 660, the Administration continued to press this spurious claim, with the Office of Legal Counsel issuing an opinion asserting that "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." Department of Justice, Office of Legal Counsel, Exclusion of Agency Counsel from Congressional Depositions in the Impeachment Context (Nov. 1, 2019) (online at www.justice.gov/olc/file/1214996/download). As discussed in this section, this position is entirely unsupported by judicial precedent and erroneous.
97 U.S. Const.., Art. I, sec. 5, cl. 2.
98 The regulations that govern House depositions state: "Only members, Committee staff designated by the chair or ranking minority member, an official reporter, the witness, and the witness's counsel are permitted to attend. Observers or counsel for other persons, including counsel for government agencies, may not attend." 116th Congress Regulations for Use of Deposition Authority, Congressional Record, H1216 (Jan. 25, 2019) (online at www.congress.gov/116/crec/20119/01/25/CREC-2019-01-25-pt1-PGH1216-2.pdf).
99 Committee on Oversight and Reform, Committee Depositions in the House of Representatives: Longstanding Republican and Democratic Practice of Excluding Agency Counsel (Nov. 5, 2019) (online at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Committee%20Depositions%20in%20the%20House%20of%20Representatives_Longstanding%20Republican%20and%20Democratic%20Practice%20of%20Exc luding%20Agency%20Counsel.pdf).
100 Letter from Pat A. Cipollone, Counsel to the President, The White House, to House Speaker Nancy Pelosi, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs Committee, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform (Oct. 8, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter10.08.2019.pdf).
101 Barenblatt v. United States, 360 U.S. 109 (1959).
102 See, e.g., S. 2537 (requiring an investigation by the State Department Inspector General into the withholding of aid to Ukraine, directing the President to immediately obligate previously appropriated funds, and authorizing funds to counter Russian influence); H.R. 3047 (providing support to Ukraine to defend its independence, sovereignty, and territorial integrity).
103 In re Application of the Committee on the Judiciary, United States House of Representatives, 2019 U.S. Dist. LEXIS 184857 (D.D.C. 2019), quoting Trump v. Mazars USA, LLP, 2019 U.S. App. LEXIS 30475 (D.D.C. 2019) ("Nothing 'in the Constitution or case law ... compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process.").
104 See, e.g., the 1974 Amendments to the Freedom of Information Act, P.L. 93-502; Ethics in Government Act of 1978, P.L. 95-52; Presidential Records Act of 1978, P.L. 95-591; Federal Election Campaign Act Amendments of 1974, P.L. 93-443.
105 Letter from Pat A. Cipollone, Counsel to the President, The White House, to House Speaker Nancy Pelosi, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence, Chairman Eliot L. Engel, House Committee on Foreign Affairs Committee, and Chairman Elijah E. Cummings, House Committee on Oversight and Reform (Oct. 8, 2019) (online at www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter10.08.2019.pdf); Letter from Pat A. Cipollone, Counsel to the President, The White House, to Acting Chairwoman Carolyn Maloney, House Committee on Oversight and Reform, Chairman Adam B. Schiff, House Permanent Select Committee on Intelligence Chairman Eliot L. Engel, Chairman, House Committee on Foreign Affairs (Oct. 18, 2019).
106 United States v. American Tel. & Tel. Co., 567 F.2d 121 (D.C. Cir. 1977) ("Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.").
107 For example, on November 22, 2019, the Department of State produced to a private party 99 pages of emails, letters, notes, timelines, and news articles under a court order pursuant to the Freedom of Information Act. State Departmemt Releases Ukraine Documents to American Oversight, American Oversight (Nov. 22, 2019) (online at www.americanoversight.org/state-department-releases-ukraine-documents-to-american-oversight).
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