III. Use of Depositions
A. Deposition Authority
Historically, a special resolution was required to give deposition authority to a specific committee for a specific investigation. Examples from the 1990s include the deposition rules for the House Committee on Government Reform and Oversight inquiry into the Clinton Administration and the deposition rules for the House Committee on Education and the Workforce inquiry into the administration of labor laws. In 2007, House Democrats gave the Committee on Oversight and Government Reform standing deposition authority in the House rules. In 2014, House Republicans gave deposition authority to the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi (“Benghazi Committee”). In 2015, the House rules adopted by the Republican majority gave standing deposition authority to four committees in addition to the Committee on Oversight and Government Reform.
In 2016, several House Republicans, including then-Rep. Mike Pompeo and Rep. Jim Jordan, recommended extending deposition authority to all House committees, saying, “The ability to interview witnesses in private allows committees to gather information confidentially and in more depth than is possible under the five-minute rule governing committee hearings. This ability is often critical to conducting an effective and thorough investigation.”
In 2017, during the first part of the Trump Administration, Republican leaders followed this advice. The 2017 House rules provided all standing committees (other than the Rules Committee and the House Administration Committee) and the House Permanent Select Committee on Intelligence with deposition authority.
Republican chairs made extensive use of deposition authority. In the 1990s, the Committee on Government Reform and Oversight under Republican Chairman Dan Burton took 141 depositions of individuals who worked in the Clinton Administration, including White House chiefs of staff, White House counsels, and other officials at the most senior levels of government. The Benghazi Committee also used the deposition authority as part of its investigation into Secretary of State Hillary Clinton, taking the deposition of Clinton advisor Sidney Blumenthal. The House Committee on Oversight and Government Reform under Chairman Darrell Issa took depositions during its inquiries into the attack in Benghazi and alleged targeting of political groups by the Internal Revenue Service.
When Democrats were in the majority for the last two years of the Trump Administration, the House rules continued the Republican approach and granted standing committees deposition authority. This authority was also used during the first impeachment inquiry. Notwithstanding their previous support for the use of depositions, however, Republican leaders criticized the use of committee depositions to investigate the Trump Administration. In fact, Republican opposition to depositions grew so intense during the first impeachment inquiry of President Trump that over 30 Republican members forced their way into a witness deposition that they were not authorized to attend, causing a five-hour delay in the proceeding while authorities investigated whether security had been compromised. Rep. Jordan asserted, “The American people understand fairness and they instinctively know that what is happening here is not fair.” House Minority Leader Kevin McCarthy claimed, “this process is … something that this Congress has never done.”
B. Maintenance of the Confidentiality of Depositions
When House Republicans gave the Committee on Government Reform and Oversight deposition authority in 1997 for its investigation of the Clinton Administration, the resolution giving the Committee deposition authority provided that depositions would be “considered as taken in executive session,” which meant that deposition evidence obtained was subject to the House rules requiring committee authorization for any public release. As an additional safeguard of confidentiality, the Committee rules limited attendance to committee members and committee staff.
When House Democrats gave the Committee on Oversight and Government Reform standing deposition authority in 2007, the Committee rules incorporated the substance of these confidentiality protections, providing that a committee vote or the concurrence of both the chair and ranking member was required to release a deposition or portion thereof and that only committee members and staff could attend. When House Republicans gave the Benghazi Committee deposition authority in 2014, the deposition procedures they approved contained the same confidentiality provisions, as did the deposition regulations established by House Republicans in 2017 when they gave nearly all committees deposition authority. The deposition regulations issued in 2019 by the Democratic Chairman of the Rules Committee likewise adopted the same approach to confidentiality.
During Democratic administrations, House Republican chairs used their authority to withhold the release of deposition transcripts for extended periods of time. In 1997, the House Government Reform and Oversight Committee kept depositions confidential for months during its inquiry into the Clinton Administration. In 2015, over a year into the investigation by the Benghazi Committee, Chairman Trey Gowdy stated, “the Committee does not plan to release the transcript of any witnesses. ... Releasing transcripts can impact the recollections of other witnesses, jeopardize the efficacy of the investigation, alert witnesses to lines of inquiry best not made public, and publicize personal information.” Chairman Gowdy also prevented Oversight Committee Chairman Darrell Issa from attending one of the Select Committee’s depositions, explaining: “I’m a prosecutor, we always follow the rules. [Issa] is not a committee member and non-committee members are not allowed in the room during the deposition. Those are the rules and we have to follow them, no exceptions made.”
Republican leaders took a different position during the Trump Administration when committees took depositions as part of the Ukraine impeachment investigation. House Republican Whip Steve Scalise called the depositions “a Soviet-style process” that “should not be allowed in the United States of America” and said, “Every member of Congress ought to be allowed in that room. The press ought to be allowed in that room.” Even House Minority Leader Kevin McCarthy led a protest against what he called a “closed system” and unsuccessfully tried to attend a deposition in progress.
C. Exclusion of Agency Counsel
When Rep. Dan Burton investigated the Clinton Administration, the House Committee on Government Reform and Oversight adopted committee rules that expressly provided that “counsel … for agencies under investigation may not attend.” The rationale for the rule was to preserve the integrity of the investigation, to avoid providing a roadmap of the investigation to the agency being investigated, and to prevent the agency counsel from obstructing the proceeding. As a result of this rule, the 141 Clinton Administration officials deposed by the Committee had to obtain private counsel, often at significant personal expense. One career government official incurred $50,000 in legal fees.
When Democratic Rep. Henry Waxman became chair of the House Oversight Committee in 2007 during the George W. Bush Administration, he retained the prohibition of agency counsel in depositions. To protect government officials from unnecessary legal fees, he developed an alternative procedure for “transcribed interviews,” which were not subject to the deposition rules and at which agency counsel could attend and represent the government witness. Agency witnesses were typically given the option of appearing at transcribed interviews instead of depositions.
When Republicans took control of the House in 2011, they preserved the prohibition on agency counsel in depositions. Republicans chairs of the House Oversight and Government Reform Committee repeatedly implemented rules that barred agency counsel attendance (rules of the Committee on Oversight and Government Reform for the 112th, 113th, 114th, and 115th Congresses). The Republican rule for the Benghazi investigation likewise expressly provided that “counsel … for agencies under investigation may not attend.” When the House Republicans extended standing deposition authority to additional committees in 2015 and 2017, the deposition rules issued by the House Rules Committee chair also incorporated this bar (deposition regulations for the 114th and 115th Congresses).
The prohibition on agency counsel participation in the deposition regulations issued by the Democratic Rules Committee chair in 2019 were identical to those previously issued by the Republican Rules Committee chair. Nevertheless, House Minority Leader Kevin McCarthy wrote that failure to allow White House Counsel to attend impeachment depositions “would create a process completely devoid of any merit or legitimacy.”