Today brought a flurry of reporting about former White House Counsel Pat Cipollone testifying to the Select Committee this Friday. But there is some confusion about one thing: Will Cipollone be giving a transcribed interview, as CNN and The New York Times reported, or will he sit for a standard deposition? The Washington Post, for example, noted that it was not clear what limits there may be on his closed-door testimony. You might be saying, Does this really matter to anyone but egghead lawyers? It does matter for several reasons, not the least of which concerns who is allowed in the proverbial room where it happens. The House Rules Committee issues regulations for the use of depositions by standing committees, or the regular, permanent committees, at the beginning of each Congress. One of those regulations provides :
Witnesses may be accompanied by personal, nongovernmental counsel at a deposition to inform them of their rights. Only members, committee staff designated by the chair or ranking minority member, an official reporter, the witness, and the witness's counsel are allowed to attend. Observers or counsel for other persons, including counsel for government agencies, may not be allowed to attend. In other words, at a House deposition, none of the DOJ, the White House counsel s office or a president's personal counsel has any right to attend, even if the person is a current or former executive branch official. The rules were adopted by the Select Committee for its depositions.
When former White House counsel Don McGahn testified to the House Judiciary Committee last year, after years of litigation resolved by agreement only after President Biden took office while Democrats retained the House, McGahn was not deposed. McGahn was merely interviewed, and the transcript shows that both a Justice Department lawyer and a representative of Trump's office were in the room.
The transcript shows the main difference between depositions and transcribed interviews. The former take place under oath, the latter do not. McGahn never swore an oath. But the House Judiciary had a cure for that. McGahn affirmed, upon questioning, that lying to Congress was a federal offense for which he could be prosecuted:
So based on past practice and my reading of the House deposition rules, my expectation is that Cipollone, like McGahn, will give a transcribed interview on Friday.
That will not only allow DOJ and Trump's counsel to attend, but it will also help DOJ to make sure that the negotiated boundaries for Cipollone's testimony are respected, including as they relate to executive privilege and attorney-client privilege. The DOJ lawyer repeatedly interjected at McGahn's interview, saying that McGahn's answers need to be limited to what is in the Mueller Report because other communications between executive branch officials were outside the scope of the agreement governing his appearance.
Some people outside the Beltway may be viewed as overly formalistic or even silly. You might wonder why a lawyer in Biden's Justice Department seems to have worked hard to protect Trump era privileges. If those lines aren't crossed, or even blurred, the reverberations would travel far beyond the January 6 investigation. As Republicans pledged to do as recently as this past weekend, think a different House majority is investigating Hunter Biden's business dealings and President Biden's connections thereto. Now imagine that same GOP majority insisting that DOJ and the president's personal counsel can't be in the room. The house and the DOJ are stacked with repeat players who know that what goes around comes around.
Watch this space to see how it all shakes out for Cipollone.