Today brought a flurry of coverage about former White House attorney Pat Cipollone’s testimony to the Select Committee this Friday. But there’s some confusion over one detail: will Cipollone give a? transcribed interview, as CNN and The New York Times have reported, or will he sit for a standard statement? For example, the Washington Post noted “it is unclear what limits there may be on his testimony behind closed doors.”
You might murmur, “Does this really matter to anyone other than egghead lawyers?” But hey, it matters for a variety of reasons, not least who gets to go in the proverbial sense.”Room where it happens†
At the beginning of each congress, the House Rules Committee states: “regulations” for the use of deposits by standing committees, or the regular, standing committees of the House. One of those regulations provides:
†Witnesses may be accompanied by personal, non-governmental counsel on affidavit to remind them of their rights. Only members, committee officers designated by the chairperson or ranking minority member, an official reporter, the witness and the witness’s counsel may attend. Observers or counsel for other persons, including counsel for government agencies, should not be present.†
In other words, no person from the DOJ, the office of the White House attorney, or the personal counsel of a president has any right to attend a House statement, even if the person is a current or former executive officer. power is. The select committee has also adopted these rules for its depositions†
Note, however, that when former White House counsel Don McGahn testified before the House Judiciary Committee last year — after years of disputes resolved by agreement only after President Biden took office while Democrats held onto the House — McGahn was not impeached. Instead of, McGahn was interviewed aloneand the transcript shows that both a Justice Department attorney and a representative from Trump’s office were in the room.
That transcript also highlights another key difference between depositions and transcribed interviews. The first takes place under oath† the latter does not. And that’s why McGahn never swore an oath. But House Judiciary had a cure for that: McGahn, when questioned, confirmed that lying to Congress is a federal offense for which he could be prosecuted:
Mr Hiller. While this interview is not under oath, federal law requires you to truthfully answer questions from Congress. Do you understand this?
Mr. McGahn. Yes.
Mr Hiller. The same obligation applies to questions from congress staff. Do you understand this too?
Mr. McGahn. Yes.
Mr Hiller. Witnesses who knowingly give false testimony may be subject to criminal charges under 18 USC Section 1001. Do you understand?
Mr. McGahn. Yes.
Mr Hiller. Is there a reason why you can’t give truthful answers to today’s questions?
Mr. McGahn. No.
So based on past practice and my reading of the home deposition rules, I expect Cipollone, like McGahn, to give a transcribed interview Friday.
That will not only allow DOJ and Trump counsel to attend, but also help DOJ ensure that negotiated limits for Cipollone’s testimony, including those pertaining to executive privilege and/or the privilege of attorney-client, are respected. For example, during the interview with McGahn, the DOJ attorney repeatedly intervened, stressing that McGahn’s answers “should 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.
The outlines of such agreements can appear overly formalistic or even silly to people outside the ring road. You may also wonder why a Biden Justice Department attorney appears to have worked hard to protect Trump-era privileges. But if those lines are crossed or even blurred, the reflections would extend well beyond the Jan. 6 study. Imagine another House majority investigates Hunter Biden’s business dealings and President Biden’s connections to it, as GOP leaders promised to do this past weekend. And now imagine that same GOP majority who insists that DOJ and the President’s personal counsel are not allowed to be in the room. DOJ and the House are full of returning players who know full well that what goes around, comes around.
Check out this space to see how it all plays out for Cipollone.