Big Change For Witness Privilege In House Investigations

Sam Dewey and Llewelyn Engel authored this bylined article on a recent rule change for congressional investigations, which will impact Executive Branch witnesses and private sector executives giving depositions.

On Jan. 25, 2019, U.S. House of Representatives Rules Committee Chairman James P. McGovern, D-Mass., issued regulations governing staff deposition authority in the 116th Congress, pursuant to his authority under H. Res. 6. In passing H. Res. 6, the newly empowered House Democratic majority drastically increased House committees’ investigative power by allowing committee staff to conduct depositions without members present — a stark departure from precedent.This change was a dramatic first step in the House Democratic majority’s efforts to ramp up oversight of both the executive branch and the private sector.

The newly issued regulations redouble this effort by making it considerably easier for committees to overrule privilege objections during depositions. As a result, deponents asserting privilege are more likely to be confronted with the choice of either answering the committees’ questions or standing in contempt.The import of this move is clear. With oversight now in hyperdrive, the House intends to aggressively assert its long claimed prerogative to both overrule executive branch claims of privilege and to refuse to honor private parties’ assertions of the attorney-client privilege and other common law privileges.

When the 114th Congress first expanded staff deposition authority, the regulations governing the taking of depositions contained an unwieldy procedure that prevented a committee chairman from contemporaneously ruling on objections and ordering and directing a witness to answer.

Specifically: all objections were held in abeyance until the deposition recessed; a chairman could only rule on an objection during the recess and only in writing; and the deposition had to remain in recess for an additional three days following the chairman providing the ruling to the witness and the committee, and only then could the deposition reconvene and the witness be ordered and directed to answer the committee’s questions. Additionally, the witness had the right to appeal the chairman’s ruling to the committee and force the committee to take a roll-call vote on the objection prior to initiating the mark-up of a contempt citation. This procedure stood in sharp contrast to the rules governing the few Senate committees in the 114th Congress that possessed staff deposition authority.

Under the Senate committees’ rules, a chairman could rule on objections and order and direct a witness to answer contemporaneously. A witness’s failure to then answer could be met with an immediate committee citation for contempt. The Senate regulations remained in substantially the same form during the 115th Congress.

As a practical matter, the former House deposition regulations imposed serious logistical costs on overruling privilege objections (particularly when combined with the then extant member presence requirement). First, as a scheduling matter, it is decidedly inconvenient to recess a deposition, process a written ruling, and then reconvene a deposition. Second, a recalcitrant witness could force the committee to repeatedly go through this time-consuming procedure by narrowly asserting privilege to one set of questions at a time, causing a delay between each question. By this mechanism, objections could be stacked on objections, allowing the witness to essentially filibuster the committee. These restraints on the process were intentional — the prior rules were designed make overruling an objection an exceedingly rare event.

Because the regulation’s rules now grant the chairman the power to contemporaneously overrule objections and order and direct witnesses to answer — be it by telephone, written order or personal presence — there is no delay and no ability to game the system. A witness who stands by an objection that is overruled may be immediately held in contempt and forced to face the legal consequences. Additionally, only a member is now permitted to appeal a chairman’s ruling.

This change will have its greatest impact on executive branch witnesses seeking to assert privileges unique to the executive branch. Undoubtedly, the House Democratic majority enacted the change to facilitate aggressive oversight of the administration. The change could place executive branch witnesses in the incredibly uncomfortable position of facing personal criminal liability for following directions from the administration to assert privilege. Historically, this position is often an unsustainable state of affairs and has often resulted in the administration providing the requested information.

While the greatest impact of the change will undoubtedly be on executive branch witnesses, it would be a mistake to view this change as agnostic to the private sector. Congress has long taken the position that it need not honor common law privileges, and Democratic chairmen in the past have repeatedly overruled claims of attorney-client privilege by private sector actors.

As the House probes a variety of issue targeting the private sector, we fully expect to see House committees demand information that would normally be protected by the attorney-client privilege in judicial settings. The rule change now makes it significantly easier for the Democratic chairman to overrule privilege claims made by senior executives and compel them to reveal information that would undoubtedly be protected by a common law privilege in a judicial forum. The change may even lead to private corporate counsel being forced to testify in detail regarding advice they gave their client.

The rule change foretells the more aggressive oversight role the new House Democratic majority will take this Congress. Private sector executives and executive branch officials can no longer rely on common law privilege to protect confidential information and must prepare for faster moving and more combative oversight proceedings.