House Republican Inquisition Excludes Agency Lawyering And Requires Government-Hired Counsel

The expected House Republican inquisition is upon us. It will involve a series of investigations of federal agencies, on issues such as covid guidance, global warming, “weaponization,” over-regulation, and so forth. A substantial part of the entire resources of the House of Representatives, very possibly many tens of millions of dollars, will go into these. The demands on agencies for documents to use in those investigations are already flowing in.

House investigating committees conduct “depositions” – Republican attorney staff taking subpoenaed agency witnesses into the basement of the Rayburn Building. This crew can be expected to question hostilely and harshly, intimidating witnesses to give way to narratives that are slanted and dubious at best, if not outright conspiratorial.

Traditionally, at least the subpoenaed agency witnesses could have their own agency’s counsel by their side, providing both legal representation and moral support without charge to the witness. The House Rules didn’t say otherwise when I was General Counsel of the House of Representatives.

Not this time. In January the House Republicans passed a deposition rule saying, in effect, “pay from your own pocket, or do without your rights.” Specifically the 2023 House Rule says:

PERSONS PERMITTED TO ATTEND DEPOSITIONS.—Deponents may be accompanied at a deposition by two designated personal, nongovernmental attorneys to advise 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 two designated attorneys are permitted to attend. Other persons, including government agency personnel, may not attend.

To repeat: the new House Republican inquisitions are set to crush the agency witnesses with unfair tactics without agency counsel present, and then use what is thereby elicited by the third degree in stacked public hearings.

You hear otherwise. Some say, for one reason or another, it won’t be so bad.

Some say, maybe there will not be many depositions. Why worry ahead? Some say, all the hearings will be conducted with untrained House Republican Congressmen throwing unsupported charges ignoring the vast unperused documents dredged from agency files, without building a foundation with staff depositions. Sure, there will be plenty of amateur hours at hearings, but very often this crew will also want the red carpet laid out for them over the bodies of pummeled agency witnesses.

Some others say, the agencies will just flout the House Rule and refuse to furnish witnesses without agency counsel. Sure, the Justice Department and the FBI may tough it out that way. They have precedent. But they are unique. They have unique powers and constitutional status to protect them. When other agencies consider imitating, they must expect the fierce charge of “stonewalling” duly reported in the press. The song from House Republicans: “you must have so much to hide, that’s why you don’t furnish the witnesses” Not to mention subpoena enforcement on a scale never seen before. There could be any number of agency witnesses held in contempt for not showing up per their subpoena.

There is a way out to protect the witnesses. It has been upheld many times that the government can hire counsel for such agency witnesses. In a related context, this has already happened. Anticipating the impeachment of Secretary of Homeland Security Alejandro Mayorkas, the government has hired private counsel to make his case.

What would happen if the government failed to hire such counsel for agency witnesses?

First, the witnesses will not know their rights. They do have rights. But, lay witnesses will find it hard to argue, by themselves and unsupported, with several tough committee lawyers who bite off, and chew into bits, unrepresented witnesses. In contrast, with their lawyer there, he or she will know how to fight off, for example, questions by trickery asking for speculation.

Second, and perhaps worse, the witnesses will have to pay out of their own pocket for private lawyers. That seems how the House Rule is worded. “Personal” counsel. The witnesses we are talking about are not Elon Musk and Bill Gates. These are civil servants with limited means, families they support, and often heavy obligations. House Republican counsel can outspend them into the poorhouse by obliging them to personally pay for private lawyers.

It might also be noted that the harm, though falling first on the agency witnesses, will knock down the agencies and the public too. The agency record will be besmirched and the public misled. Necessary clarifications will not have been made. The witness’s intimidation-induced smallest missteps will be blown up to disproportion. Harmless forwarding of e-mail chains will blaze into asserted smoking guns. House Republican sly leaks and distorted retellings at hearings will undermine the agency and deceive the public.

Overstatement by this author? House Republicans are betting otherwise.

Disclosure: The author was General Counsel of the House of Representatives. He has represented agency witnesses and wants to again.