- independent prosecutor was appointed to investigate President Trump's conduct regarding Ukraine. Attorney General William P. Barr refused to authorize a criminal investigation into the serious allegations of misconduct, and even this decision was limited to possible violations of federal campaign finance laws.93 The investigative Committees proceeded consistent with the House's rules of procedure and in keeping with investigative best practices, including the need to reduce the risk that witnesses may try to coordinate or align testimony. As the House explained in its report accompanying House Resolution 660:
The initial stages of an impeachment inquiry in the House are akin to those preceding a prosecutorial charging decision. Under this process, the House is responsible for collecting the evidence and, rather than weighing the question of returning an indictment, the Members of the House have the obligation to decide whether to approve articles of impeachment.94
The Committees have released transcripts of all interviews and depositions conducted during the investigation. As these transcripts make clear, all Members of all three Committees—including 47 Republican Members of Congress—had the opportunity to ask questions, and these transcripts are now available to the President and his counsel. These same procedures were supported by Acting White House Chief of Staff Mick Mulvaney when he served as a Member of the Oversight Committee and by Secretary of State Mike Pompeo when he served as a Member of the Benghazi Select Committee. In fact, some of the same Members and staff currently conducting depositions as part of the present impeachment inquiry participated directly in depositions during the Clinton, Bush, and Obama Administrations.95 The Intelligence Committee also held public hearings with 12 of these witnesses.
- Agency Attorneys Can Be (And Should Be) Excluded from Depositions: According to Mr. Cipollone, "it is unconstitutional to exclude agency counsel from participating in congressional depositions."96 Mr. Cipollone cites no case law to support his position—because there is none. Instead, he relies on a single opinion from the Trump Administration's Office of Legal Counsel and ignores the ample legal authority and historical precedent that clearly support the Committees' actions. For example, the Constitution expressly delegates to Congress the authority to "determine the Rules of its Proceedings,"97 which includes the power to determine the procedures used for gathering information from witnesses whether via interview, staff deposition, or in a public hearing.98 The basis for the rule excluding agency counsel is straightforward: it prevents agency officials who are directly implicated in the abuses Congress is investigating from trying to prevent their own employees from coming forward to tell the truth to Congress. The rule protects the rights of witnesses by allowing them to be accompanied in depositions by personal counsel. Agency attorneys have been excluded from Congressional depositions of Executive Branch officials for decades, under both Republicans and Democrats, including Chairmen Dan Burton, Henry Waxman, Darrell Issa, Jason Chaffetz, Trey Gowdy, Kevin Brady, and Jeb Hensarling, among others.99
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