WASHINGTON – House committees conducting impeachment proceedings can’t force officials from executive branch agencies to testify about matters that might involve protected information without government lawyers present, the Justice Department said in a new legal opinion.
“Congressional subpoenas that purport to require executive branch witnesses to appear without agency counsel in these circumstances are legally invalid and are not subject to civil or criminal enforcement,” according to the Nov. 1 opinion released Monday by the department’s Office of Legal Counsel.
The opinion is the latest obstacle to efforts by the House Intelligence Committee and other panels to require testimony from White House officials in the impeachment investigation against President Donald Trump. House Intelligence Chairman Adam Schiff, a Democrat, has said that such obstacles will in themselves be taken as evidence that the administration is obstructing justice.
The Office of Legal Counsel advises executive branch agencies on constitutional issues and often seeks to protect presidential powers.
Schiff told reporters on Monday that agency lawyers aren’t allowed to be present during depositions “particularly when we have concerns about those agencies.”
House Democrats began releasing transcripts on Monday from closed-door depositions of officials who testified about the circumstances surrounding Trump’s effort to pressure Ukraine to conduct investigations that would benefit him politically.
Schiff said the transcript of Michael McKinley, a former senior adviser to Secretary of State Michael Pompeo, showed that the State Department was trying to bully officials to prevent them from testifying.
Schiff also said Republicans held closed-door depositions without agency lawyers when they were in charge of investigations and oversight.
The Justice Department said an Oct. 31 vote by the House to authorize impeachment proceedings doesn’t outweigh the obligation to protect information covered by executive privilege.
The House investigation “seeks information concerning presidential communications, internal executive branch deliberations, and diplomatic communications arising in connection with U.S. foreign relations with Ukraine.”
“Consistent with our prior advice, we conclude that the congressional committees participating in the impeachment investigation authorized by the resolution may not validly require executive branch witnesses to appear without the assistance of agency counsel in connection with such depositions,” the department said.