Why it matters HOW Pat Cipollone testifies

Today brought a flurry of reporting about former White House Counsel Pat Cipollone’s testifying to the Select Committee this Friday. But there is some confusion about one detail: Will Cipollone be giving a transcribed interview, as CNN and The New York Times, have reported, or will he sit for a standard deposition? The Washington Post, for example, noted “it’s unclear what limits there may be on his closed-door testimony.”

You might be muttering, “Does this really matter to anyone but egghead lawyers?” But yes, it does matter for several reasons, not the least of which concerns who is allowed in the proverbial “Room Where It Happens.”

At the beginning of each Congress, the House Rules Committee issues “regulations” for the use of depositions by standing committees, or the regular, permanent committees, of the House. One of those regulations provides:

“Witnesses may be accompanied at a deposition by personal, nongovernmental counsel 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 counsel are permitted to attend. Observers or counsel for other persons, including counsel for government agencies, may not attend.”

In other words, at a House deposition, none of DOJ, the White House counsel’s office, or a president’s personal counsel has any right to attend, even if the person is a current or former executive branch official. The Select Committee has adopted these rules for its depositions too.

Note, however, when former White House Counsel Don McGahn testified to the House Judiciary Committee last year — after years of litigation resolved by agreement only after President Biden took office while Democrats retained the House — McGahn was not deposed. Instead, McGahn was merely interviewed, and the transcript reveals that both a Justice Department lawyer and a representative of Trump’s office were in the room.

That transcript also highlights another key difference between depositions and transcribed interviews. The former take place under oath; the latter do not. And therefore, McGahn never swore an oath. But House Judiciary had a cure for that: McGahn affirmed, upon questioning, that lying to Congress is a federal offense for which he could be prosecuted:

So based on past practice and my reading of the House deposition rules, my expectation is that Cipollone, like McGahn, will give a transcribed interview on Friday.

That will not only allow DOJ and Trump’s counsel to attend, but also help DOJ ensure that the negotiated boundaries for Cipollone’s testimony, including as they relate to executive privilege and/or attorney-client privilege, are respected. For example, at McGahn’s interview, the DOJ lawyer interjected repeatedly, insisting that McGahn’s answers “need to be limited to what’s in the [Mueller] Report because [other] communications between executive branch officials” were outside the scope of the agreement governing his appearance.

The contours of such agreements might strike folks outside the Beltway as overly formalistic or even silly. You also might wonder why a lawyer in Biden’s Justice Department seems to have worked hard to protect Trump-era privileges. But if those lines are transgressed, or even blurred, the reverberations would travel far beyond the January 6 investigation. Envision a different House majority investigating Hunter Biden’s business dealings and President Biden’s connections thereto, as GOP leaders pledged to do as recently as this past weekend. And now imagine that same GOP majority insisting that DOJ and the president’s personal counsel can't be in the room. DOJ and the House are stacked with repeat players who know well that what goes around comes around.

Watch this space to see how it all shakes out for Cipollone.