New House Provision Provides Additional Staff Deposition Authority without Members of Congress Being Present

Overview


On January 3, 2017, in one of the first acts of the US House of Representatives on the first day of the 115th Congress, the House took an action that ought to send a shiver up the spine of any business executive or any other person who might find himself or herself involved in a congressional inquiry.

In Depth


On January 3, 2017, in one of the first acts of the US House of Representatives on the first day of the 115th Congress, the House took an action that ought to send a shiver up the spine of any business executive or any other person who might find himself or herself involved in a congressional inquiry.

Tucked into Section 3(b) of House Resolution 5—a resolution adopting the rules that will govern the House for the next two years—was an amendment to the existing rules that provides congressional staff with new authority to conduct witness depositions without members of Congress present. The prior House rule allowed a witness to demand that a Member of the House to be present. The new rule provides as follows:

(b) Staff Deposition Authority—

(1) During the One Hundred Fifteen Congress, the chair of a standing committee (other than the Committee on House Administration or the Committee on Rules), and the chair of the Permanent Select Committee on Intelligence, upon consultation with the ranking minority member of such committee, may order the taking of depositions, including pursuant to subpoena, by a member or counsel of such committee.

(2) Depositions taken under the authority prescribed in this subsection shall be subject to regulations issued by the chair of the Committee on Rules and printed in the Congressional Record.

(3) At least one member of the committee shall be present at each deposition taken under the authority prescribed in this subsection, unless—

(A) the witness to be deposed agrees in writing to waive the requirement; or

(B) the committee authorizes the taking of a specified deposition without the presence of a member during a specified period, provided that the House is not in session on the day of the deposition.

As former House Energy and Commerce Committee Chairman Henry Waxman, who earned a well-deserved reputation as a tough but fair questioner during four decades in the House, told The National Journal in response to this recent change: “There’s too much power that’s unchecked, and I don’t feel great about members having it, let alone staff.”

Representative Louise Slaughter (D-NY), the ranking member on the House Rules Committee, was even more pointed, stating: “Freely handing out the power to compel any American to appear, sit in a room, and answer staff’s invasive questions on the record—without members even being required to be present—is truly unprecedented, unwarranted and offensive.”

The old rule was included in the “Procedures for the Use of Staff Deposition Authority,” which was inserted in the Congressional Record at the beginning of the 114th Congress. The rule was clear and unambiguous, stating: “At least one member of the committee shall be present at each deposition taken by the committee, unless the witness to be deposed agrees in writing to waive this requirement.”

There are good reasons for member presence at witness depositions. Members, who face voters, usually (but not always) maintain decorum that befits the House of Representatives. Members also are busy and tend to keep the questioning focused, while staff may not come to the heart of the matter quickly.

Now, under the new rule, unelected staffers—who are accountable only to the members of Congress who employ them—will be permitted to take witness depositions without the requirement that a member be present on days the members are not in town. You can expect very few if any depositions on days the House is actually in session.

The upshot of this rule change is that congressional staffers are now empowered to schedule depositions on days in which the House is not in session, enabling them to run such depositions without the presence of a member.

That is a bad idea that should be revisited and reversed.

The problem with staff depositions is that not all congressional staffers have strong experience taking depositions. Staff questions can be less than clear. Some staff members may bristle if the lawyer accompanying the client objects or raises issues.

To be sure, there are instances where “staff depositions” do not provoke as many issues or concerns. For example, the Senate Permanent Subcommittee on Investigations (PSI) has a long track record of having its counsel depose witnesses under oath in a respectful, professional and penetrating manner. Perhaps that is attributable to PSI’s history, where there is more emphasis on collegiality. Perhaps it is attributable to the generally bipartisan nature of most PSI’s inquiries. The chair and ranking member of PSI, more often than not, are in agreement that the matter under investigation deserves congressional scrutiny, and they generally are not trying to score partisan political points.

Unfortunately, though, the same cannot be said of every congressional committee or panel.

Take, for example, a recent encounter with a House ad hoc subcommittee during the 114th Congress. The majority staff pushed to conduct a deposition during a congressional recess. While the deponent had to defer to the subcommittee, it was still the deponent’s right to insist that members of the House be present during the deposition, as required by the rule then in place. The rule required that at least one member of the subcommittee be present during each hour of questioning, unless waived. As a result, the majority staff rescheduled the deposition for a day when the House was in session and members appeared throughout the day.

A number of members spent one hour at a time attending the deposition and almost all participated in some direct questioning of the deponent. In general, member participation kept the questioning focused and professional, despite the heated rhetoric and strong views related to the underlying topics. Of course there were exceptions: during the first hour, a member of the House majority shouted down objections raised by counsel and the minority, but most members acted with much greater decorum. Overall, this deposition and the entire investigation run by this subcommittee was very aggressive, partisan and involved little, if any, cooperation between the minority and majority—which is not typical of normal congressional staff behavior.

But this investigation illustrates precisely the problem of taking away a deponent’s right to insist on member presence.

Member presence will not always forestall or moderate every aspect of bad behavior or egregious lines of questioning, but it certainly makes it less likely. And, that is why maintaining the requirement that a member be present during a witness deposition is a requirement worth keeping.