The summer of 2022 is turning out to be the summer of legislative investigations and their own special kind of deposition. These depositions are unique in the law, and they can materialize as quickly as a summer thunderstorm.
Americans following the activities of the House Select Committee to Investigate the January 6th Attack on the United States Capitol are reading almost daily about “depositions” and “interviews” of high-profile witnesses — and wondering what is going on here and if there is a difference between these two processes.
Outside the political realm, the owner of the Washington Commanders professional football team attracted a deposition subpoena from the chair of the House Committee on Oversight and Reform — although he appears less than enthusiastic about the prospect of sitting for a deposition with committee counsel.
At the state level, the tragic deaths of 21 schoolchildren in Uvalde, Texas, on May 24 has already prompted Texas legislators to issue a deposition subpoena for the testimony of Uvalde County Sheriff Ruben Nolasco, who, according to news reports, is refusing to voluntarily give his version of the events of that day.
What is going on here? In a nutshell, these legislative “depositions” are investigatory processes that take place outside traditional judicial processes with few of the procedural protections that accompany pretrial discovery depositions in civil litigation. These “depositions” are not part of a criminal prosecution or a civil lawsuit. They’re conducted by legislators, not prosecutors. And they won’t necessarily lead to criminal charges against anyone. They’re a tool for the legislators to find facts, and nothing more.
Yes, testimony during legislative depositions is given under oath and is transcribed by a court reporter. But as we explain below, the similarity with pretrial discovery depositions ends there.
Congressional Investigators Make Their Own Rules
When Congress decides to conduct an investigation, it has five main tools to do so.
First, any member of Congress may send a letter to an individual or company seeking information. Responding to these inquiries is entirely voluntary.
Second, congressional committee staffers may seek an informal interview with persons who may have information of interest to the committee. Participants in these interviews are typically not placed under oath, although persons who make false statements to committee staffers do risk prosecution for making false statements.
Third, all committees in the 117th Congress have the authority to issue subpoenas for documents and deposition testimony. Subpoenas can be issued by the committee chair without the need for a committee vote. Committee depositions are conducted in private by committee staffers.
Fourth, committees have the authority to conduct public hearings. These hearings tend to occur near the end of an investigation, after requests for information have been sent and interviews and depositions have been conducted.
Fifth, and finally, congressional committees can make a referral to the U.S. Department of Justice for additional investigation and possible prosecution. When this happens, the information collected during committee interviews, depositions and document requests is transmitted to the DOJ for consideration and further investigation.
This article summarizes the most important features of the third investigatory tool, the congressional committee deposition.
Congressional committee investigations occur without judicial supervision, according to rules approved in the House and Senate. Each body has its own rules, and in some cases, committees have their own rules for conducting investigations. It is not possible for the subject of a congressional committee deposition to file a motion for a protective order preventing the deposition or limiting the scope of inquiry. The only ways for a deposition witness to assert legal rights are to (1) negotiate ground rules with the committee or (2) file a lawsuit in federal court seeking to limit the scope of, or prevent, the deposition.
Limited Role for Attorneys, Limited Rights to Appeal
In the House of Representatives, House Resolution 8, adopted Jan. 4, 2021, gives the chair of each standing committee the authority to order the taking of depositions after consultation with the ranking minority member. “Consultation” isn’t the same thing as negotiation, however. It’s more like notice — regulations spelling out the details of congressional committee depositions make clear that the consultation requirement can be met by giving the ranking minority member three days’ notice of the deposition. See 117th Congress Regulations for Use of Deposition Authority, published in the Congressional Record for Jan.4, 2021, at p. H41.
These regulations describe a deposition process markedly different from the freewheeling (but judicially supervised) depositions conducted by courtroom litigators. For example:
- Depositions are taken by committee staff lawyers, and there is no need for committee members to be present during the deposition.
- Deposition witnesses have the right to have their lawyer present during the deposition “to advise them of their rights.”
- Objections raised during the deposition are ruled upon by the committee chair.
- Witnesses are questioned in alternating 60-minute rounds for majority and minority staff lawyers, with no more than two lawyers conducting the questioning for each side at any one time.
- The grounds for objecting to particular questions are limited. The regulations provide that “[a] witness’s counsel may not instruct a witness to refuse to answer a question, except to preserve a privilege” and “[t]he witness may refuse to answer a question only to preserve a privilege.”
- Objections must be made in a “non-argumentative and non-suggestive” manner. (A good practice for pretrial discovery depositions too.)
According to the Congressional Research Service’s Congressional Oversight Manual, committee depositions enable congressional investigators to efficiently collect and verify information in a manner that preserves the rights of witnesses and third parties. The manual states:
Staff depositions afford a number of significant advantages for committees engaged in complex investigations, including the ability to obtain sworn testimony quickly and confidentially without the necessity of Members devoting time to lengthy hearings that may be unproductive because witnesses do not have the facts needed by the committee or refuse to cooperate. Depositions also occur in private, which may be more conducive to candid responses than public hearings. Depositions also provide committees with an opportunity to verify witness statements that might defame or tend to incriminate third parties before they are repeated publicly and prepare for hearings by screening witness testimony in advance, which may obviate the need to call other witnesses.
Witnesses who testify at congressional depositions are placed under oath. False statements made during a committee deposition can be prosecuted under the federal False Statements Accountability Act, 18 U.S.C. 1001, which criminalizes false statements made during “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.”
For lawyers or anyone interested in the inner workings of our legal system (we certainly include ourselves in this group), committee investigations are an unparalleled opportunity to observe the legal profession at its best. The stakes are high. The public is engaged. The ground rules are novel, or non-existent, or subject to negotiation. And the lawyers are exemplifying the highest standards of the legal profession: combining legal research, intellectual rigor, experience, and professional judgment to deliver the best possible outcome for a client in legal peril.