WASHINGTON (CN) – Weeks into a blockade against administration officials cooperating in the impeachment inquiry of President Donald Trump, the Department of Justice said requests for testimony will not be considered legally valid unless a government lawyer sits in the interview.
Released Tuesday but dated Nov. 1, the memo comes from the Justice Department’s Office of Legal Counsel, the same office whose conclusion that a sitting president has been blamed for the anticlimactic end of former special counsel Robert Mueller’s Russia probe, despite evidence of several instances of obstruction of justice by Trump.
The latest OLC memo emerges as closed-door depositions from witnesses testifying on matters key to the impeachment inquiry winds down and ink has barely dried on a resolution passed in the House of Representatives outlining protocol available to lawmakers conducting the inquiry as it moves into its public phase.
“Congressional committees participating in an impeachment inquiry may not validly compel executive branch witnesses to testify about matters that potentially involve information protected by executive privilege without the assistance of agency counsel,” the memo states. “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.”
The memo highlights several categories of records as privy to executive privilege: all presidential communiques, records of internal executive branch deliberations and diplomatic communications specifically connected to U.S. foreign relations with Ukraine.
Representatives for the Department of Justice did not immediately respond to request for comment Tuesday afternoon.
To support its argument about requiring government counsel for the interview request to be considered valid, the department leans on the 1974 Supreme Court case, United States v. Nixon, where executive privilege for then President Richard Nixon was deemed “fundamental” to the operation of government and “inextricably rooted” in the separation of powers.
“While the privilege may yield to the legitimate needs of the judicial process in connection with a criminal trial, the court recognized that it is necessary to resolve those competing interests in a matter that preserves the essential functions of each branch,” this month’s memo states.
The department also cites a D.C. Circuit ruling that applied the same principle to grand jury investigations. That ruling found the president’s privileged communications should not be treated as merely any old source of information from which to draw.
Instead the D.C. Circuit found presidential communications or privileged materials can be provided to a grand jury only if it can be demonstrated that the evidence is relevant to an ongoing grand jury investigation.
A congressional committee should be held to the same standards, even if it can come up with compelling reasons to justify its interest, the OLC argues.
“Although the House Permanent Select Committee on Intelligence is willing to allow witnesses to appear with personal counsel, the accommodation process presupposes participation by appropriate representatives of the Executive Branch which cannot occur when a committee seeks to exclude agency counsel from the room,” the memo states.
Whether the OLC argument will hold up under scrutiny in court is uncertain. Just weeks ago, Chief U.S. District Judge Beryl Howell in Washington ordered the Justice Department to relinquish grand jury materials tied to Mueller’s probe.
Howell called the impeachment inquiry an exercise of “judicial power” and said impeachment trials are part of the judicial proceedings permitted under the Constitution.