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Investigations, Compliance and Defense Rule Changes Suggest More Liberal Use of Deposition Authority in New Congress By: Emily M. Loeb and Andrew C. Noll

With the 116th Congress now sworn in, the Democratic Majority in the House of Representatives is poised to begin aggressively exercising its oversight authority. Indeed, House Democrats appear prepared to initiate a slew of investigations into the Administration of President Donald Trump.1 As we have previously noted, in-house counsel should be attuned to these developments, as the business community will almost certainly face renewed scrutiny from the new House majority.

At the beginning of the new Congress, the House adopted a package of new rules to govern the business of the House and its committees. Media coverage of the rules have focused on those changes that implicate hot-button social or political issues, including retention of the pay-as-you-go provision2; the creation of a Select Committee on the Climate Crisis; a new ban on discrimination against congressional staffers or applicants on the basis of sexual orientation and gender identity; and permitting the wearing of religious headdresses in the House chamber.3

Also included in the rules package—but subject to less attention—were provisions that provide House committees with greater flexibility to conduct investigations. The rules of the prior Congress had significantly increased the number of committees authorized to depose witnesses—extending to all standing committees (except the House Administration and Rules Committees) the authority to allow committee staff to take depositions.4 While the 115th Congress had expanded to some extent the circumstances in which a deposition could be taken, in practice, that power was limited by the requirement that a Member of Congress be present for a deposition in most cases.5 Moreover, the prior House rules required that any deposition before the House Committee on Oversight and Reform6 be conducted with a Member present without exception.7 Given the considerable demands on Members’ time, these requirements were often a significant limiting factor in committees’ ability to take depositions. The newly enacted rules package, however, removes the requirement that a Member of Congress must be present to utilize staff deposition authority for any standing committee with this authority, including the Committee on Oversight and Reform. The rules package expressly strikes the requirement from the Oversight and Reform Committee provision.8 And, the deposition authority granted to other committees simply provides that a deposition may be taken “by a member or counsel of such committee.”9 We believe that these provisions may significantly increase the ability of committee staff to take witness depositions and suggest that the Democratic majority plans to use its deposition authority liberally.

We also previously noted that in 2015, House Republicans granted unprecedented unilateral subpoena power to 14 separate House committee chairs, which generally meant that committee chairs could issue subpoenas without a vote and without consulting with the minority party.10 Although Democrats heavily criticized the move at the time, key House Democrats have indicated an intent to retain the authority for at least some committees.11 The rules package passed on January 3 retains the rule allowing House committees to delegate to the chair the power to authorize and issue subpoenas.12 Because the individual committees have not yet issued their rules for the 116th Congress, it is unknown at this time how many will retain this authority. Each committee must make their rules publicly available within 60 days of the beginning of the congressional session— we will know more by early March at the latest.13 [1] See Adam Cancryn, House Democrats prepare fusillade of Trump investigations, Politico (Jan. 7, 2019), https://www.politico.com/story/2019/01/07/congress-house-democrats-trump-subpoenas- oversight-1082563.

[2] The pay-as-you-go (or PAYGO) rule requires that any legislation that would increase entitlement program spending or decrease revenues be offset by other spending reductions or revenue increases, although Congress can waive application of the rule to any particular bill.

[3] See Lindsey McPherson, House adopts rules package with few Democratic defections over PAYGO provision, Roll Call (Jan. 3, 2019), https://www.rollcall.com/news/congress/house-adopts-rules-package- democratic-defections-paygo-provision; Ashley Killough, House passes rules package that allows religious headgear, creates climate change panel, CNN (Jan. 4, 2019), https://www.cnn.com/2019/01/03/politics/house-passes-rules-package/index.html; Tim Fitzsimons, New rule bans LGBTQ employment discrimination in House of Representatives, NBC News (Jan. 7, 2019), https://www.nbcnews.com/feature/nbc-out/new-rule-bans-lgbtq-employment-discrimination-house- representatives-n955851.

[4] H.R. Res. 5, 115th Cong. § 3(b)(1) (2017).

[5] Id. § 3(b)(3). There were two exceptions to this requirement: if the full committee authorized the deposition to be taken while the House was not in session, or if the witness waived the requirement.

[6] The rules package renames the Committee from the House Committee on Oversight and Government Reform, as it was known during the prior Congress. H.R. Res. 6, 116th Cong. § 102(f) (2019).

[7] House Rule X, cl. 4(c)(3)(B), 115th Cong. (2017).

[8] H.R. Res. 6 § 102(l).

[9] Id. § 103(1).

[10] See Michael L. Koempel, A Survey of House and Senate Committee Rules on Subpoenas, Congressional Research Service (Jan. 29, 2018), https://crsreports.congress.gov/product/pdf/R/R44247.

[11] Anthony Adragna, The Powerful Weapon House Republicans Handed Democrats, Politico (Oct. 28, 2018), https://www.politico.com/story/2018/10/28/house-republicans-subpoena-trump-943265.

[12] See Rule XI, cl. 2(m)(3)(A)(i), 115th Cong; H.R. Res. 6 § 101 (“The Rules of the House of Representatives of the One Hundred Fifteenth Congress, including applicable provisions of law or concurrent resolution that constituted rules of the House at the end of the One Hundred Fifteenth Congress, are adopted as the Rules of the House of Representatives of the One Hundred Sixteenth Congress, with amendments to the standing rules as provided in section 102, and with other orders as provided in this resolution.”).

[13] H.R. Res. 6 § 102(n); Rule XI, cl. 2(a)(2), 115th Cong. Contact Us

Emily M. Loeb [email protected] | Download V-Card Emily M. Loeb is a partner in the firm’s Government Controversies and Public Policy Litigation practice and the Investigations, Compliance and Defense practice. Prior to joining Jenner & Block, Ms. Loeb served as an Associate Counsel in the Office of the White House Counsel, where she advised senior White House and Executive Branch Agency officials on high priority litigation and congressional and internal investigations, managing risk on a variety of policy initiatives.

Andrew C. Noll [email protected] | Download V-Card Andrew C. Noll is an associate in the firm’s Appellate and Supreme Court; Government Controversies and Public Policy Litigation; and Media and First Amendment practice groups. His practice focuses on appellate and trial litigation and advising clients in complex constitutional, statutory and regulatory matters.

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