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

by McDermott Will & Emery

McDermott Will & Emery

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McDermott Will & Emery | Attorney Advertising

Written by:

McDermott Will & Emery

McDermott Will & Emery on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.