January 31, 2024

The Honorable Jim Jordan

Chairman
Committee on the Judiciary
United States House of Representatives
Washington, D.C. 20515

Dear Chairman Jordan:

This letter responds to your January 29, 2024, letter rejecting our good-faith offer to
make former White House officials Robert Flaherty and Andrew Slavitt available for voluntary
transcribed interviews accompanied by personal and government counsel. Your continued
refusal to allow government counsel to accompany the witnesses during their questioning is
contrary to decades of precedent, the constitutional separation of powers, and the positions taken
by administrations of both parties. Accordingly, as administrations of both parties have
previously done to protect the separation of powers and the institutional interests of the White
House, we cannot authorize Mr. Flaherty or Mr. Slavitt to appear at the Committee’s scheduled
depositions. We remain committed to the accommodation process and stand by our offer to
arrange voluntary appearances by Mr. Flaherty and Mr. Slavitt before the Committee under
appropriate conditions, which will allow the Committee to obtain the information it seeks while
respecting the rights of the witnesses and the constitutional interests of the Executive Branch.

As an initial matter, we would like to correct some of the inaccuracies in your most
recent letter. Throughout the accommodation process, we have explained that we have serious
legal and constitutional concerns about the requests for testimony from Mr. Flaherty and
Mr. Slavitt, but that we were willing to find a path forward that would satisfy the Committee’s
legitimate informational needs while respecting Executive Branch confidentiality interests. 1 To
that end, on December 21, 2023, we offered to make Mr. Flaherty and Mr. Slavitt available to
answer written interrogatories from all Committee members who wish to ask them—an offer that
was consistent with discovery permitted by the courts in parallel, ongoing litigation. 2 Nearly two
weeks later, you rejected that offer. 3

1
See, e.g., Letters from Special Counsel to the President Richard Sauber, The White House, to Chairman Jim
Jordan, House Committee on the Judiciary, on May 19, 2023, June 29, 2023, Oct. 13, 2023, Dec. 15, 2023, Dec. 22,
2023, Jan. 5, 2024, and Jan. 22, 2024.
2
Telephone conference between staff, The White House, and staff, House Committee on the Judiciary (Dec. 21,
2023); see also Letter from Special Counsel to the President Richard Sauber, The White House, to Chairman Jim
Jordan, House Committee on the Judiciary (Dec. 22, 2023) (memorializing offer).
3
Letter from Chairman Jim Jordan, House Committee on the Judiciary, to Special Counsel to the President Richard
Sauber, The White House (Jan. 2, 2024).
The Honorable Jim Jordan
Page 2

On January 8, following our request for a list of topics that the Committee wanted to raise
with Mr. Flaherty and Mr. Slavitt, your staff provided lists of 22 topics for Mr. Flaherty and
Mr. Slavitt respectively, which included several topics directly implicating longstanding
Executive Branch confidentiality interests and constitutional privileges. 4 The next day, we
explained our substantial concerns regarding the subpoenas and the list of topics during a phone
call with your staff. Despite these concerns and in an attempt to find a mutually agreeable
resolution, we conveyed that we were willing to make Mr. Flaherty and Mr. Slavitt available for
voluntary transcribed interviews as an extraordinary accommodation under appropriate
conditions. We made clear that it was important for the White House Counsel’s Office to
participate in Mr. Flaherty’s and Mr. Slavitt’s interviews particularly in light of the significant
separations of powers issues and Executive Branch confidentiality interests raised by the topics
your staff identified. We also noted that congressional committees routinely permit government
and personal counsel to participate in transcribed interviews, citing numerous examples. 5 Your
staff agreed to take the request back to you. 6

We did not receive a substantive response from the Committee to our offer. On January
22, in an effort to memorialize the offer of extraordinary accommodation that we previously
conveyed to Committee staff, we sent a letter further explaining our constitutional and legal
concerns and again making clear that we were willing to make Mr. Flaherty and Mr. Slavitt
available for voluntary transcribed interviews provided that the witnesses were accompanied by
personal counsel and the White House Counsel’s Office and that we reached agreement
regarding the conditions and scope of the interviews. 7

After the Committee again failed to respond to our offer, we reached out on January 25 to
arrange a conversation with your staff. On the afternoon of January 29, your staff indicated for
the first time that the Committee planned to reject our offer of accommodation. 8 Our staff asked
the Committee to reconsider, noting that we were offering an extraordinary accommodation that
would allow the Committee’s interviews to move forward without delay.

In response, we received your January 29 letter rejecting our proposed accommodation

and merely offering to allow staff from the White House Counsel’s Office “to remain physically
present just outside the Committee room in which the deposition[s] will occur.” 9 The letter

4
Email from staff, House Committee on the Judiciary, to staff, The White House (Jan. 8, 2024).
5
See generally Letter from Special Counsel to the President Richard Sauber, The White House, to Chairman Jim
Jordan, House Committee on the Judiciary (Jan. 22, 2024) (listing examples).
6
Telephone conference between staff, The White House, and staff, House Committee on the Judiciary (Jan. 9,
2024).
7
Letter from Special Counsel to the President Richard Sauber, The White House, to Chairman Jim Jordan, House
Committee on the Judiciary (Jan. 22, 2024).
8
Telephone conference between staff, The White House, and staff, House Committee on the Judiciary (Jan. 29,
2024).
9
Letter from Chairman Jim Jordan, House Committee on the Judiciary, to Assistant to the President and Chief of
Staff Jeff Zients, The White House (Jan. 29, 2024).
The Honorable Jim Jordan
Page 3

identified no valid basis for excluding the White House Counsel’s Office from depositions or
interviews with former senior White House officials about their official duties.

As we previously explained in our January 22 letter, the well-established practice of

government employees appearing voluntarily with both personal and government counsel
recognizes the different interests that personal counsel and government counsel represent and
facilitates the provision of information to Congress by the Executive Branch. 10 Administrations
of both parties have recognized that government counsel plays an integral role in “protecting the
Executive Branch’s interests during [a] deposition,” since current or former Executive Branch
employees may be asked questions that implicate information protected by Executive Branch
confidentiality interests and government counsel need to “intervene before that information is
disclosed, lest the effectiveness of the privilege be diminished.” 11 The presence of personal
counsel does not suffice to alleviate separation of powers concerns, because they do not
represent the interests of the White House and are not as well-equipped as the White House
Counsel’s Office to know when a line of questioning “might intrude upon the Executive
Branch’s constitutionally protected interests.” 12 As the Department of Justice has explained,
excluding government counsel in these circumstances undermines the Executive Branch’s ability
to protect its confidentiality interests in the course of the constitutionally mandated
accommodation process. 13 The Committee’s purported alternative—to permit staff from the
White House Counsel’s Office to sit outside the deposition—is merely another way of saying
that that government lawyers are barred from the deposition itself. This proposal is inadequate to
remedy these constitutional concerns—and has previously been found inadequate by
administrations of both parties. 14

10
See Letter from Special Counsel to the President Richard Sauber, The White House, to Chairman Jim Jordan,
House Committee on the Judiciary (Jan. 22, 2024) (citing Attempted Exclusion of Agency Counsel from
Congressional Depositions of Agency Employees, 43 Op. O.L.C. __, at *13, *17 (May 23, 2019); Authority of the
Department of Health and Human Services to Pay for Private Counsel to Represent an Employee Before
Congressional Committees, 41 Op. O.L.C. __, at *9-10 (Jan. 18, 2017); Representation of White House Employees,
4B Op. O.L.C. 749, 753-54 (1980)).
11
Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __,
at *10-11, *13.
12
Id. at *17 (“Even if the private counsel may sometimes assist the agency employee in protecting agency
information, the Committee cannot require the Executive Branch to rely upon the private counsel to make
such judgments. Private counsel is not likely to know as well as agency counsel when a line of
questioning, especially an unanticipated one, might intrude upon the Executive Branch’s constitutionally
protected interests.”).
13
Id. at *2.
14
E.g., id. at *17-18 (noting that because the proposed accommodation would leave judgments about whether a
question may implicate potential privilege concerns “entirely up to the employee and his private counsel, as well as
depend on the discretion of the Committee’s staff to grant the requested break, it would not adequately ensure that
the agency could make the necessary decisions to protect privileged information during the course of the
deposition”). For instance, former Trump Administration officials John Gore and Carl Kline declined to appear for
depositions pursuant to subpoenas issued by the House Committee on Oversight and Reform during the 116th
Congress consistent with the Office of Legal Counsel’s advice regarding the exclusion of government counsel. See
Top Justice Department Official Will Defy Congress, The Daily Beast (Apr. 24, 2019) (online at
https://www.thedailybeast.com/john-gore-a-top-doj-official-will-defy-congress).
The Honorable Jim Jordan
Page 4

As the Department of Justice made clear in the prior administration, a congressional

subpoena that purports to compel testimony on potentially privileged matters within the scope of
a current or former White House employee’s official duties, without the presence of government
counsel, is without legal effect and cannot constitutionally be enforced. 15 Here, the subpoenas
issued by the Committee prohibit the attendance of government counsel at appearances where
the Committee has indicated it will ask questions regarding, among other topics, Mr. Flaherty’s
and Mr. Slavitt’s interactions with the President and other senior Administration officials, and
confidential information Mr. Flaherty and Mr. Slavitt learned and actions undertaken within the
scope of their official duties. Accordingly, to protect the constitutional separation of powers and
the institutional interests of the White House, the White House does not authorize Mr. Flaherty
or Mr. Slavitt to appear at the Committee’s scheduled depositions.

Despite your rejection of our offer, we remain committed to working in good faith with
you and your staff to get the Committee the information it needs while respecting the interests of
the witnesses and the Executive Branch. We stand ready to make Mr. Flaherty and Mr. Slavitt
available to answer questions from the Committee at voluntary transcribed interviews
accompanied by personal counsel and the White House Counsel’s Office under appropriate
conditions at mutually agreeable future dates. In this setting, we anticipate that the witnesses
would be able to provide substantial information on several topics that the Committee staff
identified as priorities. For topics the Committee identified that are more likely to raise
concerns, including implicating Executive Branch confidentiality interests—such as those
described in our January 22 letter—we would address these issues through the accommodation
process, consistent with the policies and practices articulated in President Reagan’s
Memorandum in 1982. 16 In particular, we commit to work in good faith during the interviews—
and afterwards if necessary—to narrow areas of dispute and prevent needless conflict between
the branches.

We look forward to continuing to work with you and the Committee. Please let us know
if you have additional questions.

Sincerely,

Richard Sauber
Special Counsel to the President

cc: The Honorable Jerrold Nadler, Ranking Member

Committee on the Judiciary

15
Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. __,
at *13-14, *19.
16
See generally Memorandum for the Heads of Executive Departments and Agencies, from Ronald Reagan,
Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982).