THE SECRETARY OF STATE
WASHINGTON

October 1, 2019

The Honorable

Eliot L. Engel, Chairman
Committee on Foreign Affairs
House of Representatives
Washington, DC 20515

Dear Mr. Chairman:

We are in receipt of your September 27, 2019 letter requesting the Department to voluntarily
make available ?ve current and former Department of?cials for depositions.

I am concerned with aspects of your request, described more fully below, that can be understood
only as an attempt to intimidate, bully, and treat improperly the distinguished professionals of the
Department of State, including several career Foreign Service Of?cers, whom the Committee is
now targeting. I have also been made aware that Committee staff has been sending intimidating
communications to career Department professionals, who have speci?cally asked for Committee
communications to be channeled through the Bureau of Legislative Affairs, as is customary. Let
me be clear: I will not tolerate such tactics, and I will use all means at my disposal to prevent
and expose any attempts to intimidate the dedicated professionals whom I am proud to lead and
serve alongside at the Department of State.

Your letter also raises signi?cant legal and procedural concerns. First, your letter raises
fundamental legal questions related to the authority of the Committee to compel an appearance
for a deposition solely by virtue of these letters. Your letter implies that you have sought to
compel Department of?cials to appear for depositions on the identi?ed dates, yet the Committee
has not issued any subpoenas for depositions, and we are not aware of any other authority by
which the committee could compel appearance at a deposition. The House Rules also require the
Committee to provide a Notice of Deposition, but your letter contains no such notice and
otherwise fails to meet the requirements of those rules. It therefore appears that your letter may
only be read as a request for a voluntary appearance of the ?ve Department of?cials.

Second, your letter provides a woefully inadequate opportunity for the Department and the
requested witnesses to prepare. These individuals have retained, or may be retaining, private
counsel, as is their constitutional right, and in the course of the Department?s discussions with
these individuals, several have indicated that they need more time both to retain and to consult
with private counsel. In addition, State Department counsel must consult with these of?cials and
their counsel, once retained, regarding the Department?s legitimate interests in safeguarding
potentially privileged and classi?ed information. The proposed dates for the depositions do not
provide adequate time for the Department and its employees to appropriately prepare.

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Third, your letter, and subsequent communications by Committee staff, indicate that the
Committee intends to prevent State Department counsel from participating in the depositions of
current and former Department of?cials. This amounts to an attempt to circumvent the
Executive Branch?s unquestionably legitimate constitutional interest in protecting potentially
privileged information related to the conduct of diplomatic relations. This information may also
remain subject to federal rules relating to the unauthorized disclosure of classi?ed information.
As the Department of Justice has made clear, a congressional committee may not validly prohibit
agency counsel from being present during an employee deposition, because such an exclusion
?would impair the President?s constitutional authority to control the disclosure of privileged
information and to supervise the Executive Branch?s communications with Congress.?'
Therefore, the ?ve of?cials subject to your letter may not attend any interview or deposition
without counsel from the Executive Branch present to ensure that the Executive Branch?s
constitutional authority to control the disclosure of con?dential information, including
deliberative matters and diplomatic communications, is not impaired.

Fourth, the invitations the Committee sent to the ?ve Department of?cials include requests that
each of them personally produce a vast amount of documents. These requests appear to
duplicate the subpoena that was previously served on the Secretary of State. The requested
records constitute the property of the Department of State and are subject to restrictions on the
unauthorized disclosure of classi?ed information and various Executive Branch privileges. By
purporting to induce individual Department professionals'and career Foreign Service Of?cers to
produce materials that are not theirs to produce which could potentially constitute a violation
of numerous civil and criminal statutes and regulations if proper procedures are not followed 
the Committee has engaged in an act of intimidation and an invitation to violate federal records
laws.

Finally, you have asserted that failure by Department of?cials to meet your demonstrably
inadequate timeline for voluntary appearances ?shall constitute evidence of obstruction.? There
is no legal basis for such a threat. Given the serious substantive and procedural de?ciencies in
the Committee?s requests, including the Committee?s apparent effort to circumvent Executive
Branch constitutional interests in having Department counsel present at any depositions, the
Committee?s assertion lacks any recognized legal basis. I urge you to exercise restraint in
making such unfounded statements in the future.

The Department also acknowledges receipt of the subpoena communicated by separate letter
dated September 27, 2019 and intends to respond to that subpoena by the noticed return date of
October 4, 2019.

 

1 Department of Justice, Of?ce of Legal Counsel, Slip Opinion (May 23, 2019) ("Congress may not constitutionally
prohibit agency counsel from accompanying agency employees called to testify about matters that potentially
involve information protected by executive privilege?)

 

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Based on the profound procedural and legal de?ciencies noted above, the Committee?s requested
dates for depositions are not feasible. The Department will be in further contact with the
Committee in the near future as we obtain further clarity on these matters.

'1
Sincerely yours,

x? I {f 
. 71:, "1 .1 ?(if .J
Michael R. ?Pompeo

Cc: The Honorable Michael T. McCaul, Ranking Member
House Committee on Foreign Affairs