THE WHITE HOUSE

WASHINGTON

October 14, 2019
BY EMAIL

Lee S. Wolosky, Esq.

Boies Schiller Flexner LLP
55 Hudson Yards, 20th Floor
New York, New York 10001

Dear Mr. Wolosky:

Thank you for speaking with us this past Friday and for your follow?up letter this
afternoon. We understand that your client, Dr. Fiona Hill, former Senior Director for European
and Russian Affairs for the National Security Council plans to appear on Monday,
October 14, 2019, for a non?public deposition conducted by the US. House of Representatives
Permanent Select Committee on Intelligence, Committee on Oversight and Reform, and
Committee on Foreign Affairs (the ?House Committees?).

We appreciate that Dr. Hill is aware of her continuing obligation not to reveal classi?ed
information or information subject to executive privilege. As we discussed, that information
includes but is not limited to the content of communications between the President and foreign
heads of state and other diplomatic communications.

It has been the longstanding position of Administrations of both political parties?indeed,
dating back to the very first presidential administrationl?that such diplomatic communications
are protected by executive privilege. As Attorney General Reno explained during the Clinton
Administration:

History is replete with examples of the Executive?s refusal to produce to Congress
diplomatic communications and related documents because of the prejudicial
impact such disclosure could have on the President?s ability to conduct foreign
relations. It is equally well established that executive privilege applies to
communications to and from the President and Vice President and to White House
and NSC deliberative communications.2

 

I See History ofRe?tsals by Executive Branch O?icials to Provide Information Demanded by Congress, 6 Op.
O.L.C. 751, 753 (1982) (noting that in response to a request for documents relating to negotiation of the Jay
Treaty with Great Britain, President Washington sent a letter to Congress stating, admit, then, a right in the
House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation
with a foreign Power, would be to establish a dangerous precedent?) (citation omitted).

Assertion of Executive Privifege for Documents Concerning Conduct of Foreign A fairs with Respect to Haiti,
20 Op. O.L.C. 5, 6 (1996) (citation and paragraph break omitted).

Lee S. Wolosky, Esq.
Page 2

Two points in your letter suggesting that there may be exceptions to executive privilege
with respect to Dr. Hill?s testimony merit some response.

First, you note that executive privilege does not apply to otherwise privileged matters
that the White House itself has made public, thereby waiving the privilege. It is true that the
President has authorized the public disclosure of the contents of the July 25, 2019 telephone call
with President and thus that call is not privileged. The privilege has not been waived,
however, with respect to any other diplomatic communications or to deliberative processes
related to the call. The subj cot-matter waiver doctrine does not apply to executive privilege;
thus, matters not expressly disclosed remain privileged.3 Moreover, other than the July 25 call,
the President has not authorized the public disclosure of any other of his conversations with
foreign leaders, and therefore executive privilege continues to apply to all of those
communications. in addition to the protection of executive privilege, calls and discussions with
foreign heads of states are almost always classified, as Dr. Hill is aware, and she should treat
them as such.

Second, with respect to the component of executive privilege protecting deliberative
processes, Dr. Hill may not discuss privileged communications based on the assertions of certain
members of the House of Representatives that her deposition will occur as part of an
?impeachment inquiry.? As the White House Counsel has explained, there is no valid
impeachment inquiry underway.4 The House of Representatives as a whole delegates authority
to each standing committee in the House.5 Yet the House has not authorized any committee to
conduct an impeachment inquiry. The three committees that seek Dr. Hill?s testimony have
jurisdiction solely under House Rule X, which does not provide the power to initiate or
investigate impeachment to any of them.6 Absent a delegation by House Rule or a resolution of
the House, none of these committees has been delegated jurisdiction to conduct an investigation
pursuant to the impeachment power under Article 1, Section 2 of the Constitution. Thus, even if
it were the case that executive privilege operates differently in connection with an impeachment
inquiry, there is no ground for Dr. Hill to believe that she may disclose privileged information on

 

3 As the DC. Circuit expiained in In re Sealed Case:

it is true that voluntary disclosure of privileged material subject to the attorney-client privilege to
unnecessary third parties in the attorney-client privilege context waives the privilege, not only as to the
speci?c communication disclosed but often as to all other communications relating to the same subject
matter. But this all?or?nothing approach has not been adopted with regard to executive
privileges generally, or to the deliberative process privilege in particular. Instead, courts have said that
release of a document only waives these privileges for the document or information speci?cally released,
and not for related materials. This limited approach to waiver in the executive privilege context is
designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the
fear that by doing so they are exposing other, more sensitive documents.

121 F.3d 729, 741 (DC. Cir. 1997) (internal citations and quotations omitted).

4 See Letter from Pat A. Cipolione, Counsel to the President, to Nancy Pelosi, Speaker, House of Representatives,
at at. (Oct. 8, 2019).

5 See H. Res. 6, 116th Cong. (2019).
6 See H. Rule X, cl. 10), Cl. ll.

Lee S. Wolosky, Esq.
Page 3

that basis to the House Committees.

It is likewise incorrect to suggest that the deliberative process prong of executive
privilege may ?disappear[] altogether? based on a belief that government misconduct has
occurred. As the DC. Circuit noted in In re Sealed Case: ?In regard to both [the deliberative
process and presidential communications privileges], courts must balance the public interests at
stake in determining whether the privilege should yield in a particular case, and must speci?cally
consider the need of the party seeking privileged evidence.?7 Any showing of the House?s need
for access to privileged information must be addressed through the constitutionally required
accommodations process between authorized representatives of the Executive Branch (the holder
of the privilege) and the House Committeesindividual employee or former
employee to undertake that analysis herself and to disclose privileged information based on her
own individual assessments. Indeed, that is what makes it especially unfortunate that Chairman
Schiff has demanded that Dr. Hill appear and testify on matters that will undoubtedly touch on
privileged information without allowing her the bene?t of having Administration counsel
present, who may raise objections to ensure that she does not breach her obligations with respect
to privileged and classi?ed material.3

Because the House Committees are refusing to allow counsel from the Executive Of?ce
of the President to attend Dr. Hill?s deposition to protect core Executive Branch confidentiality
interests, it is incumbent on Dr. Hill and you, as her counsel, to guard against unauthorized
disclosure. To be clear, Dr. Hill is not authorized to reveal or release any classi?ed information
or any information subject to executive privilege.

 

7 121 F.3d at 746. The Obama Administration has similarly explained that ?the DC. Circuit already has decided
that a claim of ?misconduct? does not invalidate an assertion of Executive Privilege.? Mem. in Supp. of
Def.?s Mot. for Summ. J. at 36 (Jan. 21, 2014), Comm. on Oversight Gov?i? Reform v. Hoider, No. 12?1332,
2014 WL 298660 (quoting Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725,
731 (DC. Cir. 1974) (en banc)). The privilege asserted by the Obama Administration, despite a claim of
misconduct, was one of deliberative process.

8 The House Committees have made clear, in writings and in meetings and discussions with Administration
counsel, that they will not permit counsel from the agencies or of?ces at which witnesses were employed to be
present during their depositions, despite the determination by the Department of Justice that it is
unconstitutional to exclude them. See, e. g, 116th Congress Regulations for Use of Deposition Authority,
Congressional Record, H1216 (J an. 25, 2019); Letter from Eliot L. Engel, Chairman, House Committee on
Foreign Affairs, et at, to John J. Sullivan, Deputy Secretary of State at 2 (Oct. 1, 2019) (citing 116th Congress
Regulations for Use of Deposition Authority); Attempted Exclusion ongemy Cozmselfi'om Congressional
Depositions of A gency Employees, 43 Op. O.L.C. 1?2 (May 23, 2019).

Lee S. Wolosky, Esq.
Page 4

Please do not hesitate to contact me if you have any further questions or would like to
discuss this matter further. We would be happy to speak with you at your convenience.

Sincerely,

@eml 

Michael M. Purpura
Deputy Counsel to the President