April

5, 2019

VIA EMAIL AND U.S. MAIL

The Hon. Adam B. Schiff
The Hon. Devin Nunes
c/o Nicholas A. Mitchell
c/o Daniel Goldman
House Permanent Select Committee on Intelligence
HVC-304, The Capitol
Washington, D.C. 20515

Re: Congressional Request for Documents and Interview Dated March 14, 2019

Dear Representatives Schiff and Nunes:

We write in response to the Committee’s requests for documents and interviews sent
on March 14, 2019 to our respective clients the lawyers who represent President Donald J.
Trump, Ivanka Trump, Donald J. Trump Jr., Jared Kushner, and The Trump Organization.
Although the Committee has important responsibilities over this country’s intelligence
agencies, we are at a loss to see how that charge justifies your sweeping and unprecedented
requests to our clients. As we explain below, the information sought by the Committee
appears to be far afield from the any proper legislative purpose or the Committee’s limited
jurisdiction. Longstanding Supreme Court and congressional precedents also confirm that
this Committee is not empowered to usurp investigatory powers reserved to the executive
branch. Absent a sufficient justification for these requests, our clients cannot agree to
provide the requested documents or submit to an interview. That is particularly true since
your requests plainly target information that would fall within the attorney-client and work-
product privileges. Our clients are longstanding and reputable members of the bar subject
to rules of professional conduct, and they have obligations to comply with the duties they
owe their respective clients.

I. The Supreme Court has long recognized that Congress’s power to
investigate is subject to important limits.

For more than a century, the Supreme Court has recognized that Congress does not
have a general, free-floating power to conduct investigations. Watkins v. United States, 354
U.S. 178, 187 (1957); Kilbourn v. Thompson, 103 U.S. 168, 190 (1880). The Constitution does
not contain an “Investigations Clause”; it instead grants Congress limited legislative powers
and authorizes congressional investigations only as “an adjunct” to those powers. Watkins,
354 U.S. at 197. A congressional inquiry is thus unconstitutional unless it has a “valid
legislative purpose.” Quinn v. United States, 349 U.S. 155, 161 (1955).

Congress lacks a legitimate legislative purpose if it uses investigations “to expose for
the sake of exposure.” Watkins, 354 U.S. at 200. The Constitution does not tolerate the
“ruthless exposure of private lives” by Congress without a “clear determination … that a
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particular inquiry is justified by a specific legislative need.” Id. at 205. The Framers were
particularly worried about abuses by the House of Representatives. Because its members
hold such “short term of office,” the House is more likely to use investigations as a bludgeon
to appease angry factions. Kilbourn, 103 U.S. at 192. That is why House investigations, the
Supreme Court has warned, must be “watched with vigilance” and given “the most careful
scrutiny.” Id.

Congress also lacks a legitimate legislative purpose if it uses investigations to
effectively exercise “any of the powers of law enforcement.” Quinn, 349 U.S. at 161. “Congress
is not a law enforcement or trial agency,” and it oversteps the separation of powers when it
tries to act like one. Watkins, 354 U.S. at 187. “Investigations conducted solely for the
personal aggrandizement of the investigators,” the Supreme Court has held, “are indefen-
sible.” Id.

Even armed with a legitimate legislative purpose, congressional inquiries are invalid
if they exceed the requesting committee’s jurisdiction. United States v. Rumely, 345 U.S. 41,
44 (1953); United States v. Patterson, 206 F.2d 433, 434 (D.C. Cir. 1953). Congress must “spell
out” the committee’s jurisdiction ahead of time in the “authorizing resolution.” Watkins, 354
U.S. at 201. And the committee “must conform strictly to the resolution.” Exxon Corp. v. FTC,
589 F.2d 582, 592 (D.C. Cir. 1978). When an investigation is “novel” or “expansive,” courts
will construe the committee’s jurisdiction “narrowly.” Tobin v. United States, 306 F.2d 270,
275 (D.C. Cir. 1962).

At all times, individual requests must be “pertinent” to the committee’s jurisdiction
and the particular investigation at issue. Bergman v. Senate Special Comm. on Aging, 389 F.
Supp. 1127, 1130 (S.D.N.Y. 1975); e.g., DeGregory v. Att’y Gen. of N.H., 383 U.S. 825, 828-29
(1966) (holding that a legislative investigation was invalid given “the staleness of both the
basis for the investigation and its subject matter”). As the Supreme Court has explained, a
witness appearing before Congress “is entitled to have knowledge of the subject to which the
interrogation is deemed pertinent” with “the same degree of explicitness and clarity that the
Due Process Clause requires in the expression of any element of a criminal offense.” Watkins,
354 U.S. at 206. This pertinency requirement is “jurisdictional.” Id.

II. This Committee appears to lack jurisdiction to propound these requests.

The requests that this Committee made on March 14 far exceed its jurisdiction and
authority. The Committee was established on July 14, 1977 by House Resolution 658.1 Its
mandate is “to oversee and make continuing studies of the intelligence and intelligence-
related activities and programs of the United States Government, and to submit to the House
appropriate proposals for legislation and report to the House concerning such intelligence
and intelligence-related activities and programs.” To carry out this purpose, the Committee’s

Notably, House Resolution 658 has been removed from the Committee’s website. The only
reference to the Resolution or to the Committee’s history and jurisdiction are on the Minority page.
See bit.ly/2FLpGLJ.
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jurisdiction is limited to “proposed legislation, messages, petitions, memorials, and other

matters” relating to the Central Intelligence Agency, the Director of National Intelligence, the
National Intelligence Program, and the federal government’s other “intelligence and
intelligence-related activities.” House Rule X, cl. 11(b)(1)(A)-(D).

The Committee’s requests do not stay within these bounds. Open-ended inquiries into
the process by which witnesses came to testify before the Committee, source documentation
concerning Justice Department inquiries, and “pardon-related” conversations do not fall
within the Committee’s jurisdiction over intelligence agencies. See House Rule X, cl. 11(j)(1)
(definition of “intelligence and intelligence-related activities”). Nor has the Committee
attempted to explain how the requests are pertinent to this jurisdiction or any live
investigation. The Committee’s requests also infringe on the government’s law-enforcement
functions, which are reserved for the executive and judicial branches. See Icardi v. United
States, 140 F. Supp. 383, 388 (D.D.C. 1956) (restricting prosecution of a witness who was
called before Congress merely to provide the predicate for a law-enforcement action because
“if the committee is not pursuing a bona fide legislative purpose when it secures the
testimony of any witness, it is not acting as a ‘competent tribunal’, even though that very
testimony be relevant to a matter which could be the subject of a valid legislative
investigation”). To the extent the Committee believes there was an effort to interfere with its
inquiry into various Russia-related matters, the proper course is to refer that matter to the
appropriate law-enforcement agency.

In sum, the March 14 requests appear to exceed this Committee’s limited jurisdiction.
They do not appear calculated to advance any proper legislative purpose beyond a law-
enforcement investigation. We thus ask the Committee to explain how the enumerated
matters of inquiry fall within its legislative sphere in light of House Resolution 658 and the
legal principles set forth above.

III. The requests raise additional concerns—including the attorney-client and
work-product privileges—that cast further doubt on their propriety.

Our concerns about the purpose and jurisdiction of the Committee’s requests are
underscored by the fact that the requests, on their face, specifically target documents and
information that (to the extent they exist) are plainly protected by attorney-client and work-
product privilege. “The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389
(1981) (citing 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961)). It predates the
creation of our Republic by 200 years, Berd v. Lovelace, 21 Eng. Rep. 33 (Ch. 1577); was
considered by Justice Joseph Story to be “indispensable,” Chirac v. Reinicker, 24 U.S. 280, 294,
6 L. Ed. 474 (1826); and has long been recognized by the Supreme Court, e.g., Hunt v.
Blackburn, 128 U.S. 464, 470 (1888). The attorney-client privilege “encourage[s] full and
frank communication between attorneys and their clients” and “recognizes that sound legal
advice or advocacy serves public ends and that such advice or advocacy depends upon the
lawyer’s being fully informed by the client.” Upjohn, 449 U.S. at 389. The privilege applies
here because our clients engaged in confidential communications with their clients in
rendering legal advice and none of their clients have waived the privilege.
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The work-product doctrine expands on the attorney-client privilege and protects

attorney work product prepared in anticipation of litigation.2 Hickman v. Taylor, 329 U.S.
495, 510-11 (1947); see also Fed. R. Civ. P. 26(b)(3)(A) (generally prohibiting discovery of
“documents and tangible things that are prepared in anticipation of litigation or for trial by
or for another party or its representative”). It is “essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion,” according to the Supreme Court, and
discovery into those areas would poorly serve “the interests of the clients and the cause of
justice.” Hickman, 329 U.S. at 510-11. The work-product privilege, like the attorney-client
privilege, has thus long been recognized and protected by the federal courts.3 And it is
professional misconduct for lawyers to violate these duties of confidentiality to their clients.
ABA Model Rules of Professional Conduct §§ 1.6, 8.4. As attorneys, our clients owe ongoing
ethical duties to preserve their client’s confidences.

Finally, we note that, even if the Committee were inclined to ignore the constraints
on its jurisdiction and seek plainly privileged information, this is a particularly weak case to
take those unprecedented steps. The Committee’s requests appear to stem from recent
testimony before the Committee from a source of questionable reliability.4 Moreover, to the
extent your requests can be read to request information that is in the hands of other offices
and agencies that, unlike this Committee, are responsible for investigating potential criminal
matters, that information should be sought from those entities. Those entities are best
positioned to determine whether or how the requested material should be shared with
Congress.5

In light of these serious concerns, we ask the Committee to provide a jurisdictional
basis for its requests and to reconsider any attempt to seek documents or information that
were obtained or created by attorneys in the course of representing their clients or that can
be obtained elsewhere.

2 An investigative legislative hearing is included within the definition of “in anticipation of

litigation.” Restatement (Third) of the Law Governing Lawyers § 87 cmt. h (2000).

3 These privileges are not waived when parties to litigation, including those who are under

investigation, have their retained separate counsel agree to work together, strategize, and share
resources. See, e.g., C.B. Mueller & L.C. Kirkpatrick, Evidence § 5.15, at 388 (1995); K.P. Seymour &
A. Caffarone, Defending Corp. & Indiv. in Gov. Invest. § 5:5 (Dec. 2017). Parties do not need to
demonstrate identical interests in order to invoke the joint defense privilege, e.g., Haines v. Liggett
Group, Inc., 975 F.2d 81 (3d Cir. 1992), and once a joint defense arrangement is in place, any waiver
of privilege requires the consent of all co-parties, e.g., John Morrell & Co. v. Local Union 304A, 913 F.2d
544, 556 (8th Cir. 1990).
4 To the extent the Committee’s requests are premised on statements Mr. Cohen recently

made to Congress, it should be noted that Mr. Cohen’s attorney almost immediately was compelled
to tell the press that it was his client who drafted the portion of his written statement that formed
the basis of his guilty plea for lying to Congress, and not anyone else.
5 Some of your requests also appear to call for documents that may reflect the

communications or deliberative process of clients within the executive branch, and thus raise
additional concerns.
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Sincerely,

Carol Elder Bruce Stefan Passantino Patrick Strawbridge

Counsel for Abbe Lowell Counsel for Alan Futerfas
and Alan Garten


Jane Serene Raskin

Counsel for Jay Sekulow