Authority of Senate Committee Staff to Depose

Executive Branch Officers

There is no authority in the rules o f the Senate, or in relevant statutes, for the Senate Committee on 

Labor and Human Resources to direct its staff to depose certain Executive Branch officials. Recent 

practice establishes that such depositions may be taken by Senate committee staff only w hen 

specifically authorized by a resolution of the full Senate in connection with a particular 

investigation.

August 4, 1982

MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL

This responds to your request for our opinion whether the Senate Committee 

on Labor and Human Resources may, without specific authority conferred by a 

resolution adopted by the Senate, authorize its staff to take depositions of 

Executive Branch officials in the course of that Committee’s inquiry into the 

confirmation of Secretary [of Labor Raymond J.] Donovan.

On July 22, 1982, the Senate Committee on Labor and Human Resources 

adopted a resolution authorizing an investigation into whether “ the Committee 

received full, complete and timely disclosure of all information in the [Donovan] 

confirmation [proceedings].” On the afternoon of July 29,1982, Messrs. Francis 

M. Mullen, formerly Executive Assistant Director of the FBI, FBI Special Agent 

Anthony Adamski, Jr., and Fred F. Fielding, Counsel to the President, received 

Notices of Deposition purporting to require them to appear for depositions at 7:30 

a.m. on August 3, 6, and 9, 1982, respectively. Each Notice of Deposition states 

that it is authorized “ pursuant to Committee resolution and the Committee 

rules. . . .” We have examined the Committee resolution and rules, and, in 

addition, the Standing Rules of the Senate, the Standing Orders and Resolutions 

Affecting the Business of the Senate, and relevant statutes and have found no 

authority, express or implied, for the depositions which are demanded of Messrs. 

Mullen, Adamski, and Fielding.

I. The Committee’s Rules of Procedure

The Rules of Procedure of the Committee, which are attached to each of the 

Notices of Deposition, do not authorize the taking of depositions. In fact, the 

word “ deposition” nowhere appears in the rules of the Committee, and no

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language appears in the rules from which power in the staff to take depositions 

could reasonably be inferred.1

II. The Committee’s Resolution

The Committee’s resolution o f July 22, 1982, purports to authorize swom 

depositions “ anywhere in the continental United States” to be taken by Committee staff members, provided only that a Senator be present when the deposition 

commences. The resolution states that “ under Senate rule XXVI and section 

1364(a) of title 28, United States Code, a committee may authorize the issuance 

of subpoenas and the taking of depositions. . . .” No other authority for taking 

depositions is cited in the resolution.

Rule XXVI governs Senate committee and subcommittee procedure. It 

provides broad authority to conduct hearings, to take testimony, to require “ by 

subpena or otherwise” the attendance of witnesses, and to conduct investigations. Yet nowhere in the rule is there language expressly or implicitly authorizing the taking of depositions by committee staff. As with the rules of the 

Committee itself, the word “deposition” nowhere appears in Senate Rule XXVI. 

Indeed, none of the Standing Rules of the Senate contain so much as a single 

reference to depositions.

The statutory provision cited by the resolution, 28 U.S.C. § 1364(a) (Supp. V

1981) added by Pub. L. No. 95-521,92 Stat. 1879, establishes jurisdiction in the 

United States District Court for the District of Columbia to hear certain civil 

actions brought by the Senate Legal Counsel, including actions to require 

compliance with an order of a committee seeking answers to “ any deposition or 

interrogatory.” This provision, however, is by its express language inapplicable 

to the taking of depositions of Executive Branch officials:

This section shall not apply to an action to enforce, to secure a 

declaratory judgment concerning the validity of, or to prevent a 

threatened refusal to comply with, any subpena or order issued to 

an officer or employee of the Federal Government acting within 

his official capacity.

28 U.S.C. § 1364(a); see S. Rep. No. 170, 95th Cong., 2d Sess. 89 (1977) (this 

section does not apply to Executive Branch officers). We are unaware of any other 

statutory provision authorizing the taking of depositions by Senate committee 

staff.

We have examined the Standing Orders and Resolutions of the Senate set out in 

the Senate Manual, S. Doc. No. 1, 96th Cong., IstSess., and have discovered no 

general standing authority for the taking of depositions by the staff of a Senate 

committee. It thus appears that the Committee’s resolution purporting to authorize the taking of depositions by its staff was entirely without legal basis in statute 

or Senate rule.

1 We note that if the Committee’s rules provided for the taking of depositions of Executive Branch officials by 

Committee staff, such a provision might well establish customary practice of the Committee, it would not, however, 

establish a source of power for the adoption of the provision itself.

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On July 12, 1982, John P. Flannery II, Special Counsel to the Labor Committee, and George Pritts, the Committee’s Chief Counsel, addressed to the members of the Committee a memorandum concerning the resolution which was 

eventually adopted on July 22. The bulk of that memorandum discusses the 

nature and advantages of deposing witnesses prior to holding any public hearings. The memorandum informed the members as follows regarding the authority for the staff’s taking depositions:

As you may not be familiar with Senate staff depositions, a few 

explanatory remarks about their history and use follow. Senate 

staff depositions, first authorized in 1928,* and expressly 

provided for by statute,* * have been used in recent Congressional 

investigations.*** They are similar to the depositions of a nonparty witness in a civil case.****

III. The Flannery Memorandum

* S. Res. 118, 70th Congress, 1st Session.

** Title 28, United States Code, Section 1364(a).

*** See H. Res. 803, 93rd Congress (House Judiciary Committee, during impeachment investigation for Richard Nixon); H.

Res. 222, 95th Congress (House Select Committee on Assassinations); S. Res. 495, 96th Congress, 2nd Session (Senate Billy 

Carter inquiry); S. Res. 4, 95th Congress, 1st Session 

§§ 104(c)(1)(G) (Aging Committee), 105(c)(1)(G) (Indian Affairs), 106(b)(7) (Nutrition); S. Res. 400, 94th Congress, 2nd 

Session, § 5(a)(7) (Intelligence).

**** See Rule 30 of the Federal Rules of Civil Procedure.

This statement of authority is without any foundation in the law for the 

following reasons:

(A) S. Res. 118 was passed in 1928 and provides:

Resolved, That the President of the Senate be, and he hereby is, 

authorized, on the request of the chairman of any of the committees of the Senate, to issue commissions to take testimony within 

the United States or elsewhere.

69 Cong. Rec. 1926 (1928). This resolution provides authorization only for the 

President of the Senate (i.e., the Vice President of the United States) to commission the taking of testimony; it provides no authority for the staff of committees to 

take testimony simply on the strength of a committee resolution. Further, it 

provides no basis for committee staff to take depositions of Executive Branch 

officials.2

2 We note that S Res 118 may not represent a current source of authonty for committees of the Senate to take 

“ testimony” outside Washington The Resolution does not appear in the Senate Manual, and there is nothing in the 

Flannery memorandum suggesting that that Resolution is not in a state of desuetude. In addition, assuming 

arguendo that the Resolution could be read to authorize the taking of testimony from Executive Branch officials, it 

implicitly recognizes the sensitivity of Senate committee requests for testimony of Executive Branch officials by 

providing that the Vice President, a member of the Executive Branch, must authorize all such requests

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(B) Section 1364(a) of Title 28, U.S. Code, simply does not stand from the 

proposition cited. As stated above, § 1364 on its face does not apply to committee subpoenas or orders directed to Executive Branch officers.

(C) The five prior House and Senate resolutions authorizing the taking of 

depositions by the staff of various committees in no way provides authority for 

the taking of depositions by the staff of the Senate Committee on Labor and 

Human Resources because—among other reasons—none of the cited resolutions 

authorized action by this Committee or its staff, nor are they phrased in language 

that is even arguably applicable to Senate committees generally. On the contrary, 

the recent historical practice established by these five resolutions is that depositions may be taken by the staff of Senate committees only when expressly 

authorized by a resolution of the full Senate in connection with a particular 

investigation, not by a simple resolution adopted by a Senate committee sua

sponte.

(D ) Finally, Rule 30 of the Federal Rules of Civil Procedure lends no support to 

the committee resolution at issue here, since that rule applies only “ after 

commencement of [a civil] action” in the courts of the United States. Needless to 

say, it provides no authority, express or implied, for depositions to be taken by 

Senate committee staff.

IV. Conclusion

On the basis of the references relied upon in the Committee material available 

to us, we find no authority for the compelled deposition of Messrs. Mullen, 

Adamski, and Fielding. In addition, our research into the Standing Rules of the 

Senate has uncovered no authority that would support the deposition power 

asserted in the Committee Resolution. Finally, the more recent precedents relied 

upon in the Committee material suggest quite strongly that older precedents 

which may be supportive of such standing committee power, even if they exist, 

have been abandoned in favor of passage of Senate resolutions authorizing the 

taking of depositions by committee staff in specific circumstances. At least until 

some more persuasive precedents are proffered, however, we are firmly convinced that there is no support in law or Senate rules for the staff of the Senate 

Committee on Labor and Human Resources to take the depositions of Executive 

Branch officials.3

T h e o d o r e B . O l s o n

Assistant Attorney General

Office cf Legal Counsel

3 Although this opinion is confined to the facts presented, we would emphasize that we have found no plenary 

authority for the taking of depositions of even private persons by the staff of Senate committees absent a specific 

resolution passed by the Senate authonzing such action Whether an established practice as regards deposing of 

private persons would, without more, legitimate the deposing of Executive Branch officials is doubtful, given the 

co-equal status of the Legislative and Executive Branches under our Constitution.

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