News broke Wednesday that former White House Communications Director Hope Hicks would testify before the House Judiciary Committee. But there was an important caveat: Hicks’ “transcribed interview” will take place behind closed doors, reportedly with a White House lawyer present in addition to Hicks’ own.
The public will only be able to read the former Trump confidant and current Fox Corporation executive vice president’s testimony after a committee transcript is released — “promptly” after the interview, committee Chairman Jerry Nadler (D-NY) said in a press release Wednesday.
And, the Washington Post reported Wednesday, “a member of the White House Counsel’s Office will be present for the testimony as part of the deal between Hicks and the committee,” presumably to reserve the right to claim executive privilege.
Closed-door testimony may be standard fare for congressional intelligence committees, where spycraft and other state secrets are discussed, but for the House Judiciary Committee, especially with a Democrat as its chair, the logistics drew criticism.
“The American people, again, will not see for themselves how she testifies and her credibility,” former federal prosecutor Glenn Kirschner said in response to the news. “What they will get is perhaps hundreds of pages of transcripts of Hope Hicks’ testimony. What does that do? It adds to their reading assignment.”
“Behind closed doors?!?” legal scholar and Trump critic Laurence Tribe tweeted. “Hope that Hope Hicks will be forced to testify in public soon after!”
Neither the Judiciary Committee nor Hicks’ lawyer, Robert Trout, responded to TPM’s request for comment on the behind-the-scenes negotiations that led to the closed interview.
Anne Tindall, counsel for Protect Democracy and former counsel to the House Committee on Energy and Commerce under then-Chairman Henry Waxman (D-CA), told TPM that the Judiciary committee knows “they’re going to have to go to court to get a lot of this information.”
Given the administration’s stonewalling, she said, “the law, under those circumstances, is very much on Congress’ side, but you are supposed to negotiate in good faith, and it doesn’t much help to point out that the White House is stonewalling if the Congress isn’t making any concessions either.”
“So they may be trying to identify some places where concessions seem worth it.”
Michael Bopp, who chairs the congressional investigations subgroup at Gibson, Dunn & Crutcher, said he thought Nadler “is trying to figure out a way to get answers in the context of also having to accommodate legitimate claims of executive privilege, and that is a very difficult line to draw.”
Bopp served as staff director and chief counsel of the Senate Homeland Security and Governmental Affairs Committee when Sen. Susan Collins (R-ME) was its chair.
“I think that’s why, as an accommodation to the administration, he’s allowing a White House lawyer to sit in on the interview, and I also think that’s why it’s happening behind closed doors, in order to try to elicit useful information for the committee,” he added.
In the modern television era, there’s an expectation that hearings be public, Ray Smock, the former Historian of the House of Representatives, told TPM in a phone call.
“You see the people’s faces. You see their body language, and that is very educational, much more so than reading a transcript,” he said.
Still, Smock noted, closed hearings are often used strategically.
“Trey Gowdy, when he was investigating [Benghazi], they held some private hearings, and they would gather the information in the private hearings that would then make them look twice as smart when they were pointing to witnesses in public,” he said, “So they used the private hearings for educational purposes.”
“Some of that may be going on now,” Smock said. “Gathering information that will later be used in public hearings.”
The White House has instructed Hicks and Annie Donaldson, the former chief of staff to ex-White House counsel Don McGahn whose extensive notes featured prominently in the Mueller report, not to turn over documents to the committee. When Hicks handed over campaign-era notes, not covered by the White House’s order, Nadler called it a show of “good faith.”
Tindall said Donaldson and McGahn will be especially “under the gun” if they ultimately testify, especially if their testimony is public. McGahn defied a subpoena for his public testimony last month. The committee has also subpoenaed Donaldson to appear for a deposition later this month.
“They are lawyers with bar licenses,” Tindall said. “And ‘the President told me I can’t say it’ — they know when that is bullshit and it violates their professional responsibility obligations to say otherwise.”
As always, a television-conscious President looms large over any public testimony. He, and Democrats, know the importance of a visual education.
“The public,” Smock said, “is not educated yet.”
“I have a lot of sympathy for the lawyers on Nadlers’ staff trying to figure this out, and so maybe everything they’re doing here is the right move strategically as part of the long game,” Tindall said. “But I do think it is just a damn shame that any of this happens behind closed doors. Because the only way the American people are ever going to really understand what happened is if these witnesses get on live TV and it is on the networks and they’re telling their stories and answering questions.”
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