Jurisprudence

Despite Barr’s Objections, It’s Totally Normal for Congressional Staff Members to Question Witnesses

William Barr.
William Barr speaks during a press conference on April 18 in D.C. Brendan Smialowski/AFP/Getty Images

As William Barr and the House Judiciary Committee have continued to spar over whether or not—and on what terms—the attorney general might appear in front of the committee later this week, I have been reminded of the congressional hearings that took place in the summer of 1987 regarding the Iran-Contra affair. At the time, I was deputy chief counsel of the House Select Committee to Investigate Covert Arms Transactions With Iran. Rep. Lee Hamilton, a Democrat, was the chairman of the House committee, and John Nields was chief counsel. Sen. Daniel Inouye was chairman of the parallel Senate committee, and Arthur Liman was chief counsel. The hearings performed both an oversight and a public education function as the country was struggling to understand what had happened within the administration regarding the secret sale of U.S. military missiles to Iran and the diversion of the proceeds to the Contra rebels in Nicaragua.

Although separate committees, the panels held the hearings jointly. Both senators and members of Congress attended the hearings and asked questions of the witnesses. It was essentially a joint investigation. In the summer of 1987, it was also riveting television.

In the current case, the House Judiciary Committee has reported that Barr is threatening not to show up to scheduled testimony about the Mueller report on Thursday because the committee proposes to allow staff attorneys to question the attorney general. This allowance is in line with historical precedent, as I know well from my time working on the Iran-Contra hearings as a staff member who questioned top administration officials on behalf of the committee.

Indeed, during the Iran-Contra hearings more than 30 years ago, I do not recall any administration witnesses refusing to testify at the hearing, except for Lt. Col. Oliver North and Adm. John Poindexter, who would not testify without immunity. The committees granted them immunity; they were later indicted and convicted at trial; and their convictions were overturned on appeal because of the immunity grant. I do not recall any limitations on the questions we were entitled to ask any witnesses, including administration witness, except that classified matters were addressed in closed testimony. Similarly, I do not recall the administration witnesses refusing to answer any questions.

Of particular relevance to the current dispute between the attorney general and the House Judiciary Committee, witnesses who testified at the hearings were first questioned on television and in open hearings not just by the members of Congress but by lawyers on the committees’ staff. As I recall, the House and Senate committees divided the witnesses over which committees’ staff would be the first questioner. If the Senate lawyer was the first questioner, the House lawyer would take a turn at the conclusion of the Senate lawyer’s questioning. Only then did the senators and members of the House begin their questioning. There was no serious outside challenge of whether committee lawyers would conduct the questioning or members of Congress would perform that role: Both did.

This practice applied to all witnesses, including the Cabinet secretaries and other senior administration officials who testified. Caspar Weinberger, who was secretary of defense, was later indicted for his testimony; he was pardoned by President George H.W. Bush. Attorney General Edwin Meese also testified at the hearings without limitation. The committees believed that the oversight and public education functions of the hearings would be better met by initial uninterrupted questioning by committee counsel. The committees also believed that it was entirely under its discretion to determine the best method of conducting the hearings.

Again, I do not recall any real or sustained objection to the decision to have committee lawyers conduct the questioning. The committee lawyers did not take the place of the members of the two committees, each of whom also had the opportunity to ask questions of the witnesses. Rather, the staff lawyer questioning permitted the foundation to be laid so that the member questions were more effective and more focused on the policy issues that the committee was exploring. The process the committees chose worked.

The role of a committee lawyer questioner at the Iran-Contra hearings was not my only exposure to the practice of having counsel conduct questioning in congressional hearings. In the 1990s, I was an associate counsel in President Bill Clinton’s White House counsel’s office. I was called to testify before the Senate Whitewater Committee, an examination that also took place in an open hearing and on television. The initial questioning was done by Michael Chertoff, who was lead counsel to the committee. At the time, Republicans controlled the Senate, and Sen. Al D’Amato was the chairman. A number of Clinton administration witness were called to testify before that committee and, to my memory, were all questioned first by committee counsel. I don’t remember any objection from the Clinton White House to that process. What I vividly remember is that it was significantly more fun being the questioner than the witness.