U.S. Capitol building in Washington, D.C.
U.S. Capitol building in Washington, D.C. (Photo: Mike Scarcella/ALM)


Kerry Kircher, former general counsel to the U.S. House of Representatives.

In his two decades in the U.S. House of Representatives, former general counsel Kerry Kircher has seen congressional and independent counsel investigations come and go. His former deputy counsel, William Pittard of KaiserDillon, has experienced his fair share as well.

But both veteran Washington lawyers concede they have never seen anything quite like the Trump-Russia-Comey affair unfolding in the nation’s capital.

As House and U.S. Senate committees, and now special counsel Robert Mueller III, investigate any Russian involvement in the presidential election and any connection to the Trump presidential campaign itself, Kircher and Pittard predict the public will likely see a host of legal issues—including the Fifth Amendment right against self-incrimination, assertions of executive privilege and perhaps even immunized testimony.

We reached out to Kircher and Pittard this week to get their thoughts on possible legal fights that could unfold in a process that history shows will take months, if not years, to resolve. Excerpts from the separate conversation, edited for length and clarity, appear below.

Will the special counsel’s investigation have an impact on congressional investigations?

William Pittard: I think it probably complicates their investigation in the sense that witnesses are likely to be particularly reluctant to produce documents and testify. And, they’re particularly likely to make noises about invoking their Fifth Amendment right to stay silent.

That’s something each of these witnesses could have done anyway, despite a special prosecutor, but with knowledge that a special prosecutor is out there looking at this area, it makes it all the more likely lawyers will advise them to be cautious, to assert the Fifth Amendment rather than answer questions.

Kerry Kircher: It absolutely complicates things for Congress. The Fifth Amendment is going to pervade everything and it is where Mueller and Congress probably are going to collide most starkly. Congress has the ability to immunize people and haul them in to testify. Assuming they can get the vote (two-thirds of committee members), you can immunize and force them to testify.

We’ll have to see how people involved in the investigations, in terms of witnesses, lawyer up. There are going to be people out there for whom immunity and the Fifth Amendment will not be an issue—the James Comeys of the world—unless the lawyers advising Comey and others are concerned about inconsistent statements, which every criminal defense lawyer is concerned about. That whole Fifth Amendment-immunity thing is an area fraught with conflict.

Congress has been reluctant to use the immunity approach in recent times. Why?

Pittard: It has the potential to very much complicate and possibly torpedo a future prosecution of the person to whom they’re giving immunity. And even though you’re not immunizing the underlying conduct, just the particular testimony, the D.C. Circuit in a couple of cases made clear that any evidence the prosecution develops based on that immunized testimony is also off limits and it’s the prosecution['s] burden to show the other evidence they have did not come from immunized testimony.

Kircher: In my time—the last 25 years—Congress has been relatively reluctant to go down the immunity road if they thought they were going to give a bad guy a pass, and they were more inclined to let the prosecution route run its course. Prior to that, Congress was more willing to assert its oversight interest. We’ll see where it goes.

What else may complicate the investigations?

Pittard: Privileges will be an issue going forward. The Obama administration was reluctant to assert executive privilege. They wanted to be able to boast “We’re being transparent.” They would just refuse to produce the material without any excuse and only when push came to shove, then they asserted executive privilege, as in [Operation] Fast and Furious.


William Pittard.

One interesting issue to watch will be whether there is an assertion of executive privilege in connection with conversations between the president and Mr. Comey. A related but possibly separate question is whether there would be an assertion of privilege over any notes or memos Mr. Comey may have prepared regarding those conversations.

In general, the presidential communications privilege covers conversations in which the president is seeking information and advice to allow him to make his decision in his role as president. With respect to the alleged conversations reported in the press at least, if the president is seeking advice to make a decision, maybe the privilege applies. The press reports about conversations with Mr. Comey suggest they may not have focused as much on decisions the president was going to make but on decisions Mr. Comey was going to make.

If Mr. Comey was writing memos to give to the president to inform presidential decisions on something, that might be different than if he was writing memos to himself for very different reasons.

So it’s hard to know when it might happen. Politics drives a tremendous amount of this and how things will play in the press. It’s just part of the whole back and forth.

Kircher: There is the potential for the president to assert presidential communications privilege depending on how much Congress tries to probe what went on in the White House. Because of the politics, Congress might be reluctant to go there. That is an area of law with some parameters, but not wholly defined. I don’t know [if] that waiver has ever come up in a case but given the whole purpose is to protect the confidentiality of advice the president receives and the willingness of this president to put his thoughts in a tweet, waiver could come up. I can’t think of an instance where a normal president would not keep these things private.

It’s a qualified privilege, relatively limited in itself. At the end of the day, any of these privileges asserted by either the White House or the Justice Department on behalf of one or more agencies, those have to be litigated if Congress really wants the stuff and the executive branch insists. They have to go to court.

If I might be a potential witness, should I lawyer up and what should my lawyer be thinking about?

Kircher: If I were a witness knowing what I know, I would not go before a congressional committee without somebody with knowledge of congressional investigations, somebody like Bill. There are a lot of good criminal defense lawyers out there but not with congressional investigation experience. If you have the resources, you’d want to have somebody who understood how those investigations proceed. They’re just very different.

There are not the same protections as in court, but also politics is coursing through everything. You might be able to play one side off against the other. There will be fault lines a good lawyer will exploit.

Pittard: One thing I’d be concerned about is the fluidity of the situation. Things are changing quickly and in unexpected ways. I’d be concerned about the nebulous nature of the criminal investigations that are ongoing. A special counsel has now been appointed. What exactly will he be investigating?

Lawyers advising clients in this area are going to be concerned and nervous about having their clients talk very much. While they may think today’s investigation is confined to issue X and there’s relatively little danger in the client talking about issue Y, tomorrow the calculus may be very different.

One of your first obligations is to try to steer your client clear of any exposure on his or her part, particularly any criminal exposure. One of the things clients are often interested in is it not becoming a high-profile matter. Part of the lawyer’s job is to try to keep it on the down low or relatively quiet. In areas connected to the President Trump-Russia-Comey situation, it is where it is and that’s not going to change.

There may well be lawyering up and I would love to have a piece of it. Some clients will want to have their story told and others will hope no one ever knows they were contacted for information. For lawyers with clients intimately connected with this investigation, this is going to be an essential part of their practice for a good while.


Kerry Kircher, former general counsel to the U.S. House of Representatives.

In his two decades in the U.S. House of Representatives, former general counsel Kerry Kircher has seen congressional and independent counsel investigations come and go. His former deputy counsel, William Pittard of KaiserDillon , has experienced his fair share as well.

But both veteran Washington lawyers concede they have never seen anything quite like the Trump-Russia-Comey affair unfolding in the nation’s capital.

As House and U.S. Senate committees, and now special counsel Robert Mueller III, investigate any Russian involvement in the presidential election and any connection to the Trump presidential campaign itself, Kircher and Pittard predict the public will likely see a host of legal issues—including the Fifth Amendment right against self-incrimination, assertions of executive privilege and perhaps even immunized testimony.

We reached out to Kircher and Pittard this week to get their thoughts on possible legal fights that could unfold in a process that history shows will take months, if not years, to resolve. Excerpts from the separate conversation, edited for length and clarity, appear below.

Will the special counsel’s investigation have an impact on congressional investigations?

William Pittard: I think it probably complicates their investigation in the sense that witnesses are likely to be particularly reluctant to produce documents and testify. And, they’re particularly likely to make noises about invoking their Fifth Amendment right to stay silent.

That’s something each of these witnesses could have done anyway, despite a special prosecutor, but with knowledge that a special prosecutor is out there looking at this area, it makes it all the more likely lawyers will advise them to be cautious, to assert the Fifth Amendment rather than answer questions.

Kerry Kircher: It absolutely complicates things for Congress. The Fifth Amendment is going to pervade everything and it is where Mueller and Congress probably are going to collide most starkly. Congress has the ability to immunize people and haul them in to testify. Assuming they can get the vote (two-thirds of committee members), you can immunize and force them to testify.

We’ll have to see how people involved in the investigations, in terms of witnesses, lawyer up. There are going to be people out there for whom immunity and the Fifth Amendment will not be an issue—the James Comeys of the world—unless the lawyers advising Comey and others are concerned about inconsistent statements, which every criminal defense lawyer is concerned about. That whole Fifth Amendment-immunity thing is an area fraught with conflict.

Congress has been reluctant to use the immunity approach in recent times. Why?

Pittard: It has the potential to very much complicate and possibly torpedo a future prosecution of the person to whom they’re giving immunity. And even though you’re not immunizing the underlying conduct, just the particular testimony, the D.C. Circuit in a couple of cases made clear that any evidence the prosecution develops based on that immunized testimony is also off limits and it’s the prosecution['s] burden to show the other evidence they have did not come from immunized testimony.

Kircher: In my time—the last 25 years—Congress has been relatively reluctant to go down the immunity road if they thought they were going to give a bad guy a pass, and they were more inclined to let the prosecution route run its course. Prior to that, Congress was more willing to assert its oversight interest. We’ll see where it goes.

What else may complicate the investigations?

Pittard: Privileges will be an issue going forward. The Obama administration was reluctant to assert executive privilege. They wanted to be able to boast “We’re being transparent.” They would just refuse to produce the material without any excuse and only when push came to shove, then they asserted executive privilege, as in [Operation] Fast and Furious.


William Pittard.

One interesting issue to watch will be whether there is an assertion of executive privilege in connection with conversations between the president and Mr. Comey. A related but possibly separate question is whether there would be an assertion of privilege over any notes or memos Mr. Comey may have prepared regarding those conversations.

In general, the presidential communications privilege covers conversations in which the president is seeking information and advice to allow him to make his decision in his role as president. With respect to the alleged conversations reported in the press at least, if the president is seeking advice to make a decision, maybe the privilege applies. The press reports about conversations with Mr. Comey suggest they may not have focused as much on decisions the president was going to make but on decisions Mr. Comey was going to make.

If Mr. Comey was writing memos to give to the president to inform presidential decisions on something, that might be different than if he was writing memos to himself for very different reasons.

So it’s hard to know when it might happen. Politics drives a tremendous amount of this and how things will play in the press. It’s just part of the whole back and forth.

Kircher: There is the potential for the president to assert presidential communications privilege depending on how much Congress tries to probe what went on in the White House. Because of the politics, Congress might be reluctant to go there. That is an area of law with some parameters, but not wholly defined. I don’t know [if] that waiver has ever come up in a case but given the whole purpose is to protect the confidentiality of advice the president receives and the willingness of this president to put his thoughts in a tweet, waiver could come up. I can’t think of an instance where a normal president would not keep these things private.

It’s a qualified privilege, relatively limited in itself. At the end of the day, any of these privileges asserted by either the White House or the Justice Department on behalf of one or more agencies, those have to be litigated if Congress really wants the stuff and the executive branch insists. They have to go to court.

If I might be a potential witness, should I lawyer up and what should my lawyer be thinking about?

Kircher: If I were a witness knowing what I know, I would not go before a congressional committee without somebody with knowledge of congressional investigations, somebody like Bill. There are a lot of good criminal defense lawyers out there but not with congressional investigation experience. If you have the resources, you’d want to have somebody who understood how those investigations proceed. They’re just very different.

There are not the same protections as in court, but also politics is coursing through everything. You might be able to play one side off against the other. There will be fault lines a good lawyer will exploit.

Pittard: One thing I’d be concerned about is the fluidity of the situation. Things are changing quickly and in unexpected ways. I’d be concerned about the nebulous nature of the criminal investigations that are ongoing. A special counsel has now been appointed. What exactly will he be investigating?

Lawyers advising clients in this area are going to be concerned and nervous about having their clients talk very much. While they may think today’s investigation is confined to issue X and there’s relatively little danger in the client talking about issue Y, tomorrow the calculus may be very different.

One of your first obligations is to try to steer your client clear of any exposure on his or her part, particularly any criminal exposure. One of the things clients are often interested in is it not becoming a high-profile matter. Part of the lawyer’s job is to try to keep it on the down low or relatively quiet. In areas connected to the President Trump-Russia-Comey situation, it is where it is and that’s not going to change.

There may well be lawyering up and I would love to have a piece of it. Some clients will want to have their story told and others will hope no one ever knows they were contacted for information. For lawyers with clients intimately connected with this investigation, this is going to be an essential part of their practice for a good while.