House General Counsel 08 Approps Testimony

1Statement of Irvin B. Nathan, General Counsel Office of the General Counsel U.S. House of Representatives Before the Legislative Branch Subcommittee Of The Committee on Appropriations Regarding Fiscal Year 2009 Budget Request for OGC Madam Chair and Members of the Subcommittee: Thank you for the opportunity to present and explain the fiscal year 2009 (“FY’09") budget request of the House’s Office of General Counsel (“OGC”). For FY’09, the OGC requests $1,357,000, which represents an increase of $182,000 over the fiscal year 2008 appropriation of $1,175,000, or an increase of 15.5 %. The proposed increase consists of a $138,000 increase in personnel costs, and $44,000 in non-personnel costs.

The justification for the requested increase, as set forth below, is greater work demands on the office and a need to recruit and retain highly qualified lawyers for the office.

Functions of the Office Pursuant to Rule II(8) of the Rules of the House (110th Cong.) and 2 U.S.C. § 130(f), the OGC provides legal advice and assistance to Members, Committees, officers and employees of the House, without regard to political affiliation, on matters related to their official duties. The office is an independent entity in the House which reports, on policy matters and matters of institutional interest to the House, to the Speaker and the Bipartisan Legal Advisory Group (consisting of the Majority and Minority leaders, and the Majority and Minority whips). While it is difficult to provide an exhaustive list of the types of advice and representation the OGC provides, the office addresses at least the following areas with some frequency: ● Judicial Proceedings: The OGC represents Members, Committees, officers and employees, both as parties and witnesses, in litigation arising from or relating to the performance of their official duties and responsibilities, both at the trial and appellate levels. Among other things, the office defends civil suits; moves to quash or limit subpoenas; applies to the District Court for immunity orders for witnesses before Committees and Subcommittees; and files amicus curiae briefs on behalf of the House and/or one or more of its constituent entities in litigation with potentially significant consequences for the House and its Members. ● Committee Subpoenas: The OGC provides advice and assistance to House Committees and Subcommittees in connection with the preparation, service and validity of Committee and Subcommittee subpoenas, including advice and assistance in dealing with recalcitrant witnesses. ● Requests for Information: The OGC provides advice and representation in connection with responses to informal and formal requests for information (grand jury, trial and deposition subpoenas) from governmental agencies (including the Department of Justice, the FBI and other executive branch and independent agencies, as well as private parties.

● Privileges: The OGC reviews, evaluates and provides advice regarding the applicability and waiver of various privileges, such as executive, Fifth Amendment, attorney-client, attorney work product, and, most particularly, the Speech or Debate Clause privilege (U.S. Const. art. I, § 6, cl. 1). ● Tort Claims: The OGC reviews and evaluates tort claims for administrative resolution and, where appropriate, refers such claims to the Department of Justice for defense under the Federal Tort Claims Act. ● Tax Exemption Matters: The OGC advises House offices and vendors of applicable tax exemptions for official purchases. ● Constituent Information: The OGC provides advice and assistance to Members and their staffs regarding the maintenance of the confidentiality of constituent communications and information. ● Contract Disputes: The OGC assists in resolving major contract disputes involving House entities and outside vendors.

• Internal Policy Development: In consultation with the Speaker’s office and other leadership offices, the OGC assists in creating and amending internal House policies, Rules and regulations.

• Formal Legal Opinions: From time to time, the OGC issues formal legal opinions on matters of interest to Members, Committees and/or officers.

• Parliamentary Matters: Normally in consultation with the Parliamentarian of the House, the OGC provides advice to Committees and Subcommittees on parliamentary issues and other issues involving the interpretation of the Rules of the House.

• Freedom of Information and Privacy Acts: the OGC provides advice on the applicability of FOIA and the Privacy Act to Congress.

Justification for Requested Increase At present, the OGC staff includes six attorneys, an Office Administrator and three law clerks. In order for the Office to continue to carry out its responsibilities effectively, I am requesting a projected increase of $138,000 in the personnel component of the budget. The requested budget increase will fund hiring of a highly qualified attorney, which is necessary due to increase in the office workload over the past couple of years. In addition, the proposed increase will be applied toward the retention of the current staff, which is a repository of considerable expertise and institutional memory and which has demonstrated a commitment to the House over many years. The remaining amount requested for personnel is for cost-of-living adjustments and meritorious pay increases.

This proposed increase is due in part to the escalating demands imposed by the Department of Justice investigations, including witness interviews, electronic discovery, and court filings and a

more aggressive approach to seeking information long considered privileged under the Speech or Debate Clause of the U.S. Constitution. As we anticipate the departure of at least one staff attorney with significant institutional knowledge, we will need to be in a position to ensure that the Office continues to provide the high quality of service our clients deserve.

The projected increase in travel, supplies and material includes a 2.2% inflation factor. The proposed $15,000 increase in the travel component of the budget is needed due to increase in legal representation which requires travel to distant courts by the attorneys. The proposed $5,000 increase in supplies and materials component of the budget will provide funding for the purchase of more current software needed by the office and will cover the increasing cost of legal publications, including online publications and support. The proposed $24,000 increase in the equipment component of the budget is attributed to the life cycle replacement of the major office equipment, including a copier and printers.

I am pleased to respond to any questions the Subcommittee might have. Thank you for your consideration.