Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5306
Tel 202.955.8500
www.gibsondunn.com

Michael D. Bopp
Direct: +1 202.955.8256
CONFIDENTIAL Fax: +1 202.530.9648
MBopp@gibsondunn.com

January 31, 2024

VIA ELECTRONIC MAIL

The Honorable Jim Jordan

Chairman
Committee on the Judiciary
United States House of Representatives
2138 Rayburn House Office Building
Washington, D.C. 20515-6906

Re: Subpoena of Andrew Slavitt

Dear Chairman Jordan:

I write on behalf of Andrew Slavitt in response to the House Judiciary Committee’s

subpoena of November 29, 2023, which seeks Mr. Slavitt’s deposition testimony as
part of the investigation by the House Committee on the Judiciary and its Select
Subcommittee on the Weaponization of the Federal Government into the Executive
Branch’s interactions with social media companies.
I write to emphasize again that Mr. Slavitt is ready and willing to meet with the
Committee provided it can reach an agreement with the White House over the
presence of counsel, which I understand still is in dispute. More than a month has
passed since Mr. Slavitt agreed to a meeting and yet the Committee and the White
House have failed to come to an agreement on this matter. As a former official in the
White House, Mr. Slavitt has flown at his own expense to Washington, D.C. in
anticipation of meeting with the Committee. Indeed, up until late yesterday, we were
working with your staff and the Office of White House Counsel to facilitate a way
Mr. Slavitt could meet with the Committee and provide information in a manner that
met your needs.
My client has no interest in turning around and heading back to California without
speaking to the Committee. However, given that Mr. Slavitt now has received a letter
from the White House instructing him not to appear, he unfortunately cannot do so.
See Attachment A.
The White House letter explains why the Committee subpoena is invalid and
unenforceable. For those same reasons, we object to the subpoena.

Abu Dhabi  Beijing  Brussels  Century City  Dallas  Denver  Dubai  Frankfurt  Hong Kong  Houston  London  Los Angeles
Munich  New York  Orange County  Palo Alto  Paris  Riyadh  San Francisco  Singapore  Washington, D.C.
 The Honorable Jim Jordan CONFIDENTIAL
January 31, 2024
Page 2

We would be pleased to reschedule for a later date once the Committee and White
House are able to reach an agreement. Please feel free to have your staff reach out to
me with any questions.

Sincerely,

Michael D. Bopp

cc: The Honorable Jerrold Nadler

Ranking Member
Committee on the Judiciary

Enclosures:

Attachment A: January 30, 2023 Letter from Richard Sauber to Michael Bopp re
Slavitt Deposition.
 CONFIDENTIAL

Attachment A: January 30, 2023 Letter from Richard Sauber to Michael Bopp re Slavitt Deposition.
Michael D. Bopp, Esq.
Page 1

January 30, 2024

Michael D. Bopp, Esq.

Gibson, Dunn & Crutcher
1050 Connecticut Ave. NW
Washington, D.C. 20036

Dear Mr. Bopp:

I write regarding the subpoena issued to your client, Andrew Slavitt, by the Committee
on the Judiciary of the U.S. House of Representatives (the “Committee”) on December 19, 2023.
This subpoena purports to direct Mr. Slavitt to appear to testify at a deposition at 10:00 a.m. on
Wednesday, January 31, 2024.

The subpoena raises multiple separation-of-powers concerns and runs contrary to well-
established principles of the constitutionally mandated accommodation process. The
Committee’s subpoena seeks deposition testimony from your client about matters, including
potentially privileged matters, that were a part of his official duties while serving in the White
House as Senior Advisor for the COVID Response and that relate to matters that are subject to
ongoing litigation. Additionally, the subpoena purports to demand that Mr. Slavitt attend the
deposition outside the presence of government counsel. 1

In light of these concerns, the White House has repeatedly invited the Committee to
engage in the constitutionally mandated accommodation process to attempt to reach a mutually
agreeable solution. 2 The White House raised these concerns with Committee staff as recently as
Monday, January 29, and offered to make Mr. Slavitt available for a voluntary transcribed
interview, accompanied by personal counsel and government counsel, in lieu of a deposition.

Regrettably, the Committee remains unwilling to address the serious constitutional

concerns raised by its subpoena and has rejected our efforts to reach a reasonable
accommodation between the Executive and Legislative branches before tomorrow’s subpoena
return date. 3

1
See H.R. Res. 5 (Jan. 9, 2023) (House deposition regulations, providing in section 3(k) that deponents “may be
accompanied at a deposition by two designated personal, nongovernmental attorneys” and that “[o]ther persons,
including government agency personnel, may not attend.”).
2
See United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977).
3
The offer of a voluntary transcribed interview accompanied by personal counsel and government counsel is the
second offer of accommodation that the Committee has rejected. The Committee previously rejected the White
House’s offer for Mr. Slavitt to provide written answers to the Committee’s questions—even though federal courts
in a parallel lawsuit, Missouri v. Biden, had rejected demands for depositions of certain witnesses and instead
Michael D. Bopp, Esq.
Page 2

The Department of Justice (the “Department”) has advised me that the Committee may
not validly require Mr. Slavitt to appear for a deposition outside the presence of government
counsel. This advice is consistent with prior guidance issued by the Department in response to
congressional subpoenas seeking testimony as to potentially privileged information. 4 As the
Department has explained, excluding government counsel in these circumstances undermines the
Executive Branch’s ability to protect its confidentiality interests in the course of the
constitutionally mandated accommodation process. 5

The underlying principles that inform this position are longstanding across
administrations. Here, the subpoena issued by the Committee prohibits the attendance of
government counsel at an appearance where the Committee has indicated it will ask questions
regarding, among other topics, Mr. Slavitt’s interactions with the President and other senior
Administration officials, and confidential information Mr. Slavitt learned and actions undertaken
within the scope of his official duties, including potentially privileged information. 6
Accordingly, to protect the constitutional separation of powers and the institutional interests of
the White House, I write to inform you that the White House does not authorize Mr. Slavitt to
appear at the Committee’s scheduled deposition tomorrow, Wednesday, January 31, 2024.

This instruction is consistent with our continuing commitment to good-faith negotiations

with the Committee in response to its interest in this matter. The White House remains willing to
discuss with the Committee appropriate requests for information and the circumstances under
which the White House may be able to provide that information. Nothing in this letter shall be
understood to waive or limit, on behalf of Mr. Slavitt or the White House, any potentially
applicable privileges, objections, or confidentiality interests regarding this or other congressional
requests for information.

Because of the constitutional defects with the Committee’s subpoena and consistent with
its past advice, 7 the Department has advised me of its position that Mr. Slavitt cannot be
prosecuted for contempt of Congress, punished through the use of any inherent congressional
contempt authority, or held liable in a civil enforcement action for failing to appear at his
scheduled deposition.

permitted written interrogatories. See In re Vivek H. Murthy; Jen Easterly; Rob Flaherty, No. 22-30697 (5th Cir.
Nov. 21, 2022) (per curiam).
4
See Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C.
__, *19 (May 23, 2019) (stating that “the constitutional balance requires that agency representatives be permitted to
assist agency officials in connection with providing deposition testimony” and advising that subpoenas purporting to
compel Executive Branch officials to appear without agency counsel “exceeded the Committee’s authority and were
without legal effect”).
5
Id. at *2.
6
Id.
7
See id.
Michael D. Bopp, Esq.
Page 3

Please do not hesitate to contact me directly if you have any questions or would like to
discuss this matter.

Sincerely,

Richard Sauber
Special Counsel to the President