Subpoenas May Lead to Showdown

8 Jan 2007 // House leaders are heading toward a potential legal confrontation with the Justice Department over subpoenas issued quietly last month seeking thousands of pages of documents from the Appropriations, Armed Services and Intelligence committees as part of the ongoing investigation into the activities of incarcerated former Rep. Duke Cunningham (R-Calif.).

The U.S. attorney’s office in San Diego sent subpoenas to the committee chairmen in late December seeking the documents by Jan. 11. As required by House rules, the chairmen reported the subpoenas in letters dated Dec. 22 to then-Speaker Dennis Hastert (R-Ill.), which were available to the public Dec. 27 in the Congressional Record. The subpoenas were first reported in the Los Angeles Times last week.

One source off Capitol Hill said the San Diego U.S. attorney’s office had been working with the House Counsel’s office for about a year to negotiate a hand-over of committee documents. The source said the negotiations apparently had hit a wall, forcing the Justice Department to drop subpoenas last month. “The situation has stepped up significantly,” the source said.

The subpoena requests could trigger a series of legal maneuvers as the House seeks to protect what likely are a number of privileged documents that fall under the constitutional Speech or Debate Clause, which provides protection to Members of Congress.

Aides to both Speaker Nancy Pelosi (D-Calif.) and Minority Leader John Boehner (R-Ohio) said Friday that the House’s legal response was still unclear. If the House opts to fight the subpoenas in federal court, it could take months — if not longer — to resolve the issue.

The potential court battle could further postpone a broad investigation into Cunningham’s illegal activities while he served on both the Appropriations and Intelligence panels. Cunningham pleaded guilty in 2005 to accepting more than $2.4 million in bribes in exchange for favors. He currently is serving an eight-year prison sentence.

The investigation is complicated by the recent Democratic takeover of the House, as the Cunningham matter unfolded under GOP control. The new Democratic chairmen and leaders are tasked with deciding on the next steps, along with the House Counsel’s office.

Appropriations ranking member Jerry Lewis (R-Calif.) — who is under investigation as part of the larger federal probe into Cunningham and earmarks — refused to comment on the subpoenas. However, Appropriations Chairman David Obey (D-Wis.) said Thursday that he was aware of the requests and waiting on instruction from the House Counsel.

“I am aware of it, but I’m not a lawyer,” Obey said, adding that he was open to cooperating as long as the investigation did not “step on the constitutional prerogatives of the House.”

Obey added that the panel would not be able to comply with a Jan. 11 deadline to turn over the documents. An extension of the deadline is likely and a routine legal step in such cases.

“To ask us to produce that stuff by [Jan. 11] is ridiculous given the fact that we haven’t taken over yet and every record that we’re talking about is a Republican record so I have no idea what the documents are and it’s a Republican problem,” Obey said. “We will try to cooperate, but it’s a Republican problem.”

Multiple calls to the House General Counsel’s office were not returned by press time Friday.

According to Charles Tiefer, a former House General Counsel who is now a professor at the University of Baltimore School of Law, much of the committees’ work falls under privileged communications, making the House less likely to willingly comply with the U.S. attorney’s request.

“There are very clear Speech and Debate privileges surrounding these materials and that’s a big problem,” he said.

Tiefer said in such matters the House tends to offer a bipartisan response on behalf of the institution, as GOP and Democratic leaders did in May 2006 when the FBI raided the Congressional office of Rep. William Jefferson (D-La.) in a separate federal corruption probe.

Under the auspices of the House Bipartisan Legal Advisory Group, a legal brief was filed on behalf of Congressional leaders raising Speech or Debate issues in the Jefferson case. While their request to have the documents seized in the raid returned to Jefferson was initially denied by a Washington, D.C., federal court, an appeals court in July overturned that ruling and the dispute continues to play out in federal court. The Washington, D.C., Court of Appeals ruled in mid-November that the FBI could begin searching through some of the materials seized.

“The most likely scenario is for the House Counsel to submit its position to the relevant federal court to decide whether or not the documents are privileged,” Tiefer said regarding the Cunningham investigation.

The Justice Department has been increasingly aggressive of its investigations into Congress, Tiefer said.

“It ebbs and flows,” he said, “This is a flow, much more has been happening recently than it has for a while ... the prosecutors are pushing the envelope and not containing themselves to nonprivileged materials” in their investigation.

Additionally, according to the Congressional Record, two staffers also have been served with subpoenas regarding the Cunningham matter. On Dec. 20, Rebecca Kuhn notified the Speaker of her subpoena. Kuhn was formerly Cunningham’s executive assistant and most recently worked for former Rep. Chris Chocola (R-Ind.). She has left Capitol Hill and now works as an executive assistant for former Rep. Billy Tauzin (R-La.) at PhRMA. Kuhn did not return a call seeking comment.

In a letter dated Dec. 22, GOP Appropriations aide Elizabeth Phillips notified the Speaker of her own subpoena. Phillips works on the Appropriations subcommittee on Defense, on which Cunningham served. Phillips also did not return a call seeking comment.

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