Amid White House clash, House asserts its own rights

7 Nov 2007 // House Democrats are clashing with the White House over the breadth of its executive privilege powers as the lower chamber has been invoking its own rights to protect members from complying with Department of Justice (DoJ) investigations.

House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) filed a contempt citation against the White House with the House clerk Monday in a last-ditch effort to cajole testimony from chief of staff Josh Bolten and former legal counsel Harriet Miers relating to the firing of several U.S. attorneys last year. If Democrats decide to take up the measure and it passes — two actions that are anything but certain — a constitutional clash would ensue over separation-of-powers issues.

But for more than a year, House Democrats and Republicans have waged a separation-of-powers battle of their own against the DoJ, with the House general counsel increasingly invoking the Constitution’s speech and debate clause to push back against public corruption cases implicating several members.

A bipartisan group of a dozen House members likely breathed a sigh of relief Monday when the trial of Brent Wilkes, the defense contractor accused of bribing former Rep. Randy “Duke” Cunningham (R-Calif.), came to a close without a renewed legal battle over whether they would be forced to testify. A jury found Wilkes guilty on 13 counts, including conspiracy, bribery, money-laundering and wire fraud.

Wilkes lawyer Mark Geragos, the high-profile celebrity defense attorney, had subpoenaed the lawmakers seeking information about the legislative process that would presumably include interactions with Wilkes.

Wilkes became politically radioactive after being accused of giving Cunningham $700,000 in gifts and cash in one of the biggest Capitol Hill corruption scandals in history.

Geragos asserted that several of the subpoenaed lawmakers have “direct knowledge and were participants in many of the activities listed in the indictment.

“As such they are clearly subject to the subpoena power of the court and must give relevant testimony like any other witness,” he wrote.

The House general counsel’s office filed a motion to quash the subpoenas, arguing that the Constitution’s speech and debate clause protects lawmakers from judicial interference with legislative activity and “from compelled disclosure of legislative information.”

Geragos withdrew the subpoenas after the judge threatened to quash them, but Wilkes has vowed to appeal his case, and the San Diego defense contractor has another trial to prepare for: the case involving alleged bribes to then-CIA executive director Dusty Foggo.

Also, in mid-October, Greg Lankler, a former Appropriations Committee staffer for Rep. Jerry Lewis (R-Calif.) who now works for Democrats on the panel, said he would fight a subpoena issued by a Los Angeles grand jury investigating Lewis’s ties to a lobbying firm and the tens of millions of dollars in defense contracts the firm had received. Lankler said he made the decision after discussing the matter with the House general counsel’s office and determining that the subpoena for documents and testimony was “inconsistent” with the privileges of the House.

In response, Citizens for Responsibility and Ethics in Washington (CREW), a liberal-leaning watchdog group, issued a scathing criticism of Speaker Nancy Pelosi’s (D-Calif.) vow to run the most ethical Congress in history when Democrats took control of the majority this year.

“The ‘cleanest Congress in history’ should not be using the speech or debate clause to impede House staffers from testifying about congressional corruption,” CREW Executive Director Melanie Sloan said. “It is the people who need protection from corrupt members of Congress, not corrupt members who need protection from the Justice Department.”

Sloan said she has witnessed an increased use of the speech and debate clause to protect members from DoJ corruption probes since the FBI raided Rep. William Jefferson’s (D-La.) office last year. Both parties viewed the raid, the first ever on a congressional office, as an outrage and a violation of the separation of powers.

Pelosi and then-Speaker Dennis Hastert (R-Ill.) closed ranks in a rare moment of bipartisan comity during a red-hot election year and joined forces to file an amicus brief to prevent documents seized during the search from being used in the bribery case against Jefferson. A federal appeals court recently ruled that part of the search was unconstitutional, but the government has appealed that decision. Conyers was one of those who signed on to the bipartisan brief.

Lawyers for lawmakers facing criminal charges certainly have the right to do everything in their power to protect their clients, but with approval ratings at historic lows, critics worry about the damage these legal fortifications are doing to Congress as an institution.

“The House general counsel’s office has taken an exceptionally aggressive view of speech and debate,” said David Laufman, a former assistant U.S. attorney who served as investigative counsel to the House ethics committee from 1996 to 2000. “They’re doing their job as advocates, but I’m not sure that such an aggressive position is in the overall best interest of the House.”

Jan Baran, a GOP ethics and election lawyer, disagrees. He argues that both sides are rightfully invoking constitutional separation-of-power protections, but he questioned the timing of the Democratic contempt citation against the White House.

“There were all these subpoenas to the White House from the Hill regarding the U.S. attorneys investigations seeking documents and communications at the same time that the House of Representatives was filing an amicus brief objecting to a U.S. attorney raid of Jefferson’s office,” he said. “And nobody saw any inherent contradiction to the two events.”

The difference, he said, is that Democrats know they have a good chance of losing their case if it goes to court, so they prefer “to grandstand in front of cameras” instead of achieving legal results.

A spokeswoman for Conyers argued that the White House is the party on weak legal ground because Democrats have tried to negotiate in good faith, most recently offering to interview select witnesses “on the record,” but not under oath. She also noted that the White House has invoked a blanket privilege, arguing that it answers to no one.

Asked how this differs with Congress’s own assertion of the speech and debate privilege, the spokeswoman said House members who signed on to the brief were doing so through the country’s judicial process.

“That was dealing with the court,” she noted. “The White House is saying they are the court.”