ShadowMonkey - Issue Research: Congressional subpoenas

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Issue Research: Congressional subpoenas

Thursday, 22 March 2007

The ShadowMonkey Issue Research postings are an attempt to gather essential reading lists and facts regarding current issues. This is done in the hope of contributing to formation of informed opinions and the making of informed decisions by individual readers.

Context: Against the advice of the president, a House panel Wednesday (March 21, 2007) approved the issuing of subpoenas for President Bush's top aides, including presidential adviser Karl Rove, despite Bush's earlier offer to allow them to discuss - in private and not under oath - the dismissal of eight U.S. attorneys.

Congressional Investigations: Subpoenas and Contempt Power (PDF)
(Congresssional Research Service report via opencrs.com)

Summary: When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance. The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal judges generally encourage congressional and executive parties to settle their differences out of court. The specific examples in this report explain how information disputes arise and how they are resolved. For legal analysis see CRS Report 95-464A, Investigative Oversight: An Introduction to the Law, Practice, and Procedure of Congressional Inquiry, by Morton Rosenberg, and CRS Report RS30319, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, by Morton Rosenberg. A number of legislative tools, including subpoenas and contempt citations, are covered in CRS Report RL30966, Congressional Access to Executive Branch Information: Legislative Tools, by Louis Fisher. For a general report on oversight methods, see CRS Report RL30240, Congressional Oversight Manual. This report will be updated as events warrant.

Compliance with Subpoena from Congressional Subcommittee
(District of Columbia bar association)

Summary: In response to a Congressional subcommittee’s subpoena for a lawyer’s files pertaining to the representation of a current or former client and containing confidences or secrets that the client does not wish to disclose, the lawyer has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets. If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents. A directive of a Congressional subcommittee accompanied by a threat of fines and imprisonment pursuant to federal criminal law satisfies the standard of “required by law” as that phrase is used in D.C. Rule of Professional Conduct 1.6(d)(2)(A).

Serving the President — When must the president obey a subpoena?
(article on reason.com)

Excerpt: If a prosecutor believes a president is being uncooperative to such an extent that issuing a subpoena is his only option, must the president comply? How would a president be punished if he refused? Who would put the president in jail for contempt? Such practical questions highlight the difficulty of thinking of the president as if he were a private individual rather than a constitutional officer.

Congressional Subpoena Power
(message thread on usmessageboard.com)

Thread kickoff: Where exactly do they derive it from and who is in charge of enforcing their subpoena? Are we looking at a gap that the constitution doesn't cover?

Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships (PDF)
(BYU Law Review PDF)

Excerpt: The germs of executive privilege and congressional investigatory powers were contained in the 1787 Constitution. Nevertheless, principles for dealing with the interactions between these two doctrines have only recently begun to emerge. Probably the least satisfactory judicial approach to the accommodation of the competing needs of these two constitutional doctrines would be to hold the issue nonjusticiable. Such an approach would in fact resolve the conflict on a general, allencompassing basis, without any opportunity for taking into account the particular characteristics of the individual case. It is important that courts resolve these or any other conflicts between Congress and the President in a way that not only decides the case, but also recognizes the equality of the article I and article II branches as they appear before the article III branch. The only approach that is faithful to this objective is a straight balance of the competing interests, with no pre-merits weighting. For this reason it is the preferred approach, even though to date no court has applied it, and no judge or scholar has advocated it.

The limits of congressional subpoena power
(AP article via centredaily.com)

Introduction: Congress wants Karl Rove to testify publicly and explain his role in the dismissal of eight federal prosecutors. President Bush said "No way." In this political game of chicken, which side holds the legal advantage? AP spoke with Todd Peterson, a law professor at George Washington University, about where legislators' subpoena powers end and the president's executive privilege begins. Here's what he had to say.

Finally, find out why this furor over the dismissal of eight U.S. attorneys isn't really the issue we should be worrying about right now.

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