Congressional Subpoenas Are the New Graymail

by emptywheel

The AP has the list of Congressmen whom Brent Wilkes has subpoenaed to appear at his trial. There are virtually no surprises on the list--all are either former or current Chairs of the Committees that knew of Wilkes' behavior and/or noted earmarkers in their own right. Here's why I think each person was subpoenaed.

Duncan Hunter, R-CA: Duncan Hunter was Chair of the Armed Services Committee when Duke Cunningham pulled off his scams. In fact, Hunter is the one who taught Cunningham how to earmark worthless programs to bring home pork for the district. He showed up on a list of people whose re-election had improved Mitch Wade's position in Congress. And he's on CREW's list of 22 most corrupt Congressmen.

John Doolittle, R-CA: He shows up on a list of people whose re-election had improved Mitch Wade's position in Congress. He's on CREW's list of 22 most corrupt Congressmen.

Jerry Lewis, R-CA: He shows up on a list of people whose re-election had improved Mitch Wade's position in Congress. He's on CREW's list of 22 most corrupt Congressmen. Lewis Chaired Appropriations in the last Congress.

Roy Blunt, R-MO: Blunt has been very good at the same kind of revolving door earmarking as Cunningham.

Denny Hastert, R-IL: Denny was in charge of Congress when Duke was getting bribed. And he shows up on a list of people whose re-election had improved Mitch Wade's position in Congress.

Jerry Weller, R-IL: Willing to craft trade programs for his personal benefit, Weller is on CREW's list of 22 most corrupt Congressmen.

Pete Hoekstra, R-MI: Hoekstra was Chair of the House Intelligence Committee and refused to declassify that committee's report on how Duke ripped the US off via that committee.

Joe Knollenberg, R-MI: Knollenberg is a fantastic earmarker in his own right and was lauded by Cunningham for his help in getting lobbyists their due. And boy did he squirm and fidget when I read The Wrong Stuff while sitting next to him.

Darrell Issa, R-CA: Issa's district is in the neighborhood and he has brought in some earmarks as well (though to Issa's credit, he started self-disclosing his own earmarks).

Norm Dicks, D-WA: On the Appropriations Committee, Dicks is one of the top earmarkers in Congress.

Silvestre Reyes, D-TX: Reyes is the Chair of the House Intell Committee--and has refused to declassify the committee's review of how it approved Duke Cunningham's scams.

Ike Skelton, D-MO: Skelton is the Chair of the House Armed Services Committee, one of the committees Duke scammed. There is probably a good deal of relevant paperwork in this committee that is otherwise unavailable thanks to Congress' expanding immunity from subpoena.

John Murtha, D-PA: Probably the Democrats' best earmarker, Murtha is also Chair of the Appropriations Defense Subcommittee. And if any Democrat was cognizant of Duke's scams, it'd be Murtha. Murtha showed up on a list of Mitch Wade's list of re-elected Congressmen who improved his, Wade's, position in Congress. And he's on CREW's list of 22 most corrupt Congressmen.

For their part, the Congressmen all said they'll refuse the subpoena. Which is all the more reason, I say, to prompt further scrutiny in these guys. To what degree are they hiding their knowledge of Cunningham's/Wade's/Wilke's activities? To what degree are they engaged in the same kind of massive earmarking that Cunningham was?

Update: Yup, they're invoking Congressional privilege to avoid testifying.

After consultation with the Office of General Counsel, I have determined that compliance with the subpoena is inconsistent with the precedents and privileges of the House.

Comments

[P J Evans]

I hope they all meet with the same fate as Cunningham.

[Katie Jensen]

We must clean house. God it's taken a long time for these lists to surface. Remember how we spent some time trying to guess at who all was involved? Dems need to approach this in a bipartisan way. It may explain why Pelosi refused to choose Murtha. (E.W, was it you who suggested this might be her reason for not choosing him?)

[texas dem]

Um... I didn't realize you could just subpoena a Congressman, swear him in, and make him say things under oath, when he isn't either party to the suit. Ronnie Earle vs Tom DeLay I get, and Boehner vs McDermott I get, but I sortof wasn't aware the situation described here was possible.

And it looks like it's not going to result in any kind of testimony from any of the Congressmen in this case.

But I wasn't aware that if you designed the right kind of lawsuit, you could possibly compel testimony under oath from a Congressperson. That seems like a very interesting avenue for progressive or conservative activism. It must not work out or people would be trying this more, right?

[emptywheel]

texas dem

Actually, Congress has a great deal of ability to avoid such subpoenas, and so long as one party (the Dems) don't want to force the other party (mostly the REpublicans) to disclose their involvement, they're going to be able to avoid doing so. Wilkes will no doubt make an interseting argument in court about why these guys' testimony is necessary, but except in a few cases (maybe Lewis and Hunter, for example) I can't imagine he can claim a close enough involvement to get them to testify.

I think this ploy has two goals. First, to make these people uncomfortable, and second to establish cause to argue that he wasn't allowed to mount a defense.

[chrisc]

EW, your approach is so reasonable- silly me- I imagined Wilkes had compromising pictures of each of these folks with his hookers!

Jokes aside, the one thing I find interesting is the timing of the subpoenas. On Friday, Judge Burns ruled that Wilkes could see the sealed addenda to the plea agreement of Tommy K. So, there might have been something in there that would have prompted the subpoenas at this time.

Michael's attorney seems to be taking the approach that Tommy K is a very bad person, so why go after my client and trip Tommy K so special. AFAIK, Wilkes lawyer on this case is still Geragos but he hasn't been returning reporter's calls with regard to the subpoenas-yet. So his strategy is a bit unclear.

[margaret]

Maybe you and everybody else in this country should just take a few minutes to read the damn Constitution before you fire off posts like this. And, you might also consider, as you criticize USA's [I totally abhor, BTHW, those who are dishonest and Bushies] for having done in the past what any lawyer would do: simply interpret the law. Political parties gain control of the white house, and appoint their attorneys generals, et al, with an agenda. Democrats do it, too. They are lawyers, and they interpret the law according to their political philosophy. It is a tribute to the flexibility of the Constitution that it can be legally used to support varying political philosophies.

Let us not conflate abuse of the law, subversion of the law, with differences based on philosophical ideas of how to apply the law.

And, before I leave this site, permanently, I wish to complain about a link, yesterday, which led me to a pornographic site, disguised as a legal link. I don't appreciate it one bit.

[P J Evans]

margaret's post was interesting ... since it doesn't seem to relate to anything on this thread. Not to mention that I doubt that any link outside of a comment would lead to a porn site.

[Darclay]

Seems that Wilkes is trying to put pressure on these Senators to force them to help him avoid his just punishment.

[Mary]

I miss all the good links.

[JohnLopresti]

I have looked into the internal effects of the kind of enabling administrators provide to feed the earmark engines, and found recently an article about Burns and Craig, and MarkRey; but another article discussing a $15 billion USD blackmarket in logs reminded me of the Cunningham affair, as well, especially the 5-star splurge branch: namely, there might be opportunity for a little coinlaundering of funds in some of those international transactions. But this is too OffTopic compared to the narrow subpoenaGraymal matter; though, maybe more later.

[radiofreewill]

margaret, please, you're missing the point of this post. This article is about a really crooked guy, Wilkes, who is at the epicenter of the largest Military Contracts for Favors scam, probably ever. These contracts appear to cover all kinds of stuff, scary stuff, that most of us know nothing about - like databases of citizens' info (that would be 'citizens' like you margaret,) and such.

Wilkes' defense is portrayed by EW in this vignette piece as showing everyone an image of "Wilkes and the 13 Congressmen" who were presumably all well aware of Wilkes' Contracting Activities, and then posing the question for the rest of US: "What's wrong with this picture?"

The USAs involvement in this story is actually part of the larger politicization of the DoJ issue being looked at by the SJC.

On the USAs, however, you seem to suggest that they are political animals whose philosophy's drive their interpretations of the Constitution, and hence, their actions - and you are okay with this.

That's a little too vague for me. You don't seem to be calculating in the primacy of "Service to the Constitution and the Rule of Law" over the political policies supported by that Law.

In fact, you seem to have it the other way around - your thinking seems muddy enough that you might be saying the political party in office gets to say what the Law is, according to its own philosophy.

IANAL, but this is America, and I know that's fucked up.

You can't 'fix' or 'bend' the Law to suit the Policies. That's the engine behind the six-year-long BushCo Trainwreck, and you appear to be whining from the grogginess of their sleeper car.

Please, have some coffee and Think about it...

[bmaz]

Margaret - If you are still around; I have read the Constitution and would like to know what portion or clause you are referring to and how it applies to this post. I don't think you have the coherent goods; but give it your best shot.

Quite frankly, I didn't know that Congressmembers were immune from subpoenas otherwise valid on their face when their testimony was relevant to a justiceable controversy. You can subpoena anybody in a case, but if they are not relevant to the case and the subpoena was properly issued, they can move to quash (dismiss) and seek to have the offending attorney pay their attorney fees and other costs as well as suffer other sanctions if appropriate. Let's assume for a minute that these attached congresscritters DID have relevant information affecting materially affecing a criminal case; they can blithely refuse to appear or otherwise provide testimony affecing a man's liberty? I find that offensive.

[radiofreewill]

And, margaret, just so you understand I'm not parsing trivialities for advantage, let me give you one small example of the Law being 'fixed' or 'bent' to fit the Policy:

Monica's hiring policy was something like this -

Hire, only if,

- member of Federalist Society
- demonstrated Neocon heritage
- references that vouch for 'evangelism'

Clearly, you would agree, that Policy is against the Law as we know it, right?

But, she was a powerhouse in the power structure of BushWorld. The Law was 'fixed' or 'bent' for her hiring activities in such a way that she was highly empowered to discriminate based on philosophy, on ideological grounds - and, as far as we know, she was Immune from the Rule of Law that applied to the rest of US. Monica was/is a member of an elite group, if you consider immunity from the Rule of Law a 'special' favor.

Now, imagine if the Policy becomes: "Jail all dissenters"...

[JohnLopresti]

re: shifting quagmire of implementation, consider a whitepaper posted today describing the former election official who quit after refusing to enforce a weak proscription against sending election machine circuit boards home with select few polling place officials in the aftermath following Cunningham replacement election, Republican declared winner; in some instances pollworkers kept the circuit cards for 3 weeks then simply took the so exposed devices to the poll on voting day. Turns out a computer expert in Univ of CA commissioned by CA new state election official revealed the brandname machines in the Cunningham replacement election are of a design such that altering one card could upload to all other machines during canvass of the election. However, even this new state elections official has made only incremental announcements about how to address this bug, given the vendor is in many places in CA, other locales in US, has opted to spin off its machine vending division, and sells devices overseas, as well. But after the Cunningham embarrassment, one supposes even, if sleight is how the election was counted, the same party successor has eschewed the most egregious cronyisms. Yah.

[emptywheel]

bmaz

Well, we haven't read the subpoenas.

BUt I suspect what Geragos has in mind is this: you're saying that Congress can't ignore a subpoena.

But they do have immunity for things done in the course of business. And that immunity just got a whole lot stronger with the Jefferson decision.

So I suspect that Geragos, after the Jefferson decision, said, "Golly, I think I'll subpoena everyone who had a way of knowing about the Wilkes deals, and I'll make them testify about how normal Wilkes' behavior was." Effectively, you'd be forcing Congressmen to willingly give up their immunity (which is right, since they Congressmen would basically be admitting to the widescale system of bribery called the US Congress.

The question is, can Geragos prove the case that they've got relevant evidence? I think it'll actually be easiest for Hoekstra and Reyes and anyone else who has read that report.

Note that the responses are standard, so it looks like both sides are responding with united voice.

[chrisc]

I hope you all don't mind a small diversion back to Kontogiannis.
It appears that "The Fambily" is still posting over at TPM.
One of Tommy K's companies is Chloe Foods, which bought out Blue Ridge Farms in 2005. The poster is claiming that K's aim was to get a food company to distribute olive oil from the family farms in Greece.

I did find Chloe Foods Corp and Chloe Foods Manufacturing in the NY State Div of Corporations Database.
Both are registered Mar 25, 2005
Andrew Themis (purported relative of K's wife) is the CEO, and registered agent.
I also found a court case filed in Federal Distric Ct- NY Eastern-
on 23 Oct 2006- Rothburg vs Chloe Foods Corporation et al
Case Number 1:2006cv05712
The interesting thing is that it is a RICO case.
So...once again IANAL, but could some of the lawyers who read this comment on whether this is just a typical kind of case for businesses to run into or whether it might be worth looking into.
Thanks.

[Mary]

I'm with bmaz on the subpoenas.

[freepatriot]

I'm with Mary about missing all the good links

me thinks that we got a new troll

or maybe I just missed a new member in my absence

most of you already know I love details, so what kind of porn was it ???

[jwp]

EW,

Depressing to think how far we are from having any understanding of the players or the stakes. We have no systematic view, and will never have one, and that is considered two virtues. A triumph of the grand jury system, and a triumph of classified information.

We don't know much about Wilkes. Have no real idea if he was a central player or a bit part. Bit part, is my guess, but we don't know.

Democracy is fragile enough in a state of fear and secrecy. It is feeble when administered by ruthless men who are abetted by civil servants who do not stand up for the rule of law.

Who will demand openness in an endless "time of war?"

[bmaz]

EW, Mary et. al. - I want to state right up front that I have never tried to subpona a US Congressmember, nor have I ever performed more than cursory research done tonight. So, if I am wrong, I fully hope someone will say so and explain why; I would welcome that. That said, I am sticking with my above initial thoughts. As far as I can tell, both the boisterous Margaret above and the subpoenaed congresscritters are relying on the Speech and Debate Clause (Article I, Section 6, Clause 1) for the claim of immunity from the subpoenas. It states as follows:

"...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place."

But the Speech and Debate Clause has always primarily been associated with detention or arrest of the congressperson, not as a cloak for their duties as citizens in relation to others. Indeed in United States v. Brewster, while continuing to assert that the clause “must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,” the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be “influenced in his performance of official acts in respect to his action, vote, and decision” on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. “Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman’s influence with the Executive Branch.” In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution, and the speech-or-debate clause interposes no obstacle to this type of prosecution. United States v. Brewster, 408 U.S. 501 (1972).

It should also be kept in mind the somewhat analogous scenario considered in Clinton v. Jones, 520 U.S. 681 (1997) where even a sitting president was deemed subject to process (subpoena) in a civil case. I do not see how congressmembers can blithely refuse process here if the process is otherwise proper. And that gets back to EW's issue as to whether Wilkes' attorney Geragos has issues a bunch of subpoenas willy nilly to our favorite pols. If so, the proper response to that is, as stated in my earlier comment, to move to quash, same as anyone else that was subpoenaed but really did not have any relevant knowledge.

[bmaz]

Oops, forgot a couple of things. As to the Bill Jefferson matter, I am not sure that does a whole lot to really move the ball on these kinds of issues; a lot of sturm and drang, but not much earth shattering precedent, if any. But, more importantly, is the interplay of the Confrontation Clause and it's adjunct right to compel process, which is contained in the Sixth Amendment and provides in relevant part that a criminal defendant has the right "to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor." This provision is one of the main backbones of criminal Constitutional due process. It is really, in some ways, a corollary of habeas. You are entitled to know the charges and evidence against you; this protects and enables that right. I don't know about others, but in my view when a man's liberty is at stake, that trumps the blanket bullshit assertion of privilege by a backslapping bag of hot air congressman. But hey, what do I know, I actually think OJ is getting railroaded unfairly in Las Vegas by the cops, prosecutors and low life ex-friends, all out for some twisted self glory (and, no, I am not saying he is innocent, just that the whole deal is being blown out of proportion and is BS).

[hauksdottir]

"...shall in all Cases, except Treason, Felony, and Breach of the Peace..."

So, if you want to arrest a congress-critter for a misdemeanor, such as protesting the war without a permit, or obstructing traffic, or littering, you must also charge him with violating the king's peace, whether or not you even have a king. (This was a great way to raise money for the Crown, by giving the king a third of all fines. IIRC, it goes back to Harold Fairhair; reparations went to the injured party before that.)

I'm hearing echoes of Alice's Restaurant, where the hardened criminals on the GROUP W bench punctuated the disturbing of the peace by stabbing it with their pencils.

Does this explain why Cheney wasn't charged with anything for his angry explosion and foul language on the Senate floor? As de facto king, he can't disturb his own peace of mind?

Does this mean they can do anything while traveling to and from their offices, as long as it is only a misdemeanor, or doesn't fall under those exceptions? Jogging naked to work: arrested, walking and smoking a joint: alright? And while on the Floor... passing out classified information: arrested, passing out checks for votes: alright?

Giving them immunity only works if they are above reproach in their official actions. As the media circus makes it ever more expensive to wage campaigns, we will get ever more efficient crooks in office.

[bmaz]

hauksdottir - Long time, little see. I almost hesitated posting the exact language because it one of the areas of the
Constitution that has evolved by necessity over the years. For instance, the exemption (privilege) from arrest really was designed to thwart a type of civil arrest/detention that does not really exist anymore. There is some disagreement, but the prevailing view seems to be that the privilege does not necessarily extend to any crime that is not part and parcel of the legislative process. We may all be getting a refresher on this question in the upcoming Larry Craig hearing, because he has raised this argument in relation to his motion to set aside his guilty plea. So, long story short, the critters are not quite as immune as they would have you believe.

[hauksdottir]

bmaz,

I'm still in the damned "donut hole" and am stretching my prescriptions. Medicine or groceries. The migraine is very hard to think around on the best of days. Often, I just dip over the headlines and try to keep current on the discussion. On the worst days, I keep quiet.

Stress doesn't help... I wish that there was more we ordinary citizens could do to motivate our representatives in government besides sign petitions and write letters. Why haven't our congress-critters impeached the bastards and opened those investigations? They have the duty to investigate and take action. Every office in the Executive branch, every IG, every senior official, every senior in the DoJ and CIA and NSA seems to be as corrupt as they come, and it keeps getting worse with each shuffling of the job chart. While various Congressional committee members stare fixedly at the rattling tails, they ignore the heads.

There will be no clean-up and restoration of our government, no withdrawal from the Middle East, and no movement on the environment until Cheney and Bush are sent packing back to their ranchettes. If *I* can see this, why can't Pelosi and Reid??? They are so worried about getting a solid majority, they don't see the real risk of not having a meaningful election at all.

Instead of endless committee meetings, where the requested documents are withheld and witnesses never bother to appear, simply cut to the head. Deal with the putative claims of executive privilege by interrogating the executive. Only then will we know whether we are ruled by law or by whim.

Instead of all these debates asking the same candidates the same questions they've been asking for decades, I'd love to have one on Constitutional rights and separation of powers and the proper role of the Presidency. Senator Clinton, why do you want to be Queen? Senator Obama, do you think a President needs unlimited War Powers? Rep Kucinich, after impeaching Cheney, would you impeach Bush, and who else? How far will you extend the clean-up? Senator Edwards, will you dismantle the police state? The data-mining? Senator Dodd, you want to restore habeaus corpus, but isn't that futile as long as the EOP produces signing statements rewriting the laws of the land? Anyone on the panel, would you make signing statements illegal and inoperative because only Congress makes the law? Or do you take whatever power you can grab while the grabbing is good? Sen. Gravel, why does America need a mercenary army? Is this better than a draft? Senator Biden, does America require a gulag of oubliettes spanning the globe? Anyone on the panel, would you join the civilized nations at the International Criminal Court, or is America justified in her rogue nation status? (I've got more questions where these came from.) I'd also make sure that no candidate hogged the time and if anybody tried to wriggle out of answering, they'd get a black mark for evasion.

I find it shocking and disheartening that Kucinich is the ONLY candidate from either party who feels that the Presidency is limited by the law. Only one man respects the Constitution?

Since none of the others are backing impeachment, for myriad and serious and obvious crimes, I have to assume that they all want to be dictators over an Administration that spies, lies, tortures, and wages continuous war for other countries' resources. Are we going to invade and occupy the North Pole next? Or just send Blackwater to secure the oil?

sigh

What happened to my beloved country? We've gone full circle back to dealing drugs and weapons, secret bombing raids, jingoistic propaganda, and for what? What has America gained by crawling in bed with petty dictators? What have any of these corrupt crooks really gained if they live in fear of exposure? If the law doesn't apply to everyone, as equally as possible, then it applies to no one, and we are back to "might makes right" and lawyers, like mercenaries, will use the law as a weapon rather than as a shield.

[emptywheel]

hauks

Glad to see you too--hope you, and Congress, gets past your respective doughnuts soon.

I don't know about others, but in my view when a man's liberty is at stake, that trumps the blanket bullshit assertion of privilege by a backslapping bag of hot air congressman.

But that's the point. Whatever the basis for the Congressional refusals (and I maintain that, if they believe they are being summoned to talk about events that happened in Congress and/or the HPSCI report, they have some precedent, and it would be like Geragos to use the Jefferson decision to his advantage), I'm guessing that Geragos is hoping that judge 1) rules the testimony necessary, and 2) accepts the Congressional refusal which 3) results in dismissal, just as it would in a successful graymail attempt.

All in all this may be only slightly less of a gimmick than the refusal to get a security clearance. But that's the kind of thing Geragos is trying, I think. Make Congress have to cede whatever immunity they have or dismiss a prosecution they would rather not happen anyway.

[bmaz]

Oh no, no, no; I take no position particularly with relation to the validity of Geragos' actions here. I don't know what his bases are for the issuance of the subpoenas; I'm with you, and you did a good job of running through their possible linkage, but as far as I know we don't know. Subpoenas, unless they are duces tecum for documents or other physical evidence, are not usually overly specific as to the nature of the testimony sought. So, the only question at this point is are the subpoenas "valid on their face" which means simply that they are procedurally correct in that it is a legitimate court, an actual case and cause number, properly authorized by the issuing court, specifying a reasonable time and place to appear and, most importantly, that the issuing court has personal jurisdiction to attach the person subpoenaed. I agree completely that if the congressmembers don't have both relevant and material testimony that they should be cut loose. My point is that the critters shouldn't just get to blithely refuse to appear. I have not seen a determination made, or even grounds asserted that could allow a determination to be considered, as to what the nature of the testimony is. Suppose for the sake of argument that some of these Representatives were all out on a fishing boat with Wilkes and Tommy Kontogiannis when the government alleges Wilkes was at Signatures Restaurant giving a bag of money to Cunningham. If you accept their blanket claim of refusal to appear and immunity, Wilkes can be convicted in the face of legitimate alibi witnesses that could have exonerated him. I don't believe this is the case for one second; but shouldn't there be some showing that they are not relevant and/or material before they skate?

[P J Evans]

hauks

Oh, what wonderful questions you've dreamed up! I wish those would get asked in front of a national audience, where any weaseling would be visible and (I'd hope) conspicuous.

[Sam Thornton]

"And, before I leave this site, permanently, I wish to complain about a link, yesterday, which led me to a pornographic site, disguised as a legal link. I don't appreciate it one bit." -- Posted by: margaret | September 18, 2007 at 16:45
=====================================================
Please provide link. I promise to investigate this at once!