Under Pressure: The Congressional Subpoena

Congress and the administration keep getting closer and closer to the edge. As part of the U.S. attorney firings investigation, Senate Judiciary Committee Chairman Pat Leahy (D-VT) has threatened to subpoena Karl Rove and other White House officials, a subpoena the White House will certainly fight. And in the House, House reform committee Chairman Henry Waxman (D-CA) has subpoenaed Condoleezza Rice to testify next month; Rice has said she won’t comply.

So what happens when they get to the edge? Will we see top officials in cuffs soon?

The short answer: no, but a subpoena still gets results.

Former general counsel to the House Charles Tiefer explained that these face-offs never culminate in court.

“In theory, what happens is, after the House, or the Senate, goes through a certain process, [the case] is kicked over to a prosecutor,” Tiefer said. But to think that will actually happen “is a naive way” of looking at Congressional investigations.

No top government official has ever been indicted for failing to respond to a Congressional subpoena. Tiefer, who signed off on more Congressional subpoenas than anyone else while counsel to the House from 1984 to 1996, explained that these investigations mount pressure to achieve results.

When asked if a Congressional subpoena has teeth he asked his own question: “Does a vise have teeth?” Well, no, but, “you could crack stones in a vise.”

The investigation process ramps up political pressure with letters, media outreach, subpoenas and contempt until one side cracks. The more bipartisan support an investigation has, the heavier each move weighs. The more the public supports the opposing branch, the more likely a committee will be to back down.

Usually a negotiated agreement is reached before the investigation hits a serious phase.

For example, rarely has a House committee held an official in contempt over failing to produce documents. In 1998 Janet Reno was held in contempt for refusing to produce campaign finance papers from the 1996 Clinton-Gore campaign. The vote was along party lines and the face-off ended there. Only twice before had House committees voted to hold officials in contempt for failing to hand over documents– Secretary of State Henry Kissinger in 1975 and Interior Secretary James G. Watt in 1982. Compromises were reached in both cases.

It is also a rarity for the White House to play its trump card – official executive privilege. The current Bush administration has only officially claimed executive privilege once (seriously) in December of 2001, Tiefer said. Congress was investigating how the FBI handled informants, specifically in the case of Joseph Salvati, who spent 30 years in prison for a crime he did not commit. The FBI was accused of suppressing evidence that would have proved Salvati’s innocence to protect an informant. Bush ordered then Attorney General John Ashcroft to keep documents from the investigating committee, invoking his privilege.

Bush lost after hearings on the issue showed a precedent for handing over Justice Department documents in similar cases.

Even if the current investigations break from history, a trip to federal court would be messy, long and could end up fruitless. Sen. Sheldon Whitehouse (D-R.I.) pointed out this problem on a May 16 episode of Hardball:

MR. MATTHEWS: I get the message from the White House that they’re very confident that they don’t have to ever turn those e-mails over. Is that your sense, that they’re just going to be able to stonewall this? You can subpoena them all you want; you’re not going to get Karl Rove’s e-mails.

SEN. WHITEHOUSE: Well, the problem is that if you go the subpoena route and then you pursue it into court to pursue the contempt of the subpoena, by the time the delays and the lawyers and everything have taken place, they’re getting pretty close to the end of President Bush’s term. So he may be able to just brass this one out.

Current Congressional investigations have not yet hit the contempt or invocation of executive privilege stages, but Tieffer assures me that they will not end in federal court. A back and forth will lead to a negotiated outcome — or a permanent stand off. It almost sounds like politics.