At the center of the ongoing lawsuit between House Republicans and the Securities and Exchange Commission over subpoenas for a House committee and a congressional aide is the Constitution's separation of powers. And the key to unlocking that dispute -- whether the House must comply with subpoenas from the executive branch -- might be a 1971 Supreme Court case involving the Pentagon Papers leaked by Daniel Ellsberg (pictured).
The aide, Brian Sutter, and the House Ways and Means Committee have been sued by the SEC to force them to comply with a subpoena issued as part of an investigation into the leak of non-public information to Wall Street back in April 2013. The leak, about an imminent policy change to Medicare, resulted in significant trading for some health care companies, which were about to benefit from a reversal in proposed funding cuts. A federal grand jury in New York is also investigating the leak.
The lawsuit, in which the SEC alleged Sutter "may have been" the source of the leak, followed the refusal of Sutter and the committee to comply. The counsel's office for the House, which is representing Sutter and the committee, told TPM earlier this week that the subpoenas "run seriously afoul of the Constitution's Speech or Debate Clause, and we expect to respond in due course on that ground, among others."
Generally speaking, the Speech or Debate clause, found in Article I of the Constitution, protects members of Congress from being prosecuted for their official work, except in extreme circumstances. It is a core element of the Constitution's separation of powers doctrine.
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