House leaders are heading toward a potential legal confrontation with the Justice Department over subpoenas issued quietly last month seeking thousands of pages of documents from the Appropriations, Armed Services and Intelligence committees as part of the ongoing investigation into the activities of incarcerated former Rep. Duke Cunningham (R-Calif.).
The U.S. attorney’s office in San Diego sent subpoenas to the committee chairmen in late December seeking the documents by Jan. 11. As required by House rules, the chairmen reported the subpoenas in letters dated Dec. 22 to then-Speaker Dennis Hastert (R-Ill.), which were available to the public Dec. 27 in the Congressional Record. The subpoenas were first reported in the Los Angeles Times last week.
One source off Capitol Hill said the San Diego U.S. attorney’s office had been working with the House Counsel’s office for about a year to negotiate a hand-over of committee documents. The source said the negotiations apparently had hit a wall, forcing the Justice Department to drop subpoenas last month. “The situation has stepped up significantly,” the source said.
The subpoena requests could trigger a series of legal maneuvers as the House seeks to protect what likely are a number of privileged documents that fall under the constitutional Speech or Debate Clause, which provides protection to Members of Congress.
Aides to both Speaker Nancy Pelosi (D-Calif.) and Minority Leader John Boehner (R-Ohio) said Friday that the House’s legal response was still unclear. If the House opts to fight the subpoenas in federal court, it could take months — if not longer — to resolve the issue.
The potential court battle could further postpone a broad investigation into Cunningham’s illegal activities while he served on both the Appropriations and Intelligence panels. Cunningham pleaded guilty in 2005 to accepting more than $2.4 million in bribes in exchange for favors. He currently is serving an eight-year prison sentence.
The investigation is complicated by the recent Democratic takeover of the House, as the Cunningham matter unfolded under GOP control. The new Democratic chairmen and leaders are tasked with deciding on the next steps, along with the House Counsel’s office.
Appropriations ranking member Jerry Lewis (R-Calif.) — who is under investigation as part of the larger federal probe into Cunningham and earmarks — refused to comment on the subpoenas. However, Appropriations Chairman David Obey (D-Wis.) said Thursday that he was aware of the requests and waiting on instruction from the House Counsel.
“I am aware of it, but I’m not a lawyer,” Obey said, adding that he was open to cooperating as long as the investigation did not “step on the constitutional prerogatives of the House.”
Obey added that the panel would not be able to comply with a Jan. 11 deadline to turn over the documents. An extension of the deadline is likely and a routine legal step in such cases.
“To ask us to produce that stuff by [Jan. 11] is ridiculous given the fact that we haven’t taken over yet and every record that we’re talking about is a Republican record so I have no idea what the documents are and it’s a Republican problem,” Obey said. “We will try to cooperate, but it’s a Republican problem.”
Multiple calls to the House General Counsel’s office were not returned by press time Friday.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.