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Odd Subpoena Imperils Inquiry

An unusual arrangement concocted last week by the House Oversight and Government Reform Committee to share subpoenaed documents with the House ethics panel could create enforcement hurdles in its search for mortgage documents.

In a subpoena the Oversight Committee released late Friday night, the panel demanded Bank of America turn over loan information related to Countrywide Financial’s VIP loan program, specifically mortgages issued to current and former House lawmakers, as well as House aides and officers, and a broad swath of other federal employees.

But in a novel directive, the subpoena instructs Bank of America to split the distribution of those documents concerning current House lawmakers and their spouses, sending full documents to the House ethics committee but redacted versions — eliminating names, addresses and other identifiers — to the Oversight panel.

According to former House ethics aides and other individuals knowledgeable with the Committee on Standards of Official Conduct, the Oversight Committee’s decision to divide its prospective document haul in such a way — essentially subpoenaing documents on behalf of another committee — is an exceptional occurrence, one that could raise legal questions including challenges to the subpoena.

“They have jurisdiction to find facts and determine what might be done in connection with the mortgage banking industry, and they obviously don’t have jurisdiction over obligations of Members of Congress,” Rob Walker, an attorney with Wiley Rein who was previously a top aide to the Senate and the House ethics committees, said of the Oversight panel.

“In terms of enforcing the subpoena and complying with the subpoena, it could raise some very significant enforcement issues,” Walker added. “Subpoena enforcement requires acting on specifics and so, if it does become an issue, there may have to be some further compromise in terms of what information the ethics committee is able to share to accomplish enforcement of the subpoena.”

But attorney Stan Brand, a former House counsel, offered a starker view of the Oversight panel’s unique subpoena.

“In a word, they’re poaching on the ethics committee’s jurisdiction,” Brand said. “And it’s not just a legal issue. It’s a sensitive internal one because it’s the ethics committee that’s designed to look into the conduct of Members, so if every committee started doing this they could obliterate the jurisdiction of the ethics committee.”

Brand noted that the Oversight Committee’s decision to issue a subpoena including another panel’s jurisdiction could create an opening for Bank of America to object to turning over the documents.

“Bank of America has the same rights any other witnesses has,” Brand said. “They can object and say it’s not within the jurisdiction of the committee.”

The subpoena issued to Bank of America is included in a broader investigation of mortgage lenders announced by the Oversight Committee last week amid rising tensions between the panel’s Democratic and Republican lawmakers over whether to investigate the program.

Ranking member Darrell Issa (R-Calif.) had pursued a Countrywide investigation for months without the panel’s formal blessing, as Chairman Edolphus Towns (D-N.Y.) had resisted an inquiry, arguing that the dragnet could expose sensitive personal information of innocent people and deferring to the Justice Department as best-equipped to review the program.

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