House Rules
The WaPo has more on the logic behind the refusal of the 13 Congressmen subpoenaed yesterday to testify.
As required by House rules, the subpoenas were read into theCongressional Record late Monday evening. John D. Filamor, assistantHouse counsel, wrote Geragos on Sept. 6 to object to the subpoenas,citing House rules that forbid members from testifying in judicialproceedings unless their testimony is "material and relevant."
Filamor also cited the "speech or debate" clause of the Constitution asa likely impediment to the testimony and to "many, if not all, of thedocuments" Geragos is seeking from a handful of lawmakers. That clauseprotects members from being tried criminally for legislative acts.
We have yet to see the subpoenas themselves, but the mention of documents here suggests that one of the documents Geragos is seeking is the report on the HPSCI’s involvement in approving Cunningham graft–and perhaps other documents that chronicle Congress’ addiction to earmarks.
I don’t think I adequately explained what I meant yesterday when I said Congressional subpoenas are the new graymail. Recall that the goal of graymail is not to actually win a trial. It is to force the government into deciding between actually holding the trial or dismissing the charges against the defendant.
The reason I said this appears to be similar to a graymail attempt is because Geragos subpoenaed testimony that is, arguably at least, protected. If Judge Burns determines that the subpoenaed testimony is relevant to Wilkes’ defense, Congress’ invocation of "speech and debate" and House rules will then be weighed. Given the recent Jefferson decision ruling the FBI’s raid on Jefferson’s office illegal, the speech and debate clause may well be interpreted broadly. Which might–and this is Mark Geragos, mind you, so I say might–mean Congress would be given the choice whether to testify in the trial. And if they don’t, Burns might–again, I say might–have to dismiss the charges.
I doubt it’ll work (not least because there’s only about 3 Congressmen who really have directly relevant testimony, plus that one report), but it’s a novel stunt.
should we assume only 3 of these congressional types have relevant testimony? I have the sneaking feeling that the club knows far more about each others deeds than we may think. They believe themselves immune from prosecution for crimes committed as a member. I don’t think anyone doubts that one will protect another if each knows dirt about the other. re; hastert defending jefferson.
it is a broken system, this is an obvious example.
Don’t know much about Mark Geragos — except that he appeared to be a show-boating fool when he was defending Scott Peterson. Is he a sharp guy or merely an egotistical operator?
SDUT says pretty much the same thing
“He could say to the judge, ’If you bar me from getting the testimony – then I can’t defend my client and you have to dismiss the case.’ †Brand said that under such a scenario, Geragos would probably claim that Wilkes’ relationship with Cunningham was not out of the ordinary on Capitol Hill.
Brand said Geragos’ strategy appears to be to argue that the congressmen can help establish that Wilkes’ relationship with Cunningham was “part and parcel of what was going on†between congressmen and contractors.
Geragos strategy: But JUDGE, all the OTHER kids were doing it too. *g*
I think his hurdle is more relevancy than anything else fwiw. I also think that he does have a good shot at getting some kind of testimony if he gets past relevancy. I don’t really think that the Jefferson case did all that much – it pretty much broke out along procedural, not substantive, lines.
IOW, the case did not say that no one could get to Jefferson’s criminally relevant documents and it hasn’t suppressed anything. It has said that the Exec Branch shouldn’t be allowed to make a raid with no procedural protections on a location that would include legislative privilege documents comingled. The main concern was that the Congressman would have an opportunity to make his claims re: privilege prior to the Exec seizing and rifling through the docs. Granted, their concern might well be destruction of docs, but there are ways to address that other than storm trooping in and grabbing everything and then having loyal Bushies as DOJ cruise through the documents, computers, etc of a Congressman from a different political party.
The case seems to me to pretty clearly say Jefferson is subject to process and even implies that the privilege won’t necessarily trump criminally relevant docs (and I think that has been the case in bribery charges/members of Congress before – but don’t rely on me for that, I’d have to go look and pull cases) being produced.
Me – I’m a believer in procedure. I’m also a believer in accountability. I wasn’t that upset about the DOJ conducting the raid, but I think as they got to the last moments and could have the site relatively secured, there should have been more procedural deference to apprising the Hill and its security of what was happening. I also think that once things were secured, there needed to be a process for Jefferson and lawyer to first claim privilege before the Exec getting a free rifle through – not because in THIS CASE it’s not pretty clear what is going on, but bc every case sets precedent. And there is a lot a Congresscritter might have that Bush stormtroopers shouldn’t get without adequate protections.
In any event, speech and debate will only protect non-public, not on the floor, speech relevant to criminal activities but so far imo and I don’t really read Jefferson’s case as saying anything different – but that’s jmo and it’s worth the price. *g*
Geragos is going to try a lot though, and in part what he is hoping no doubt is that the threats to lay out more malfeasance of others as putting forward his foundation for relevance is going to be dreaded to the point were Congress – who has no bipartisan concern for blowing the life out of and limbs off of young American soldiers when there is decent lobbyist money to be had for it — that Congress will find all kinds of bipartisan support for covering its OWN ass.
Geragos’ attempt to place the whole Congressional appropriations system under the microscope may attract a lot of attention, but I don’t see it as particularly good legal strategy. Too easy for the DOJ to paint the blanket subpoenas as a fishing expedition. IMO, it would be better for Wilkes as a defendant to have targeted the subpoenas to the Congressmen most directly involved and most directly implicated if you were really trying to put pressure on them and raise the greymail stakes. You are more likely to get limited discovery if not complete compliance with a subpoena, and who knows what that might flush out? The same issues are available to be argued in terms of prejudice to the right of full answer and defence, the same pressure is brought to bear on the government, if it is indeed the most vulnerable Republicans who are exposed here, the more likely some pressure will be brought to bear on the prosecutors to ease up. The shotgun approach in this context is sloppy and as Mary says, makes it harder to clear the relevance hurdle and taints your application in the eyes of the judge. I have never been particularly impressed with Geragos’ handling of this case, from the refusal to get a security clearance onward, and this overplaying of the greymail reinforces my opinion.
Geragos is going to try a lot though, and in part what he is hoping no doubt is that the threats to lay out more malfeasance of others as putting forward his foundation for relevance is going to be dreaded to the point were Congress – who has no bipartisan concern for blowing the life out of and limbs off of young American soldiers when there is decent lobbyist money to be had for it — that Congress will find all kinds of bipartisan support for covering its OWN ass.
Bingo, Mary. Congress has shown no interest in its privileges to protect the Constitution or our troops. But it has shown that interest in case of their own well-funded behind.
I’m curious how the House Counsels are paid and appointed. It strikes me that it’d be a lot easier for Congress to appoint a Counsel that really represented the interests of the MOCs, rather than citizens, than it is for the WH to appoint a Counsel that represents the WH interests over the citizens. And given the example of Gonzales, that’s quite a bit.
Well, I should read your new posts before commenting on old ones. My bad. Ok, the situation looks about right now. Congresspeople are raising materiality and relevance, not just refusing. If they don’t reach an agreement with Geragos though, I still maintain they will have to file a formal motion to quash with Burns or whoever the trial judge is. I will say this though, under Brewster and several other cases, to the extent that fraud was part of the equation, and it is demonstrable in a couple of situations thanks to Cunningham (and maybe TK), the privilege even on inherent congressional activities may weaken substantially. On the whole, I am with you EW on what Geragos is up to here; but as to a couple of these critters, there may be a legitimate issue.
I think Mary and I are on almost exactly the same page here. To me, the process, and due process, is king and is far more important than any individual case or result. I said this on the earlier thread, but Jefferson really didn’t move the ball any on these issues that I am aware of, it just cleaned up a mess resulting from two overreaching parties; DOJ and Hastert et. al. I also agree with Ishmael in that I would have been a bit more subtle in this; but I would have done it at least as to a few of the critters. Mary, there are many cases, but the Brewster case I cited on the first thread is a good place to start. to a lesser extent, see also Hutchinson v. Proxmire and Us v. Johnson.
Greymail and earmarks. No one wants to admit that Shays(Intelligence Committee) planned and financed the Afghanistan war(PC and Green Berets) and sent money to old pals by USAID(CIA). Chayes is an old pal and so is dad. Shays wife got a job in research. Joe is an old pal. Plame dad was NSA and Joe’s dad was a diiplomat in Spain(CIA).
first
I don’t know how idscfirstover works on IHutchinson vntelligence Committee earmarks,
bmaz – thanks for the names – what you have pulled from Brewster is the kind of thing that I was thinking I remembered in the vague general, although not that specific case. Unfortunately- politicians and bribes do have some precedent.