Waning Power of the Subpoena
Submitted by J Boogie [TLL] on Thursday, 26 February 2009Comments
As I spend more and more time in the legal community, there has been one thing that I’ve noticed occur seemingly more often than in the past. Now, this is probably not true, it just shows my age and the time I have actually spent engaged in following stories like this. However, that doesn’t change the fact that the power of the subpoena, the primary tool of the American Court system to bring forth those who have important testimony or documentation, has seen a decline in power. How so? Here are some famous subpoena-ignorers and their reasoning for why they didn’t have to comply:- Former President Richard M. Nixon: The case that set off the trend of using “water” or “gate” as part of the nickname when talking about political scandals. Watergate! President Nixon’s refusal to turn over the much-ballyhooed recordings after subpoena by the Justice Department is quite possibly the most famous subpoena-disses ever. Only after several attempts, erasures and political upheaval did the requested tapes get turned over. President Nixon claimed executive privilege, which generally states that the President and members of the executive branch can resist subpoenas and investigative measures. This privilege is presumed, and the onus falls on the prosecutors to make a sufficient showing that the material that is claimed to be privileged is essential to the carrying out of justice. In the landmark case of United States v. Nixon, this rule was established and has become known as the “qualified executive privilege”.
- Former Secretary of State Condoleezza Rice: Ms. Rice was sought to give testimony before the House Oversight and Government Reform Committee in regards to the claim that Iraq had sought to import uranium from Niger for the development of its nuclear weapons program. In response, Ms. Rice publicly stated that she would refuse to comply with any such subpoena and was not inclined to testify.
- Former White House Counsel Harriet Miers: Harriet Miers, who some may remember as being Dubya’s first pass at getting a Supreme Court Justice appointed, had some role in the U.S. Attorney firings in 2007. Her testimony was sought by the House Judiciary Committee. She also refused to testify, and has resisted all efforts to get her to comply to this date.
- White House, Former Veep Dick Cheney and his office, the DOJ, numerous others: These set of subpoenas relate to the NSA Warrantless Wiretapping scandal that hit a few years back. The purpose was to gain information on why such a program was passed, and to determine its legality. In response, White House Spokesman Tony Snow regarded the subpoenas as being “an outrageous request.”
- The 7 Idiots of Troopergate: I hate bringing up anything Sarah Palin-related. I abhor her. She truly does not understand a great deal about politics, government and the world. She thinks having a window view of some part of Russia gives her insight into Moscow. But she has ties to subpoeana-dissing as well. The Troopergate scandal involved a dispute between Alaska State Trooper Mike Wooten and the Palin family. Ultimately..yada yada yada. I don’t want to get into it. But seven individuals refused to appear before the Alaska State Legislature, despite being subpoenaed to testify. Their claim? The subpoena process was “flawed”. Yeah. Right.
- Karl “Flighty” Rove: Again, Mr. Rove seems to like ignoring subpoenas. I saved him for last on this list because he is my hands down favorite. Under the same gun as Ms. Miers above, for the U.S. Attorney firings, Mr. Rove avoids subpoenas like Mario avoids Goombas. He has avoided multiple subpoenas, failing to appear at times. Often, Mr. Rove says he is willing to comply, only to fail to appear on a date that was mutually agreed upon. Rove claims executive privilege, much in the same way that Nixon, Bush and Cheney have done so in the past. However, the important thing to note is that George W. Bush is no longer our nation’s President. Only one President can make the claim of executive privilege, and as such, Mr. Rove’s defense does not apply.
The fact that so many of Mr. Bush’s staff have claimed the executive privilege to not comply with subpoenas is disturbing. A subpoena is a document that issues a command. Either, show up here at this date ready to talk, or show up with these requested documents. Inherent in the subpoena is a punishment. This punishment is meant to become active upon the refusal, denial, or non-compliance with the subpoena. A piece of paper has little threatening power aside from possibly papercuts. But these papers are special since they are backed by the threat of punishment. Yet, despite what is supposed to be a threat, so many have spat in the face of the subpoena. Where is the problem? Upon immediate failure of a party to respond accordingly to a subpoena, the issuing court should take action. A threat is meaningless if you don’t intend to actually follow through.
What should be done to revitalize the piss-in-my-pants factor that the subpoena has lost over the years? Once the subpoena is ignored, the court should initiate action to determine why the party failed to respond. If failure to appear is due to a blatant disregard for the laws and processes of this nation, that person should be tossed into jail until the subpoena date is scheduled. For those who claim executive privilege, the court should hold an immediate hearing to determine whether the testimony or physical evidence of the person subpoenaed will negatively affect national security, or is essential to the justice of the case. And when I say immediate, I mean it. If the issue was so important that the court saw fit to issue the subpoena in the first place, then they should be willing to follow up quickly enough to ensure that vital witnesses and documents do not go up in smoke. Also, the punishments for failure to comply should be made extremely harsh. Failure to appear on a subpoena should lead to automatic issuance of a warrant for the subpoenaed party’s arrest. I’m talking about sending the hounds after you, locking you up in a small cell, throwing away the keys (until you agree to testify). Sound bad? Yeah, probably over the top. But until people take these subpoenas seriously, they will remain the joke that they are. And clowns like Karl Rove will continue to smile into the camera, say he will comply, and hop on a jet and flee the country. Am I wrong on this one? What good is the subpoena if it does not carry a serious and legitimate threat behind it? Are we to believe that certain people are above the influence of the subpoena? The court has dropped the ball on this one, and they need to rectify it quickly. The effectiveness of the subpoena will continue to wane as more and more people ignore them. I say we implement these harsh procedures, and use Karl Rove as the first victim. He has avoided at least three subpoenas, and will likely continue to do so in the future. Despite his public statements that he would be willing to comply with the issued subpoenas, we all know the truth. Rove will do his master’s bidding until the day he dies. But an example and a precedent needs to be made somewhere. And perhaps now that Dubya is out of office, the time is now.
For a quick look at famous Bush Administration subpoenas, take a look here.
-TLL
