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Geragos to Congress: Drop Dead

       Tomorrow a federal district court judge in San Diego will hear arguments on a motion to quash subpoenas to 12 sitting Members of Congress (Roy Blunt, Norm Dicks, John Doolittle, Dennis Hastert, Pete Hoekstra, Duncan Hunter, Darrell Issa, Joe Knollenberg, Jerry Weller, Jerry Lewis, John Murtha, and Silvestre Reyes) in the case of United States v. Wilkes.  The trial subpoenas were issued on behalf of defendant Brent Wilkes, who is accused of bribing former Congressman Duke Cunningham.  The subpoenas seek testimony and, in some cases, documents from the Representatives.   

Although the motion to quash raises a number of objections to the subpoenas, one compelling objection is based on Rule VIII of the House Rules, which governs the procedure to be followed by Members, officers and employees who receive subpoenas relating to the official functions of the House.   I believe that the court would be well advised to quash the subpoenas on this basis, rather than ruling on sensitive constitutional issues such as the Speech or Debate Clause at this juncture. 

The House General Counsel’s office, which is representing the Members, accepted service of the subpoenas on their behalf on September 5, 2007.  The following day the counsel’s office wrote to Mark Geragos, Wilkes’ counsel, requesting that he “specifically describe in writing what testimony you intend to seek from each Member” and why the testimony and documents sought “would be relevant to your case.”  The House Counsel’s letter explains that “[t]his information is necessary because Rule VIII of the Rules of the House of Representatives . . . authorizes House Members to respond to judicial subpoenas only if they are able to determine, among other things, that the information sought is ‘material and relevant.’ . . . Without this information, the Members will be unable to make the determinations required under House Rule VIII and will therefore be unable to respond to your subpoenas.”      

Geragos responded on September 11, declining to provide the information requested.  He contended that “requiring a defendant to disclose what testimony he seeks from a series of witnesses before the prosecution presents its case will necessary reveal the defense’s trial strategy and tactics.  That would unfairly prejudice the defense, and undermine the right to a fair trial.”  He also noted that “[o] ur preliminary research discloses no authority holding that . . . Rule VIII . . . trumps an accused’s Sixth Amendment right to compulsory process or his right to a fair trial.” 

Because the Members have been unable to make the determination that the subpoenas are “material and relevant,” House Rule VIII bars compliance with the subpoenas.  Generally the House Counsel’s office has been reluctant to place too much reliance on Rule VIII objections because of concerns that courts will view the rule as an effort by the House to define the extent of its own privileges.  However, Rule VIII does not purport to empower individual Members to make determinations binding on the courts.  Instead, the rule requires Members (or other subpoena recipients) to make certain determinations, including that of materiality and relevance, prior to complying with a subpoena.  If the Member makes the required determinations in the affirmative, he or she “shall comply” with the subpoena.  If any of the determinations, including relevance and materiality, are in the negative, the Member is authorized, after notifying the Speaker, to seek a judicial determination of the matter.  Thus, the final determination of relevance and materiality remains with the court. 

In this case, however, the Members have been unable to make the determination required by the rule because Geragos refused to provide them with an explanation as to why they were subpoenaed.  His contention that Wilkes’ right to a fair trial somehow justifies this refusal makes no sense.  Even assuming that Wilkes’ constitutional rights limit the amount of disclosure that is required, they certainly do not allow enforcement of a subpoena without a showing that the information sought is relevant to the case.  Thus, there can be no constitutional problem with requiring Geragos to provide the House of Representatives with at least the same showing of relevance as he would have to provide the court on a motion to quash. 

If Geragos had provided the information requested and the Members had nonetheless determined that the subpoenas were not relevant and material, the court might have to address some of the more difficult issues posed by Rule VIII, including (1) the degree of deference, if any, that the court should give to the Members’ determinations and (2) whether the standard of “relevant and material” under the rule mandates a greater showing than is normally required for enforcement of a criminal trial subpoena.  In this case, however, the court need not do more than find that Geragos, “celebrity lawyer” though he may be, has no right to subject a good portion of the House of Representatives to compulsory process without explaining why.  The court should make this finding not only because Rule VIII was properly enacted by the House pursuant to its rulemaking authority under the Constitution, but because comity between the branches demands no less.

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