The organization Citizens for Responsibility and Ethics in Washington (CREW) put out this news release regarding a grand jury subpoena received by Representative Visclosky. Entitled “WITH VISCLOSKY’S SUBPOENA, CREW ASKS — WILL HOUSE COUNSEL ONCE AGAIN STYMIE A CRIMINAL INVESTIGATION INTO A MEMBER OF CONGRESS?,” the essence of CREW’s point seems to be that it is per se improper for House Counsel to be involved with Speech or Debate or other privilege issues in connection with a criminal investigation of a Member of Congress. According to CREW director Melanie Sloan, “Although members of Congress campaign against the ‘culture of corruption,’ behind the courtroom door — and out of the public eye – the House Counsel, acting on behalf of both the Speaker of the House and the Majority Leader, routinely steps in to protect members who have abused their offices and the public trust from prosecution. The Republicans and Democrats may not see eye-to-eye on much, but both parties agree members of Congress should be above the criminal laws that apply to the rest of us.”
As a former senior counsel in the House Counsel’s office, I know a little bit about this subject so I telephoned Naomi Seligman, who is listed as the CREW contact person for this issue. Had Ms. Seligman cared to speak with me, I could have explained to her the House Counsel does not represent Members of Congress in criminal investigations. If Visclosky is a potential target of the grand jury investigation (which appears to be the case), the House Counsel will be unable to represent him due to the potential conflict between his personal interests and those of the House as an institution. Accordingly, CREW’s statement that “if recent history is any guide, the House Counsel will soon step in and move to quash the subpoena” is simply false.
If Visclosky should decide to move to quash the subpoena in whole or in part, the motion would be made by his personal counsel. It is not uncommon for personal counsel to consult with House Counsel on this issue, given the latter’s expertise in Speech or Debate issues, but in my experience the decision is in no sense made by House Counsel (or by the Speaker to whom the House Counsel reports). It is true that if a motion is filed, and an issue deemed of institutional significance to the House is raised, the House Counsel may file an amicus brief on behalf of the Speaker and/or the Bipartisan Legal Advisory Group.
Perhaps CREW has intentionally distorted its news release for purposes of making its point in the most simplistic way possible. But if it were interested in actually understanding the process it is criticizing, I would have been happy to explain it to them. But the gentleman who answered the phone refused to allow me to speak with Ms. Seligman, saying that she only speaks with “the press.” Nor was he willing to let me speak with anyone else knowledgeable about the release (despite my explaining the reason for my call).
I guess that CREW is too busy preaching openness and transparency to practice it.