House Subpoena Notices

As we have previously discussed, House Rule VIII requires that upon being properly served with a subpoena relating to the official functions of the House, a member, officer or employee shall “promptly notify the Speaker of its receipt in writing” and “[s]uch notification shall promptly be laid before the House by the Speaker.”  On February 10, 2011, attorneys for Roger Clemens served the House Committee on Oversight and Government Reform (COGR) with a subpoena for documents.  The parties have agreed that COGR will have until March 18 to respond to or move to quash the subpoena.

As far as I can tell, the only Rule VIII notice this year from COGR was given on March 3.  The notice informs the House that COGR “has been served with a subpoena for documents issued by the United States District Court for the District of Columbia in a civil case now pending before that Court.”  The notice further states that COGR will consult with the House General Counsel and make the determinations required by Rule VIII.  This suggests that the subpoena raises some substantial legal issue (otherwise the notice would simply state that compliance was consistent with Rule VIII).

Does this notice refer to the Clemens subpoena?  One would tend to think so, except that Clemens’s case, while pending in the United States District Court for the District of Columbia, is a criminal, not a civil, case.  Perhaps this was just a typographical error.  Or possibly the notice refers to another subpoena (in which case there has been no notice filed for the Clemens subpoena).

One might expect the mystery to be cleared up by March 18.  By that time COGR will have to make the determinations required by Rule VIII regarding the Clemens subpoena.  According to clause 5 of Rule VIII, “[t]he Speaker shall inform the House of [the determinations required by the rule],” and, in so doing, “shall generally describe the records or information sought.”  Thus, there should be an additional notice that will clarify the nature of the subpoena in question.

In actual House practice, however, the notification required by clause 5 is seldom, if ever, made.  In all likelihood there will be no further notice to the House regarding the subpoena, what documents were sought, what determinations were made, or anything else that might allow the House to make a judgment regarding the propriety of the response.  The Speaker and the Bipartisan Legal Advisory Group will have this information, but no one else will.  While this practice offers the advantage of protecting the confidentiality of sensitive legal proceedings, it is rather far from the transparency promised by the language of Rule VIII.

Incidentally, in searching for the notice for the Clemens subpoena, I came across this notice from yesterday’s Congressional Record.  The Archivist of the House notifies the Speaker of receipt of a civil subpoena for documents “issued before the Evidentiary Panel for the State Bar of Texas.”  The Archivist states that “compliance with the subpoena is inconsistent with the precedents and privileges of the House.” It would be interesting to know what this subpoena involved and why compliance was inconsistent with House precedents and privileges.  But under House practice there is no way to know this.