The Solyndra Subpoenas and the White House Response

The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc. by the Department of Energy.” This is the only request made by the subpoenas. Although they provide a non-exclusive list of examples that would be responsive to the request, they ask for no other documents.

In this letter, the White House Counsel Kathryn Ruemmler responds that the subpoenas are “unprecedented.” Unprecedented in what sense? Obviously, congressional committees have issued numerous subpoenas to prior administrations, including subpoenas seeking documents and testimony from White House officials. Such subpoenas were rare before Watergate (and virtually unheard of before World War II), but they have become rather commonplace since. Here are some examples of congressional subpoenas issued to the Bush Administration. During the Clinton Administration, House Government Reform Committee Chairman Dan Burton became something of a legend for the number of subpoenas he issued (reportedly over a thousand), including many to the White House.

Perhaps there is something about these particular subpoenas that makes them, in Ruemmler’s view, “unprecedented.” But nowhere in her letter does she explain what that might be.

Instead, her primary objection seems to be that the subpoenas are “overbroad.” She characterizes the document request as “extremely broad” because it “encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra,” and she suggests that “any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request.” She contends that responding to such an “expansive request” would place “an unreasonable burden on the President’s ability to meet his constitutional duties.” As an example, she cites the fact that the subpoenas would require producing “thousands of pages of news clips” literally responsive to the requests.

It is hard to characterize this objection as anything but silly. Asking the White House to produce all documents relating to a single small company is hardly placing an undue burden on the presidency. Federal agencies routinely respond to subpoenas and FOIA requests that are far broader in scope. All that needs to be done is to identify those locations most likely to contain responsive documents and to conduct a reasonable search thereof. Since most if not all of those locations will consist of electronic databases, a single search containing the word “Solyndra” would likely suffice.

One wouldn’t think that reviewing and copying all of the White House documents that refer to Solyndra would be that burdensome either. Just how often was Solyndra discussed in the White House, anyway? There presumably are fewer such documents in the White House than there were in the Department of Energy, which has already searched for and produced documents requested by the committee. I am sure that the White House is just as capable as DOE of responding to congressional requests.

I find it difficult to understand what Ruemmler means when she says the subpoenas are “overbroad.” A subpoena that sought all documents related to green energy, or all documents related to loans by DOE, might arguably be characterized as overbroad, but these subpoenas are narrowly targeted to one particular company. Contrary to Ruemmler’s characterization, moreover, they do not even seek all documents that relate to Solyndra. Instead, they are focused solely on documents that relate to the $535 million loan guarantee given to Solyndra. It is difficult to see how the subpoenas could have been any more narrowly drawn.

The only element of overbreadth one can infer from Ruemmler’s letter has to do with the time frame of the documents requested, which stretch back to the beginning of the Obama administration. This hardly seems like an unreasonably long period (less than three years), and it seems unlikely that compressing the period would have much impact on the burden of responding. Furthermore, if there are responsive documents from the beginning of the administration, they would seem to be clearly relevant to the committee’s investigation.

As for Ruemmsler’s concern about the thousands of pages of news clippings responsive to the subpoenas, I have a suggestion. She can withhold these documents and offer to let the committee inspect and copy them if it wishes. Or she can assign the job of copying them to an intern. I hardly think the problem rises to a constitutional level.

The only serious objection that the White House could make to these subpoenas would be one of executive privilege. Ruemmsler’s letter makes no mention of that doctrine, although it does allude to “longstanding and important Executive Branch confidentiality interests.” But the consistent and bipartisan position of the House is that this is the only legitimate ground for refusing to comply with a congressional subpoena. See Letter of May 16, 2008 from House Oversight and Government Reform Committee Chairman Henry Waxman to OIRA Administrator Susan Dudley (“’[T]he only privilege under which the President may withhold subpoenaed documents is executive privilege.’”) (quoting Letter of Apr. 18,1997 from John Rowley, Chief Counsel to Chairman Dan Burton, to Lanny Breuer, Special Counsel to the President).


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