When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)

From The Hill:
“Next week Harry Reid is expected to start calling for votes on a range of executive branch nominees. I expect if he can’t get cloture, he will ask the Senate parliamentarian for a change in the rules so he can get the executive branch nominees confirmed,” said Nan Aron, president of Alliance for Justice and a member of the Fix the Senate Now coalition.


Personal and Confidential
The Honorable Elizabeth MacDonough
United States Senate
Washington, D.C.

Dear Liz:

I am writing you today about a matter of some delicacy. As you know, I have been having a lot of difficulties with the Senate, and with other things, and I am very certain that it is not your policy to add to those difficulties. So I am hoping you can help me out here.

As we are painfully aware, there is a Senate rule that allows a minority to block almost anything it pleases, including nominations that the President sends us. The Senate adopted this rule a long time ago, even before I was in the Senate. About the time Senator Byrd, may he rest in peace, came to the Senate, I think, though it is hard to believe that anything happened that long ago.

Specifically, Senate Rule XXII provides that to “bring to a close the debate upon any measure, motion, [or] other matter pending before the Senate” requires a vote “in the affirmative by three-fifths of the Senators duly chosen and sworn.” This sounds like mumbo jumbo to your average Joe, but you and I know that it means that I need 60 votes to shut up the “wacko birds” and get anything done around here. Liz, I don’t have 60 votes. I have 55. Sometimes a couple more, sometimes a couple less, but not 60. You see the problem.

People often ask me why, if this rule is such a big problem, we don’t just change it. The answer, as you well know, is that the framers of Rule XXII thought of that. (By the way, it drives me crazy that the Senate Rules always have to be written in roman numerals- I am sure that this was Byrd’s idea). Rule XXII says that to close debate on a “measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting.” That means that to change the rules, I need 67 votes.

Liz, I don’t have 67 votes. I have 55. If I had 67, I wouldn’t need to change the damn rule in the first place. Talk about your Catch XXII! (See what I did there? Get it?)

Continue reading “When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)”

Could Congress Subpoena Snowden?

So let’s say a congressional committee wanted to take evidence from fugitive extraordinaire Edward Snowden. What options would it have?

First, the committee could issue a subpoena to Snowden, just as it would any witness. Although I don’t know of any case directly on point, it seems to me that a congressional subpoena to a U.S. citizen would be effective regardless of where the citizen is located. See generally Blackmer v. United States, 284 U.S. 421, 437 (1932)  (“Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.”). If Snowden were properly served with a subpoena to testify at a congressional hearing, he could be held in contempt if he failed to appear.

Legally, I don’t think the committee would need any special authority to subpoena Snowden in a foreign jurisdiction as long as it could figure out a way to serve him with the subpoena. Although personal service is the traditional method of serving congressional subpoenas, one might argue that electronic service is adequate under these extraordinary circumstances. But even if service can be accomplished, the committee would still have the practical problem that Snowden could not be punished for contempt until he returns to the United States.

This brings us to another option. As discussed in this CRS memo from 1997, congressional committees have from time to time been authorized to take depositions abroad and seek other means of international assistance in gathering information abroad. The memo, which was written as the House was considering a resolution authorizing extraterritorial investigative activity in connection with the investigation of campaign finance irregularities, explains:

The Committee and its staff are not going to be able to barge into Jakarta or Beijing, set up shop and start subpoenaing foreign nationals or foreign government officials to testify under oath. Rather, the Committee will be given the opportunity to use the various international channels of access to foreign-held information. In the end, the degree of legal formality and difficulty encountered by the Committee if it seeks to hold hearings in a foreign country or to have depositions taken or written interrogation answered, will depend on the nature and sensitivity of the inquiry sought to be conducted which, in turn, will often determine the extent of international comity that will be accorded.

One procedure for obtaining international assistance in obtaining information is the use of letters rogatory, which ask a foreign court to use its own compulsory process to obtain testimony or documents from a witness. At least one congressional committee, the House Select Committee on Assassinations in the 1970s, successfully used letters rogatory to obtain evidence overseas. Other committees, such as the Iran-Contra select committee, have been authorized to use them but did not actually do so. See George W. Van Cleve & Charles Tiefer, International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair, 55 Mo. L. Rev. 43, 92 (1990).

Other methods of obtaining foreign assistance rely on treaty obligations to facilitate the service of process or the taking of evidence. A congressional committee can also seek a foreign government’s assistance as a matter of comity. The CRS memo describes how the October Surprise Task Force was able to obtain the cooperation of a number of foreign governments in obtaining documents and testimony relevant to its investigation, although, shockingly, “[t]he Government of Iran, contacted on numerous occasions through its Permanent Mission to the United Nations, denied the Task Force’s request to travel to Iran to conduct interviews.” The House Ethics Committee also found it difficult to obtain evidence during its “Korea-gate” investigation:

Key to the investigation was the role played by one witness, Kim Dong Jo, a former ROK official, who was not subject to compulsory committee process. In addition to the ROK’s reluctance to make the witness available, the Committee encountered difficulties with our Justice Department and the State Department, through which formal communications and negotiations with the ROK Government had to be channelled. Over a period of a year, the Committee, with the assistance of the House leadership, engaged in public education, Congressional pressure, negotiation, and finally Congressional reprisal.

As these examples illustrate, the key variable in these efforts in the cooperation of the foreign government. In the case of Russia, this is going to be a problem. The State Department website reports:

In July 2003, Russia unilaterally suspended all judicial cooperation with the United States in civil and commercial matters. The Russian Federation refuses to serve letters of request from the United States for service of process presented under the terms of the 1965 Hague Service Convention or to execute letters rogatory requesting service of process transmitted via diplomatic channels. The Russian Federation also declines to give consideration to U.S. requests to obtain evidence. While the Department of State is prepared to transmit letters rogatory for service or evidence to Russian authorities via diplomatic channels, in the Department’s experience, all such requests are returned unexecuted. Likewise requests sent directly by litigants to the Russian Central Authority under the Hague Service Convention are returned unexecuted.

This certainly raises questions whether a congressional committee could obtain Russian assistance to question Snowden. But it is at least conceivable that Russia, and its erratic president, would see advantage in cooperating with a congressional investigation into Snowden’s activities. They might prefer a congressional deposition of Snowden to permitting the executive branch to interview him.

In any event, you can’t know unless you ask.