On the Megyn Kelly show last night, Judge Napolitano stated that Secretary Clinton’s server could not be subpoenaed by a House committee, but only by the House itself, because the committee lacks the power to subpoena “tangible things.” This echoes views expressed by Trey Gowdy, chairman of the Benghazi select committee, who claimed that his committee could not subpoena the server and suggested that whether even the House could subpoena it is an “open constitutional question.”
The Napolitano/Gowdy position strikes me as overly cautious. Admittedly, the question of whether a congressional subpoena can reach “tangible things” very rarely arises, and I am not aware of any precedent or even internal congressional guidance on the point. The quite comprehensive Congressional Oversight Manual, for example, does not seem to mention the issue. However, as described below, it is not necessary to resolve this general question to conclude confidently in favor of a House committee’s authority in the circumstances presented.
There are three relevant provisions that describe the types of items a House committee may subpoena. House Rule XI(2)(m)(1)(B) authorizes a House committee to compel “the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary.” The contempt statute, 2 U.S.C. § 192, makes it a criminal offense for a witness to “willfully make default” when summoned before either house or a committee thereof “to give testimony or to produce papers.” The statutory provision enforcing section 192 is somewhat more expansive, referring to the failure “to produce any books, papers, records, or documents, as required.” See 2 U.S.C. § 194.
On their face, these provisions do not authorize committees to subpoena or seize all tangible things or physical evidence that may be relevant to their investigations. For present purposes, therefore, I will assume that the House Ethics Committee could not issue a subpoena to a congressman demanding that he produce all the cash kept in his freezer. But I seriously doubt there is any constitutional prohibition against the House itself issuing such a subpoena (or delegating such authority to the Ethics Committee).
The Supreme Court has observed:
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it.
McGrain v. Daugherty, 273 U.S. 135, 175 (1927). It is difficult to believe that these observations, though made in the context of the Senate’s effort to compel the production of testimony and records from Mal Daugherty (the brother of our good friend Harry), would not be equally applicable to obtaining “requisite information” in the form of physical evidence should the House or Senate so require in the course of fulfilling the legislative or quasi-judicial functions assigned to it by the Constitution. Why wouldn’t a legislative body have as much right to obtain such evidence, in the rare case where it is pertinent to a legislative investigation, as would a court?
It is not, however, necessary to reach this issue because Secretary Clinton’s server may be comfortably located within the class of cases constituting the ordinary province of congressional investigating committees. That is to say the server is not being sought because it is physical evidence, like a bag of cash, but simply because it happens to be the medium in which relevant writings, communications and correspondence were recorded.
A literal and narrow reading of the terms used in the House rules and statutory contempt provisions might limit a committee’s subpoena authority to writing recorded on paper. But I do not believe that even the most aggressive defense counsel has ever made that argument.
Clearly the House itself has never read a committee’s authority in such a limited way. Here is how the House’s standard instructions and definitions defines the “documents” requested by a committee subpoena:
The term “document” means any written, recorded, or graphic matter of any nature whatsoever, regardless of how recorded, and whether original or copy, including, but not limited to, the following: memoranda, reports, expense reports, books, manuals, instructions, financial reports, working papers, records, notes, letters, notices, confirmations, telegrams, receipts, appraisals, pamphlets, magazines, newspapers, prospectuses, inter-office and intra-office communications, electronic mail (e-mail), contracts, cables, notations of any type of conversation, telephone call, meeting or other communication, bulletins, printed matter, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, questionnaires and surveys, and work sheets (and all drafts, preliminary versions, alterations, modifications, revisions, changes, and amendments of any of the foregoing, as well as any attachments or appendices thereto), and graphic or oral records or representations of any kind (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings and motion pictures), and electronic, mechanical, and electric records or representations of any kind (including, without limitation, tapes, cassettes, disks, and recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or nature, however produced or reproduced, and whether preserved in writing, film, tape, disk, videotape or otherwise.
Ok, the lawyers who drafted this paragraph (possibly including me) may have gone a little overboard and included a few words that were redundant, repetitive or otherwise superfluous. But the basic point is clear. The House wants all responsive information, whether you recorded it on Betamax, encrypted it with some fancy technology we don’t understand, or carved it on a stone tablet.
Nor is the House’s definition idiosyncratic. My copy of Black’s Law Dictionary defines “document” as follows: “An instrument on which is recorded, by means of letters, figures, or marks, the original, official, or legal form of something, which may be evidentially used. In this sense the term ‘document’ applies to writings; to words printed, litheographed, or photographed; to maps or plans; to seals, plates, or even stones on which inscriptions are cut or engraved.” (No cracks about how my copy of Blacks must date to the stone age).
Given these definitions, it seems clear that House committees have the power to subpoena electronic mail messages (also known as “e-mails,” the House helpfully explains) even if they only exist as electrons floating around Secretary Clinton’s server. It’s no different than if Clinton had communicated with her staff by chiseling messages in a large rock in her backyard.
So if House committees have the authority to subpoena relevant emails on Clinton’s server, surely they did not lose this authority by virtue of the fact that Clinton deleted them. As long as the emails are potentially recoverable, it seems to me that a committee has the power to compel their production.
As the Court noted in a case involving an investigation by the House Un-American Activities Committee, “[a] subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase.” U.S. v. Bryan, 339 U.S. 323, 331 (1950). The “great power of testimonial compulsion” (which includes the power to compel document production), “so necessary to the effective functioning of courts and legislatures,” imposes a “public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.” Id.
Performing this duty is “an intensely practical matter” and it would be up to House lawyers and Clinton’s attorneys to work out a practical solution to the technical problem presented. If Clinton wishes to go to the trouble and expense of hiring her own experts to conduct the recovery, perhaps she has the right to do so. But there is no high constitutional principle allowing Clinton to block a congressional subpoena because of the technical difficulty in extracting information from the server, particularly when she created the difficulty in the first place.
Of course, this legal analysis does not take into account the practical and political problems the House would face in attempting to enforce any subpoena against Secretary Clinton. Those problems, rather than any legal limitation on the subpoena authority of House committees, are most likely why a subpoena may never be issued.
But ordinary citizens should not be misled into thinking they could escape a congressional subpoena for information they happened to have deleted from their computers.