Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or testimony overseas through the use of letters rogatory or requests for legal assistance under applicable treaties, though these are far from guaranteed methods of success. As far as I know, no congressional committee even attempted to subpoena Snowden.
With calls for congressional investigation of Russia’s alleged interference in the 2016 presidential election, one or more committees may now face the issue of attempting to subpoena Julian Assange, the founder of Wikileaks and a key witness in any such investigation. Attempting to secure Assange’s testimony may be even more challenging than trying to get Snowden’s because Assange is not a U.S. citizen and he resides in the sovereign territory of one country (Ecuador) located in another (the UK). Specifically, Assange lives in the Ecuadorian embassy in London.
Before getting into how a committee might attempt to procure Assange’s testimony, it should be noted that the committee would be wise to get authorization from its chamber to seek information abroad. As Mort Rosenberg explains in his forthcoming book, such authorization has traditionally been the first step in requesting international assistance to obtain information:
Since 1974 ten special congressional investigating committees have been vested with authority to request the judicial assistance of U.S. courts to take depositions or access information in foreign jurisdictions through the vehicle of letters rogatory and to seek other means of international assistance in gathering information in foreign countries.
Morton Rosenberg, When Congress Comes Calling: A Study of the Principles, Practices, and Pragmatics of Legislative Inquiry (anticipated January 2017 publication). Such authorization, to be sure, is not a magic wand that entitles the committee to all (or any) foreign discovery it desires. It may not even be legally necessary, but it does give the committee an “imprimatur of authority to utilize formal judicial and international treaty processes,” as well as serve “to give legitimacy to less formal ventures to obtain necessary information.” Id.
Thus, whether the investigation is conducted by a special committee or a permanent committee, it makes sense for the House or Senate to adopt a resolution specifically authorizing the committee in question to use means of international assistance to obtain information overseas. The committee also needs deposition authority (if it doesn’t have it already) since Assange and other foreign witnesses almost certainly cannot be compelled to travel to the United States to participate in a hearing. Finally, for reasons explained below, the committee should be authorized to effectuate service by means other than traditional personal service.