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.
The first step for the investigating committee is to issue a subpoena to Assange for testimony and documents. Within the United States, congressional subpoenas are normally personally served by the U.S. Marshals Service, unless the witness has agreed to accept a different means of service. The Marshals cannot serve someone overseas though, and, I assume, there is no other way of personally serving Assange in his current location.
One might look to international assistance to serve the subpoena, but there is a catch. The most straightforward way of seeking international assistance is to start the process in the U.S. courts. U.S. court have inherent authority to issue letters rogatory, which are “formal requests for judicial assistance made by a court in one country to a court in another country.” T. Markus Funk, Mutual Legal Assistance Treaties and Letters Rogatory: A Guide for Judges 17 (Federal Judicial Center 2014). This authority is codified and regulated by statute, 28 U.S.C. § 1781, which authorizes the Department of State “to receive a letter rogatory issued, or request made, by a tribunal in the United States, to transmit it to the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive and return it after execution.”
If the committee wishes to ask a court to issue a letter rogatory to Assange, it will first have to have a case pending before that court. See CRS, Congressional Oversight Manual 51 (Dec. 14, 2014) (“If a congressional demand for information has been enforced in U.S. courts, through, for example, a criminal contempt conviction or the civil enforcement of a subpoena, U.S. courts may be able to seek assistance from foreign countries to enforce a court order.”). But in order to bring a civil enforcement action on its subpoena, it seems the committee would have to have already served the subpoena on Assange. So the committee might be able to use the courts to enforce the subpoena, but first it needs another means of serving the subpoena.
Although congressional subpoenas are normally served by personal service, another method of service is constitutionally acceptable so long as it complies with due process, meaning basically that it is reasonably calculated to notify the recipient of the subpoena’s existence. Since we know that Assange is in the Ecuadorian embassy in London, it would seem that certified mail addressed to him and received by anyone at the embassy would be reasonably calculated to give him such notice. (There may be legal or practical reasons why the subpoena could not be delivered to the embassy in this fashion, but none occur to me).
A longer-shot possibility, which I mention mostly for purpose of completeness, would be to try to use the British authorities to effect service on Assange. The British have no right to enter the Ecuadorian embassy, of course, but British courts or government officials presumably could have a subpoena formally delivered to the embassy in a manner that establishes it was received by an authorized person therein. The U.S. and the U.K. have a mutual legal assistance treaty that the committee could attempt to rely on for purposes of obtaining British assistance in this effort, but it would take a long time and the committee might be ineligible to receive assistance under the treaty anyway. See Congressional Oversight Manual at 52 (discussing US-UK mutual legal assistance treaty and noting “British officials may not view a congressional committee hearing as a ‘proceeding’ under the treaty.”). Most likely, therefore, this would not be a fruitful avenue for the committee to pursue.
If the committee is able to bring a case in court and asks the judge to issue a letter rogatory to Ecuador, it will still face substantial obstacles to getting Assange’s testimony. For one thing, the traditional letter rogatory process is time-consuming and “discretionary, based upon principles of comity rather than treaty, and is also subject to legal procedures in the requested country.” Funk, supra, at 17. Accordingly, “letters rogatory are generally considered a measure of last resort and are generally used only when no mutual legal assistance treaty exists.” Congressional Oversight Manual at 51.
If a U.S. court were to issue a letter rogatory to Ecuador, the Ecuadorian authorities might reject it on grounds of reciprocity, meaning that a similar request from Ecuador would not be honored in the United States. For one thing, although the letter rogatory would be issued by the court, it might be viewed as seeking information for use in congressional rather than judicial proceedings. And arguably a legislative hearing does not qualify as a “proceeding in a foreign or international tribunal” within the meaning of 28 U.S.C. § 1782(a) because it is purely an investigative proceeding, not a quasi-judicial or similar proceeding. See Congressional Oversight Manual at 53 (“[A] foreign country following a reciprocal approach may elect to decline to assist when requests originate from congressional committees, which are not commonly considered ‘tribunals’ because they lack the authority to render binding adjudication.”). These are not cut and dried issues, however, and Ecuador would in any event retain the discretion to recognize the letter rogatory if it so chose.
The congressional committee could also seek to take advantage of the Inter-American Convention on Letters Rogatory and Additional Protocol, to which both Ecuador and the United States are parties. The treaty requires the execution of letters rogatory when specified requirements are met. The biggest obstacle for the committee will again be the nature of its proceedings, as the convention applies only to letters rogatory “issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority” of a foreign country.
While a statutory letter rogatory would be processed through the State Department, the central authority under the Inter-American Convention is the U.S. Department of Justice, Civil Division, Office of Foreign Litigation. Interestingly, requests for service under the treaty are directed to a private contractor, Process Forwarding International (PFI), for transmittal to the Ecuadorian central authority. I am guessing that if PFI receives a request from a congressional committee, it will forward it to Ecuador unless the Justice Department tells it not to.
If a congressional committee wants to go all in to get Assange’s testimony, it would probably be well-served to use both the statutory letter rogatory process through the State Department, and the treaty process through the Justice Department. It would use one of these to attempt service of the subpoena on Assange, while simultaneously attempting to serve him by certified mail directed to the Ecuadorian embassy in London. Once it confirmed that the embassy had received the subpoena, it would file a civil contempt action against Assange in federal court and ask the court to issue a letter rogatory under the other process (or under both). This would maximize the committee’s chances of success, as well as the public attention to the matter.
The latter may be of more importance because at the end of the day, Ecuador is likely to be more responsive to the political pressure that Congress can bring to bear than to the legal arguments its lawyers make. There would seem to be little doubt that Ecuador can make Assange available for interview or deposition if it chooses to do so. Just last month, it granted a request to make Assange available for an interview by Swedish law enforcement investigating him for an alleged rape.
Because of these practical and political realities, the committee may need to think of creative ways to bring pressure on or provide inducements to Assange and/or the Ecuadorian government in order to secure the needed cooperation. It will also have to deal with the executive branch, which may or may not be willing to provide the committee with this support it needs to gain this cooperation. Over the years, committees investigating matters such as Iran-Contra, Koreagate, and the UN Oil-for-Food program have used a “combination of persistence, artful negotiation, and imaginative improvisation” to make up for the lack of clear legal authority in this area. See Rosenberg, supra, Ch. X (“Congress’s Extraterritorial Investigative Powers”). No doubt a committee will need all these skills to corner the wily Mr. Assange.