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.

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More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

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