Congressional Subpoenas
In a recent press release, the House Oversight Committee voted to advance two resolutions to hold “President Bill Clinton and former Secretary of State Hillary Clinton in contempt of Congress for refusing to comply with duly issued subpoenas.” The question is, were those subpoenas duly issued?
With the recent news of the House of Representatives, or at least the House Oversight Committee at the time of this writing, recommending the Clintons be charged with contempt of congress, I thought it was a good time to talk about both the subpoenas and contempt charges. Let’s start with Subpoenas.
Subpoenas
The best place to start, in my opinion, is with a definition of what a subpoena is.
A formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony.
Having received a federal subpoena, I am familiar with the language. In my subpoena I was “commanded to appear” at a federal court at a specific time. My subpoena was issued by a United States Attorney’s Office, but the Clinton’s subpoenas were issued by Congress. Which to me brings up the question: What is a “duly authorized body” and just how are they authorized? At the federal level, there is one overarching document that must first authorize a body to issue a subpoena: The Constitution.
Let’s start with the Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
If you have been charged with a crime your rights include the ability to both confront witness(es) against you and compel witness(es) in your favor. This duly authorizes courts, and those on both sides of the case, to subpoena both sets of witnesses. This was the reasoning behind the subpoena I was served; I was being asked to give testimony in a case. The subpoena was legitimate.
Contempt
The other word we need properly defined is “contempt.”
Open disrespect or willful disobedience of the authority of a court of law or legislative body.
I’m sure we’ve all seen a movie or TV show where someone is charged with contempt of court, the disrespect or disobedience of a court. If you are given a court order and you disobey it, you can be held in contempt of court. If you treat the court with disrespect, the judge may hold you in contempt of court. Of course there are some judges who abuse this power, holding people in contempt for disagreeing with them or for challenging a decision. Hopefully, those instances are rare and dealt with legally.
The question still comes up though: Why is disrespect or disobedience of a legislative body included in this definition? Courts are part of the judicial branch, and the judicial power of the United States is limited to trying cases and deciding controversies. Should someone fail to appear for a court related subpoena they are denying one party of their rights, either to confront witnesses against them or compel witnesses for them. Either way a legislative body is, by definition, exercising the legislative power of a government. Congress’ job is to create laws, not to enforce them. And since We the People hire them, why should we be legally punished if we disrespect or disobey anything other than a law that follows the Constitution?
Constitutional Issues with Subpoenas
Let’s start by looking at the constitutional issues with subpoenas in general. Subpoenas compel the attendance or production of evidence, but that’s a violation of the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
Compelling attendance is a seizure. No one, not law enforcement, not Congress, and not even a court, can seize you without a reasonable cause. Remember, a subpoena is not a warrant. The Warrant Clause of the Fourth Amendment states:
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A warrant establishes reasonableness for the seizure. It must be based on probable cause and supported by oath or affirmation. These are important because lying under oath or affirmation is itself the crime of perjury. However, there is no requirement of probable cause or legal jeopardy for issuing a subpoena. There is not even a requirement that there be a reasonable articulable cause to issue a subpoena. So a judge, attorney, or other duly authorized individual can issue a subpoena merely because they think someone’s evidence or testimony is valuable to them, without jeopardy of charges of criminal misconduct. Take for the example the case I wrote about Warrantless Searches, where the New Jersey Attorney General issued subpoenas for private information without any apparent legitimate cause. While there is legal action to suppress the subpoena, I don’t believe there is even a crime on the books that the AG could be accused of.
It’s not just unreasonable seizure. Remember, subpoenas are used to collect evidence without a warrant, making them not just unreasonable searches, but a violation of the Fifth Amendments Self-Witness Clause.
No person … shall be compelled in any criminal case to be a witness against himself
The language of a subpoena may compel a witness to provide evidence that would be a witness against them. All without any probable cause or testimony under oath that there was a good reason for it? These subpoenas also violate the Due Process clause of the Fifth Amendment.
No person shall … be deprived of life, liberty, or property, without due process of law;
Attorneys and courts claim the power to deprive people of both their liberty and the property they have in their bodies, documents, and other evidence, without any form of due process, which is defined as:
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
That means the whole process of issuing subpoenas is constitutionally questionable at best. So where does Congress get the authority to issue them?
Congressional Subpoenas
The only place Congress is authorized to compel anything is Article I, Section 5 of the Constitution.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
U.S. Constitution, Article I, Section 5, Clause 1
Congress can compel members to attend, but that’s it. So Congress could issue a subpoena to a member to compel their attendance of session, but not the general public. Contempt of Congress is defined as:
deliberate obstruction of the operation of the federal legislative branch
But what if the obstruction is of an operation the Congress is not legally authorized to perform? Remember, Congress is the federal legislative branch. Their job is to write laws, not to investigate crimes or to intimidate people into compliance. Congress can hold hearings, but they must be for some legitimate legislative purpose. Was Congress holding hearings to consider impeachment for former President Bill Clinton and his wife, former Secretary of State Hillary Clinton? Were they seeking information for some new legislation? Or was this just another political hit-job, abusing their office to attack political opponents? In other words, what was the legitimate legislative purpose for the hearing Congress wanted the Clintons to testify at? And what was their legitimate reason to compel their attendance?
Let’s assume that Congress had a legitimate legislative reason to seek the testimony of these two individuals. Where is the due process? Where is the probable cause or the reasonable suspicion? How is it “willful disobedience” when the subpoena appears illegitimate? How is it “disrespect for the authority” of Congress for one to exercise their rights? Rights, by the way, protected by the very Constitution that every member of Congress took an oath to support.
Conclusion
Subpoenas have their legal and legitimate place in our judicial system, not our legislative system. Courts can compel the attendance of witnesses, but to place legal punishment without a warrant is a violation of the Fourth and Fifth Amendments, because there is no due process or requirement of reasonableness attached to the subpoena.
Could the process for issuing subpoenas be brought into compliance with the Constitution of the United States? Sure. Require some documentation of the reasonableness of the subpoena. In my case, a simple statement that I was being called to be a witness either for or against the accused. Under the Sixth Amendment, that would make the subpoena reasonable. Also removing the criminal “contempt of court” language, replacing it with using the language of the subpoena as evidence of probable cause for a warrant. That way a judge should, at least, review the subpoena to make sure it didn’t violate due process of law. Lastly, since Congress is the legislative branch, not the judicial, any subpoena they issue should request attendance, not compel. Unlike courts, which have a duty under the Sixth Amendment to provide witnesses, Congress has no such power to deprive people of their liberty and property without due process of law. If they wish to compel attendance or the production of evidence, they need a warrant. The executive branch, which includes law enforcement power, needs to provide at least reasonable articulable suspicion before they can detain an individual. Shouldn’t Congress be held to the same standard?