November 21, 2017

Standoff Over a House Panel’s Subpoenas Raises Key Issue

The House Committee on Science, Space, and Technology has subpoenaed official investigative files of the attorneys general of New York and Massachusetts. The provocation for the subpoenas was that the attorneys general, presented with evidence that fossil fuel companies may have misled customers and investors, undertook investigations to determine if there were any violations of state law. For the moment, there is a standoff; the attorneys general are refusing to comply, and the congressional committee has not moved to enforce its subpoenas. The result from this standoff could well end up in our law books and history books. We start with congressional committees enjoying a presumption that their subpoenas are legitimate legislative business. Courts are thus reluctant to review direct challenges in the form of the usual motion to quash. As a matter of procedure, objecting recipients of congressional subpoenas refuse to comply, and then raise their arguments as defenses if the committee seeks enforcement of the subpoena.


Court proceedings about subpoenas tend to be tedious. What would make this interesting is an argument by the attorneys general that these committee subpoenas do not reflect a legitimate governmental effort but are issued on behalf of a private party, indeed on behalf of the very subject of the attorney general investigations; in other words, that the House committee is acting as the de facto agent of a private party, rather than in its governmental capacity. Unfortunately, history does reflect agencies of government serving as tools of industry. The journalist William Allen White described the Senate of the Gilded Age as a place where senators represented “principalities and powers in business. One senator … represents the Union Pacific Railway System; another the New York Central; still another the insurance interests of New York and New Jersey.” In our new, post-Citizens United, gilded age of political influence, a committee of Congress becoming the tool of a private interest is not unimaginable. If private hands were pulling the committee’s strings, ought not the recipients of the subpoenas have the right to defend themselves? And would it not be a valuable disinfectant within the process of government to allow reasonable inquiries, under the supervision of a court, to defend against such subpoenas? 

Put the shoe on the other foot. If attorneys general used powers of investigation to advantage a private enterprise — for instance, if an attorney general put lawyers and witnesses in a pending civil case into a grand jury, to help one of the litigating parties or just to bedevil the adversary — that would clearly be wrong. This argument would be similar. There is some evidentiary predicate to inquire whether these committee subpoenas are de facto private action for the fossil fuel industry. The committee has a record of subpoenas of climate scientists that could be seen as a pattern of harassment to help the fossil fuel industry. The Center for Responsive Politics shows committee Republicans have received considerable sums in fossil fuel campaign support over many years. And federal legislative interest in an ongoing state fraud investigation is unusual. If a judge found the subpoenas’ presumption of legitimacy properly at issue, the attorneys general presumably then ought to have discovery to settle the question. Were there, for instance, communications between industry lawyers and committee staff orchestrating the subpoenas? Ordinarily, a committee’s files are inviolable. Here, a court might side with the attorneys general. The Constitution’s most direct protection for members of Congress here is the speech and debate clause: “for any speech or debate in either House, they shall not be questioned in any other place.” This clause has been read generally to protect all legislative deliberations (but not press conferences, for instance, or private activity by legislators), and specifically to protect legislative committee investigations within “the sphere of legitimate legislative activity,” even if the legislative purpose is “unworthy.” The argument here would not be that the committee pursued an “unworthy purpose,” but that it pursued a purpose not its own. The constitutional principle of federalism requires “proper respect” to states’ constitutional functions, and what more proper and inherent state function is there than investigation and prosecution of violations of state law? If the committee is obstructing that state function on behalf of a private party, that raises obvious due process evils of government power unleashed under hidden private control.


Last, the attorneys general have a practical “rough justice” argument. Where one agency of government (a congressional committee) seeks to open the files of another agency of government (the attorney general of a state), it is at least an irony and likely an injustice for the one agency to keep its own files from the court while it seeks to open the files of the other. All of this makes for some fascinating legal and constitutional questions — much more interesting than the ordinary motion to quash!

By: Sheldon Whitehouse