Sunday, August 24, 2014

The Smoking Gun, The Spent Rounds, The Shooter, And the Subpoena...

Darrell Issa Took His Subpoena Pen Out Today.  This time it's for White House Chief of Staff, Denis McDonough, who, following in the footsteps of just about everyone else in the Obama Administration, has yet to answer questions from the Oversight Committee about the use of tax payer funds to pay for the Administration's election campaign efforts.

While the Administration has been claiming no fire, no smoke, and no mirrors, the Committee presented a smoking gun, the spent rounds, and a shooter.  To wit:  a recording of a message left on the phone of a Labor Department subordinate pressuring the employee to contribute to President Obama's re-election campaign.

To quote the Committee, the recording says:

"...“Hi—this is Hilda Solis calling, um, just calling you off-the-record here—Wanted to ask you if you could, um, help us get folks organized to come to a fundraiser that we’re doing for Organizing for America for Obama campaign on Friday at La Fonda at 6 p.m. Steven Smith, an attorney, and his staff are helping us [inaudible]. There are a lot of folks that we know that are coming but wanted to ask you if you might help contribute or get other folks to help out. I would encourage you to call this number, [inaudible]–that’s his assistant– at [phone number] and you can call [the attorney] yourself who’s a good friend, an attorney, good friend of mine, at [phone number]. And it’s for a Friday event at La Fonda [inaudible] we’re just trying to raise money to show that we have support here in [inaudible].” You can listen to that recording HERE...

But the Administration persists in not answering any questions about this alleged illegality.  In fact, back in July, Counsel to the President, W. Neil Eggleston claimed that White House political office Director, David Simas, was "...immune from congressional compulsion to testify on matters relating to his official duties..." and would not appear to answer congressional investigators' questions at a hearing.

Issa was understandably not impressed.

Here's one of Issa's retorts from a letter to Counsel to the President, W. Neil Eggleston:

"...The question of whether Mr. Simas is immune from being compelled to testify before Congress, while certainly an 'issue[] of extraordinary constitutional significance,' already has been resolved by the federal judiciary:  He is not immune.  In Committee on the Judiciary, U.S. House of Representatives V. Miers, , the United States District Court for the District of Columbia issued a 93-page opinion that emphatically rejected the legal arguments of the George W. Bush White House--identical to the argument put forth by the White House with respect to Mr. Simas--that senior White House aides are immune from congressional subpoenas.  In that case, the House Judiciary Committee, chaired by Congressman John Conyers, sued to compel former Counsel to the President Harriet Miers to testify before the Committee.  The Court made absolutely clear that senior Presidential advisors 'do not have absolute immunity from compelled congressional process,' and it went on...[to]... say that subpoenaed advisors are legally required to appear and testify in response to a congressional committee's subpoena, though they remain free to invoke legitimate testimonial privileges in response to specific questions. When the decision was published, Republicans and Democrats alike hailed it as a 'victory' for Congress, and said it 'should send a clear signal to the Bush administration that it must cooperate fully with Congress..."

Issa then asserts that the Obama administration, in order to justify its decision to defy a congressional subpoena:

"...the White House has trotted out the identical arguments that the Bush White House unsuccessfully used to claim Ms. Miers was immune from being compelled to testify.  Those arguments were rejected both by the Democratically-controlled House Judiciary Committee, and by the District Court in MIERS.  The MIERS Court expressly noted that the 'Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context.'  The same thing is true today..."

According to Issa, the Administration's responses do not cite any case law to support the notion that the President's advisors are immune from being compelled to testify before Congress, "because there is none."

Issa notes that the Office of Legal Counsel expressly acknowledged that its opinion was not based on any Supreme Court precedent because no court had yet considered "...whether Congress may secure the testimony of an immediate presidential adviser through compulsory process..."

Issa asserts that "...the Miers opinion is the controlling authority on the matter of whether the President's advisers can be subpoenaed..."  And he tells W. Neil Eggleston:

"...Unable to cite any case law to the contrary, OLC merely states that it 'respectfully disagree[s] with the MIERS court's analysis and conclusion, and adhere[s] to the Executive Branch's longstanding view that the President's immediate advisers have absolute immunity from congressional compulsion to testify..."

Issa also cites a staff report released by then Committee Chairman Henry Waxman on the White House Office of Political Affairs, after a nearly two year investigation, in which he advised that "American taxpayers should not pay the salaries of White House officials when they are engaged in helping members of the President's political party."

Of course, that was when the proverbial shoe was on the other foot, and the Democrats had been investigating a Republican administration.

Issa points out further that under Obama, the Office of Political Affairs remained open for two years, "until he closed it in January 2011, just days before the Office of Special Counsel (OSC) released a report warning against using an offical government office as a partisan political operation."

Chairman Issa says to Eggleston that it should have come as no surprise to the White House that the Oversight Committee had questions, "when the President re-opened the Office of Political Affairs under a different name in January 2014, especially in in light of the way that the office was described in the press."

Issa cites the New York Times report which stated that the White House re-opened the office "...because it 'seems eager to send a new message: that it is serious about defending Democratic control of the Senate and taking back the House from Republicans,'  and to 'focus attention on candidate needs, including fund-raising.'..."

Issa also cites POLITICO:  "...the White House advertised Mr. Simas 'as a one-stop shop for all things midterms...he'll be the point of contact on requests for presidential visits, fundraiser appearances and sign-offs on direct mail and email blasts..."

He cites also the Washington Post: "...Mr. Simas takes part in biweekly strategy meetings with the Democratic Senatorial Campaign Committee's executive director and Senate Majority Leader Harry Reid's chief of staff for the purpose of aligning the legislative calendar with the Administration's efforts to help Senators facing difficult reelections..."

So today Issa is knocking on the President's doors with a subpoena for the White House Chief of Staff.   Unfortunately, a subpoena is not a warrant, and this is frustrating to Issa, who states:

 “On July 28, 2014, our staffs met at the White House to discuss a way forward. My staff made a number of proposals that would allow the Committee to get the information we need. For instance, to accommodate the White House’s stated concerns about having Mr. Simas testify publicly, my staff proposed that the Committee question Mr. Simas in a deposition setting. I also made that request in a letter dated July 24, 2014. To accommodate the White House’s stated concerns about producing documents that implicate the presidential communications privilege, my staff proposed a more narrow production of documents that would exclude communications between the President and his advisers. Indeed, I narrowed my original document request in a letter dated August 12, 2014... “The White House has acknowledged that the dialogue has been constructive and that progress has been made. Unfortunately, these characterizations represent the total sum of what the White House has provided in response to my good faith proposals to address the White House’s separation of powers concerns. The White House has not produced any additional documents, nor has the White House stated if or when the Committee will hear from Mr. Simas. In short, the accommodations process, which the White House itself characterized as constructive, has netted the Committee absolutely nothing.”

Issa says that he is left with no alternative but to issue a subpoena (to McDonough) to compel him to produce "the narrow set of documents that I requested on August 12, 2014."

An Oversight Committee statement today lists the items requested by Issa:
"...The subpoena requires that the White House provide the following: 
1.      All documents and communications referring or relating to, or developed as part of, opening the White House Office of Political Strategy and Outreach (OPSO), including, but not limited to, any document or communication referring or relating to:
a.      The purpose of OPSO;
b.      OPSO’s predecessor, the White House Office of Political Affairs, which closed in January 2011;
c.      Policies or guidelines for approval of travel;
d.      Classification of travel as political, official, or both; and,
e.      Criteria and processes for approval and classification determinations.
2.      All documents and communications between and among OPSO employees referring or relating to President Obama’s June 26-27, 2014 trip to Minnesota and President Obama’s July 8-9, 2014 trip to Colorado, including, but not limited to, documents and communications referring or relating to the decision to add official events to the President’s itinerary. 
3.      All documents and communications to or from OPSO employees referring or relating to travel and/or political events involving Cabinet officials..."
The statement notes, in conclusion, that:

"...In July, the Committee approved a resolution to reject a White House assertion of “absolute immunity” for White House Office of Political Strategy and Outreach Director David Simas, who has failed to appear before the Committee twice..."

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