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The Power Of A Subpoena


The House moves forward on impeachment, but some subpoenas are still in the air. Energy Secretary Rick Perry declined to provide documents, as did Defense Secretary Mark Esper, Vice President Pence, Chief of Staff Mick Mulvaney and Secretary of State Mike Pompeo. In fact, President Trump has often stiffed the U.S. Congress when it sought documents in testimony.

What power does a subpoena have anymore? Kirsten Carlson teaches law and political science at Wayne State University. She joins us now. Thanks so much for being with us.

KIRSTEN CARLSON: Oh, thank you for inviting me.

SIMON: Has this Congress made effective use of its subpoena powers in your judgment?

CARLSON: I think they're doing the best they can. You know, the subpoena power is an important part of Congress's investigative power. It's also sort of a last resort. Congressional committees usually try to get the information willingly from the executive branch. And historically, presidents have been willing to negotiate. And so they haven't had to use the subpoena power as heavily as this Congress has had to.

We have a president that's on record saying, he's not going to negotiate with Congress, so Congress doesn't have another option. They've got to subpoena the documents and information that they want, and they've got to work it through the courts to get them enforced.

SIMON: Well, help us understand that because federal judges have often been reluctant to rule. Instead, they hope the Congress and the executive branch can work something out, don't they? But what happens when nothing's worked out?

CARLSON: Absolutely. The courts have said for several decades that they would much rather for the executive branch and Congress to work it out. But they also have been open and honest that they have the power of judicial review and they will step in if they have to.

SIMON: Did Congress or some people in Congress in some of the committees perhaps make an error by going ahead with the proceedings and not waiting for court judgments, as was suggested by Jonathan Turley, for example?

CARLSON: I think that's a hard question to answer. I think Congress is concerned about whether there is an abuse of power here. I think there's strong arguments that maybe they should have waited. But I think there's also reason to be concerned that - how long do you wait? And with the election cycle, they had to make a judgment call about whether they wanted to wait or not.

SIMON: I'm wondering what that does to the precedent of the law, though. I mean, that's a political argument, understandably, but what does that do about precedent?

CARLSON: Well, it depends on how badly Congress wants it. The members of Congress want a precedent here.

SIMON: What do you mean?

CARLSON: Well, anytime you ask a court to make a decision, it may not come out in your favor. And while the law here suggests that there is not absolute executive privilege in the face of a congressional subpoena, all we have is district court opinions, which are nonbinding in this area.

SIMON: Yeah.

CARLSON: The closest analogy we have is the United States v. Nixon which suggests that the congressional subpoena should stand. But until the Supreme Court says that, we don't know.

I think the most significant case in terms of the president's powers of executive privilege in response to a congressional subpoena is the McGahn case.

SIMON: The McGahn case is separate from the impeachment inquiry. It stems from the Mueller investigation, doesn't it?

CARLSON: Yes. If that case goes up to the Supreme Court, we will have binding precedent in this area.

SIMON: There's a hearing in the Don McGahn case, I gather, that's set for January.

CARLSON: Yes, there is.

SIMON: How long could the process take?

CARLSON: You know, I think that's a great question. I think it depends on how fast the circuit court moves. And then it's a question of whether it gets appealed up to the Supreme Court and the Supreme Court takes it. I mean, it also depends - I mean, the Supreme Court has the power to expedite. That's what they did in Bush v. Gore. And so you could have an opinion sooner. But yeah, it will probably still take several months.

SIMON: They also have the power not to expedite, too, don't they?

CARLSON: Yes, they have the power not to grant cert in the case at all.

SIMON: Kirsten Carlson is a law professor at Wayne State University. Thanks so much for being with us.

CARLSON: Thank you. Transcript provided by NPR, Copyright NPR.