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16 May 2007

The deadline for this Alberto Gonzales subpoena was yesterday. Can anyone find out what happened? I can't find anything.
I don't know what happened, but even in the federal courts, failure to respond to subpoena by the deadline rarely results in any immediate action. The party issuing the subpoena will now have to move the court for some sort of enforcement.
posted by crush-onastick 16 May | 12:06
Senate Committee to Gonzales: AHEM

Leahy and Specter sent a nastygram and set a new deadline for Friday at 10 a.m.

posted by Otis 16 May | 12:25
That is the best nastygram ever. It makes me want to hug and kiss Leahy and Specter.

And kissing Arlen Specter is usually not very high on my priority list.
posted by brina 16 May | 12:37
tyvm! It's a shame that they're not enforcing it right now though. How is anyone supposed to take them seriously if they don't?
posted by Pretty_Generic 16 May | 12:42
Hrmph. All bark and no bite.
posted by CitrusFreak12 16 May | 13:20
"If the Justice Department does not respond to the subpoena, the senators ask that they at least explain why they're not responding"

Nice loophole.
posted by mischief 16 May | 13:28
I'm not familiar with all the ins and outs of the American system, but I think it's non-trivial to force Gonzales to comply with the subpoena. I gather from Wikipedia that the Committee has to call for a vote in the Senate, and if that vote passes then the "U.S. Attorney" must empanel a Grand Jury. That Jury can then convict the person of Contempt of Congress, and sentence them to 1-12 months of imprisonment and a $100-1000 fine. Obviously that's going to be a very slow process.

I'm not sure who the Wikipedia article is referring to when it mentions "the US Attorney", since there are lots of people called US Attorneys. Perhaps it means the Attorney-General - but that would result in the absurd situation of Gonzales empanelling a Grand Jury to judge himself.
posted by matthewr 16 May | 13:56
I think it's the US Attorney for DC
posted by Pretty_Generic 16 May | 14:07
Now, of course, in this case, we aren't dealing with courts and litigation, but Congress. But the practical barriers to enforcement and compliance with subpoenas on their drop-dead date remain the same.

As a purely practical administrative matter, the courts simply can't enforce orders the day of ordered compliance. Their schedules don't permit it; older cases take precedence; emergency motions in criminal matter take precedence; the attorneys have matters in other courtrooms from which they cannot permissibly be absent. The solution "well, you have a deadline of May 16, so you can't schedule anything else that day" isn't a solution because neither judges nor firms ever have only a single matter pending and no judge will accept a "your honor, i have to keep May 16 ABSOLUTELY CLEAR just in case i have to move to enforce X order" as a reason to alter the schedule he is offering.

As a strictly civil rights matter, too, when a person doesn't comply with a civil court order, you can't just go throwing them immediately into jail. As a thorny, why-attorneys-bill-at-hundreds-of-dollars-an-hour matter, there are at least a dozen legitimate reasons that a subpoena can't be complied with within time and hundreds of twisty lawyers-are-scumbag reasons that a subpoena can't be complied with in time.

The requirement that parties ask for a "date certain" that compliance will happen or an explanation why documents cannot be produced is not a loophole; it's civil procedure. Not that it can't be exploited and not that it isn't. But the alternative that an explanation for noncompliance be offered in lieu of compliance is a necessary protective measure.

There are legitimate reasons that a subpoena cannot be complied with by a deadline. Say the subpoena gives you 30 days to produce responsive documents. Say your responsive documents include a modest 20,000 pages of email. Someone has to check those documents for confidential information, material which may not be produced because it is subject to attorney-client privilege (or, when dealing with the government national security issues. and no absolutes, people, sometimes something really does need to be kept secret), someone has to make sure you're not producing Susie Q Secretary's emails setting up the birthday cupcake pool (because producing those sorts of voluminous irrelevant mail can subject you to sanctions for delaying the case). The time and manpower costs of preparing those 20,000 pages of email is a legitimate reason you cannot comply in time. There are other legitimate reasons as well which have to do with shielding innocent parties or shielding confidential sources. When that reporter went to jail for not revealing her sources, she wasn't thrown in jail the first time she refused to produce her sources; she was given time to demonstrate that she couldn't be compelled to give them up.

Litigation is complicated. Even when no-one is trying to make it untidy and slow it down, the sheer amount of information which has to move, and which is subject to strict rules of movement, and which can leave you (the attorney) wide-open to disbarment for an error in production that lets information move to the other side which should not mires all but the most simple of information exchanges.
posted by crush-onastick 16 May | 14:12
Thanks crush. It seems to me, though, that none of that could excuse Gonzales for not at least responding to the subpoena to say "Sorry, I can't do that because of xyz". Ignoring it entirely seems clearly in contempt.
posted by Pretty_Generic 16 May | 14:17
"I think it's the US Attorney for DC", but only if Gonzalez does not fire her or him first.
posted by mischief 16 May | 15:28
Sorry to be so long-winded, but I'm a complete procedure geek! I've also had this discussion a million times with bosses/associates who are aggressive in pursuing compliance but tend to offer completely inadequate justifications for noncompliance when we don't produce on schedule. There's a shocking lack of responsibility in my profession and an appalling lack of competence (but that's part of my "law schools need to admit fewer students" rant). Doesn't change the fact that there are reasons not to comply, just makes it harder to believe anyone is legitimately raising them.

I agree with you completely, P_G, that they can and should explain why they have been unable to comply (if they don't comply) and they've got about 15 more minutes to do so, according to my clock, assuming a 5:00pm close-of-business deadline.
posted by crush-onastick 16 May | 15:46
It's a quarter to 10 am on Friday for you, crush?
posted by mischief 16 May | 18:38
I just thought of something. What emails from Karl Rove would the Justice Department have? Wouldn't Rove's email be from the White House?
posted by mischief 16 May | 19:40
The answer to that is in the subpoena:

At the hearing last Thursday and again in a letter dated April 25, 2007, I asked you whether you would provide Karl Rove's e-mails in the possession of the Justice Department to the Committee without a subpoena. His lawyer stated publicly that these emails, many of which have been reported "lost", were turned over to U.S. Attorney Patrick Fitzgerald as part of the investigation into the leak of the identity of a covert CIA officer by officials in the Administration that led to the conviction of I. Lewis "Scooter" Libby.
posted by Otis 16 May | 20:30
hmm, I wouldn't be surprised then if they really are lost.
posted by mischief 17 May | 00:04
The answer, of course, is that they will not comply. Both as a matter of principle, and as a way to run out the clock. To the Bush administration, Congressional subpoenas are about as meaningful as John Q. Public sending a subpoena to 1600 Pennsylvania. The executive branch is more important than the legislative branch, because they're doing God's work the people's business in the form of commanding-in-chief the war on terror. The legislative branch is fussing about for votes and doesn't care about American security. That's what all those Yoo opinions were on about.

The even more cynical and machiavellian view is that the executive branch wants to force a decision in their favor using a friendly Supreme Court and thinks that this is a dandy way to get there. It's political brinksmanship. It's all very House of Cards.
posted by stilicho 17 May | 01:45
The executive branch is more important than the legislative branch, because they're doing God's work the people's business in the form of commanding-in-chief the war on terror.

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.
posted by Otis 17 May | 07:30
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