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How do Congressional subpoenas work?
Tuscaloosa News
Medill News Service
April 29, 2007

WASHINGTON - You really don't want to find one of these sitting on your desk when you come back from lunch. Congressional Democrats approved new subpoenas Wednesday for current and former Bush administration officials, in-cluding Secretary of State Condoleezza Rice and a onetime aide to White House adviser Karl Rove. Since January, Congress has issued about two dozen of these. Republicans lambasted the subpoenas, accusing Democrats of starting a "witch hunt."

Here's a look at how a congressional subpoena works.

What's a subpoena?

A subpoena is a legal document used to require a person to provide sworn testimony or documents. It's frequently used in courts to gain evidence for criminal or civil proceedings.

Because Congress has oversight powers, it also can legally compel a person to provide documents or appear before a panel for a hearing.

Who can give out the subpoenas?

Congressional committees can vote to approve a subpoena for documents or witnesses. Beyond that, each committee has different rules. Some require full committee votes, but others allow the chairman to issue a subpoena without a vote of members.

This is one reason committee chairmanships are coveted positions on Capitol Hill. And all of the chairmen are members of the majority party. It's not uncommon for minority members to accuse the other side of using subpoenas for political gain.

In the mid-1990s, Democrats frequently complained about subpoenas the Republican Congress used to gain testimony from the Clinton White House. On Wednesday, Republicans, now in the minority, used that same argument, accusing Democrats of launching a "fishing expedition" to harass the current administration.

What happens when someone receives a congressional subpoena?

The subpoena will list when and where the person is expected to appear.

There are only a few options for appealing. Since 1975, federal courts have refused to invalidate congressional subpoenas, since such issues are considered "political questions" rather than judicial ones.

But there are two potential outs. An individual can invoke his Fifth Amendment right against self-incrimination. In response, the committee could grant immunity to an individual, meaning the witness would not face charges for any criminal activities he admits to during testimony. The witness has to comply with the subpoena or face a contempt charge.

Monica Goodling, an aide to Attorney General Alberto Gonzales who was subpoenaed to testify on the U.S. attorney firings, took the Fifth last month. On Wednesday, the Senate Judiciary committee voted to offer Goodling immunity. Goodling, who has resigned from the A.G.'s office, is scheduled to appear on May 10.

The second option only works for White House officials. They sometimes claim "executive privilege," a concept based on the separation of powers. The doctrine suggests that presidents need to receive honest advice from aides without the fear of being hauled before Congress for an explanation. Rice invoked this privilege Thursday in disregarding a Senate committee subpoena.

What if they don't show up?

If a witness refuses to appear before Congress, he can be held in contempt of Congress. A scorned House or Senate committee could approve a contempt charge, send it along to the full chamber and eventually to the U.S. attorney for prosecution. If the recalcitrant witness is found guilty, he can be fined or sentenced to up to 12 months in jail.

Since 1975, about 12 people have been held in contempt of Congress. Only one of those went to trial; Environmental Protection Agency official Rita Lavelle was found not guilty on the contempt charge.

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