There is a little-known provision in House rules that requires both members and staff to notify the House if they receive a subpoena. This is done by a letter to the Speaker which is read in open session and then placed in the Congressional Record. On September 15, Jefferson wrote the following letter to Speaker Denny Hastert:
This is to notify you formally, pursuant to Rule VIII of the Rules of the House of Representatives, that I have been served with a grand jury subpoena for documents issued by the U.S. District Court for the Eastern District of Virginia.
I will make the determinations required by Rule VIII.
Jefferson’s letter was the standard form for such notifications; it is not all that unusual for House members or staff to receive subpoenas, and the usual procedure is to write a letter like Jefferson’s, which left open the question of whether the congressman would comply with the subpoena.
But some of Jefferson’s aides also received subpoenas, and their letters to the House were a little more revealing. Some of the subpoenas were for testimony, and the letters say that, after consulting with the House Counsel, the aides would comply with the subpoena. But other subpoenas were for documents, and–again after consulting with the House Counsel–the Jefferson aides refused to comply. On November 18, 2005, for example, Jefferson’s then-chief of staff, Nicole Venable, wrote this letter to the House:
This is to notify you formally, pursuant to Rule VIII of the Rules of the House of Representatives, that I have been served with a grand jury subpoena for documents issued by the U.S. District Court for the Eastern District of Virginia.
After consultation with the Office of General Counsel, I have determined that compliance with the subpoena is inconsistent with the precedents and privileges of the House.
Among its other duties, the House Office of General Counsel represents the staff of the House of Representatives. Its purpose is not to be the lawyer for any individual but to represent the interests of the House as an institution; House rules specify that “legal assistance and representation shall be provided without regard to political affiliation.” Venable’s letter, along with those from other Jefferson staffers, indicates that the House Counsel took the position that neither Jefferson nor his staff should be required to turn over the subpoenaed documents to the Justice Department. And that suggests that the months-long resistance in the corruption case, which most outside observers have attributed to Jefferson’s individual intransigence in the face of overwhelming evidence against him, was in fact backed by the House of Representatives itself.
Also, as NRO’s Kate O’Beirne first reported, the House Counsel’s office has copies of the subpoenaed documents, which it is keeping in the Counsel’s offices. Given that Jefferson’s staff consulted with the Counsel, and that the Counsel represents staff in such disputes, it is likely that the copies were made as part of the process of that legal representation. And it also suggests that this affair has been a standoff involving the House versus the Justice Department, as opposed to Rep. Jefferson versus the Justice Department, from the beginning.
One of the issues at the core of the dispute appears to be the demands for electronic records in the Justice Department’s subpoena. It is one thing to demand specific paper documents, and the subpoena has a long (but redacted) list of particular items to be seized. But it is another thing to take the entire hard drive from a computer, which will inevitably contain more information than just that listed by the subpoena. Defenders of the House position argue that the Justice Department clearly knew ahead of time that it would be seizing documents that were irrelevant to the Jefferson corruption investigation, and that those documents would be covered by the House’s speech-and-debate privilege. Why else would the Justice Department have devised the process by which a “filter team” would examine the documents and determine which ones were relevant to the investigation?
Given that, House officials did not believe it was appropriate for the executive branch to take upon itself the task of determining just how far the House’s speech-and-debate privilege did–and did not–extend. That job, House leaders felt, was the exclusive responsibility of the House itself. That position helps explain why the subpoena fight has been a House versus Justice Department–not a Jefferson versus Justice Department–fight from the beginning.
— Byron York, NR’s White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.