The Justice Department and the House of Representatives General Counsel's Office are feuding over a subpoena that DOJ issued last month that seeks to compel the testimony of the chief counsel of the Senate Ethics Committee.
DOJ's Public Integrity Section gave House General Counsel Irvin Nathan an opportunity to nominate a witness to testify at a pretrial hearing June 14 in Washington federal district court. Nathan’s office declined the invitation. DOJ went ahead and issued a subpoena to John Sassaman, chief counsel and staff director to the Senate Ethics Committee.
Sassaman served from July 2001 to February 2008 as counsel, and later as senior counsel, to the House Ethics Committee. DOJ issued a subpoena to Sassaman on May 17 to compel him to testify at a hearing in the government’s case against Fraser Verrusio, a former policy director of the House Committee on Transportation and Infrastructure. Verrusio was charged in March 2009 with conspiracy, accepting an illegal gratuity and making a false statement.
Earlier this week, lawyers for Sassaman filed court papers in the U.S. District Court for the District of Columbia urging a judge to quash the Justice Department’s subpoena on the grounds that it seeks to compel testimony that is privileged under the speech or debate clause.
The privilege is “designed to allow the legislative branch to fulfill constitutional responsibilities independently and free from outside interference or questioning,” House assistant counsel John Filamor wrote in court papers June 8. The speech or debate clause is most often invoked by members of Congress to block requests for testimony that would delve into legislative activity—including drafting legislation and conducting hearings on proposed legislation.
The House Ethics Committee does not frequently engage in “legislative activity,” Filamor said in court papers. But the committee does participate in proceedings that the Constitution “places within the jurisdiction of either House.”
To support his motion to quash, Filamor points to a 2002 decision in Washington federal district court where then-Chief Judge Thomas Hogan quashed a subpoena seeking testimony from several members of Congress.
Filamor said the House could have decided not to assert the speech or debate privilege. “The Committee, however, has not elected to do that in this case,” he said in court papers. Filamor did not elaborate.
The Justice Department has not filed court papers responding to Filamor's motion to quash the subpoena which was issued by Public Integrity Section trial attorneys M. Kendall Day and Peter Sprung. The hearing Monday is before Judge Richard Roberts.
Filamor and Day were not immediately be reached for comment this morning on the subpoena.
On April 10, Day sent a letter to Filamor asking the House General Counse’s Office “nominate a witness to testify” at a June 14 pretrial hearing. Day specifically sought a person who had worked in the House Ethics Committee in April 2004.
Day said in the letter that the nominee would potentially testify about the substance of a House financial disclosure reports—what it is, who is required to file it and what information is supposed to be disclosed. Also, Day said the person could be called on to “aid in establishing the materiality of the false statements contained” Verrusio’s financial disclosure report.
“The Committee decided against nominating such a witness,” Filamor wrote in court papers this week. “The Justice Department subsequently decided itself to nominate, and ultimately subpoena, Mr. Sassaman for this purpose.”
A lawyer for Verrusio, Katten Muchin Rosenman partner Joshua Berman, was not immediately reached for comment this morning.