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An American Cyber-Column By Rich Galen
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MULLINGS

An American Cyber-Column

Subpoenas

Rich Galen

Friday October 15, 2021

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  • A couple of housekeeping items:

  • First, I had said I would turn off the automatic renewal function on PayPal, so you wouldn't be billed $30.

  • I didn't. Many of you have been.

  • If you want a refund - you will not hurt my feelings - just drop me an email to that effect and I'll take care of it over the next few days.

  • Second, you might have recognized that this edition of Mullings is a little late. I normally write on Thursdays, press the SEND button Thursday night with a Friday dateline.

  • Yesterday, October 14, was our - the Director of Standards & Practices and my - 49th anniversary. As it was not at all clear earlier this year that I would be around for this event, we decided to celebrate with a very nice dinner at The Palm Restaurant in downtown DC and it was too late to write last night when we got home.

  • We were joined in an arranged marriage as a diplomatic merger when we were both eight years old, so you can stop counting on your fingers.

  • Now, back to our story

  • Subpoena (via Merriam-Webster): A writ commanding a person designated in it to appear in court under a penalty for failure [to do so].

  • It is derived from the Middle English (again from M-W): from the Latin, a combination of sub "under" and poena, "penalty."

  • If, after 17 months, you are back in your office, you can be the smartest kid at the Keurig machine with stuff like this.

  • The January 6th Committee (Official Name: The U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol) has issued some 15 subpoenas to people who the Committee believe know stuff.

  • We've heard all about the writs served on the Trump inner circle: Steve Bannon, Chief of Staff Mark Meadows; his Deputy for Communications, Dan Scavino; and Kashyap Patel, the chief of staff to then-acting Secretary of Defense Christopher Miller.

  • But the Committee has also, according to USA Today, issued subpoenas to 11 other people who were, or might have been, involved with the actual planning and management of the rally leading up to the insurrection on January 6th.

  • According to Lawfare.com:
    The power of Congress to investigate and obtain information is very broad. While there is no express provision in the Constitution that addresses the investigative power, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.

  • If the Congress (or one of its committees) needs information, verbally, through demanded documents or both, issues a subpoena which is ignored by the recipient then that person is considered to be "in contempt" of Congress.

  • I know. I know. Other than certain multi-national corporations who don't pay their fair share of taxes, there are few organizations more contemptable than the U.S. Congress, but that's not what we're talking about here.

  • There was a time when a Congressional subpoena was a big deal and people who got them showed up with shined shoes and a clean hanky. Then came the Trump years when issuing a Congressional subpoena became a joke and defying a Congressional subpoena became a redundancy.

  • Hours of cable news programming were devoted to whether the subpoenas were legit or just more political theater; and what the Congress could/should do about it.

  • The answers were largely "yes" and "nothing."

  • If a person defies a Congressional subpoena, then the issuing entity - the committee - can go to the floor of the appropriate body (House or Senate) and ask that the person be held in contempt and that the matter be referred to the Department of Justice for criminal prosecution.

  • The Congress has other remedies, but they all lead to the same place: A federal court room.

  • Although far from a direct comparison, Wikipedia reminds us that "Susan McDougal served 18 months in prison for contempt of court for refusing to answer questions relating to Whitewater."

  • Will any of the Big Four end up in an orange jump suit? Probably not, but even if the penalty for defying a subpoena is not jail, it will cost each of them possibly hundreds of thousands of dollars in legal fees to contest the action.

  • "Make 'em spend it all" is the classic cry of an uphill political campaign and might be the basis for issuing subpoenas to individuals the Committee knows won't fully comply.

  • For some - if not most - of the 15 people under subpoena, the decision to comply or defy will rest, not on following Trump's thumb-your-nose path but will rest, instead, on the balances in their checking accounts.

  • See you next week.

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