The Subpoena Power Restored to Congress? Not Really.

By David Swanson

With the Senate So-Called Homeland So-Called Security Committee subpoenaing documents from the Justice Department and the Pentagon, has the power of subpoena been restored? I’m not so sure. And most people had no idea it was gone.

During 2007 and 2008 dozens of government officials were subpoenaed, right on up to the Vice President, who simply showed Congress their middle fingers and went on their merry way. During 2009 and thus far in 2010, as far as we know, and with a weird partial exception involving Karl Rove, none of those scofflaws have been resubpoenaed.

The subpoena power has thus been subsumed by the power of the political party. If the Congress belongs to the Democrats, but the president is a Republican, then subpoenas mean nothing and should just be laughed at.

Or if the Congress belongs to the Democrats and the president is a Democrat intent on protecting Republicans, then subpoenas should not be used at all. Thus, we’ve witnessed this year the Senate Judiciary Committee holding a hearing on torture lawyers John Yoo and Jay Bybee without asking them to appear, and the House Judiciary Committee holding no hearing at all once the humor of holding such hearings without witnesses became apparent.

But now subpoenas have been issued. What’s changed? Well, these are subpoenas going after activities that occured while a Democrat was president, and the committee chairman Joe Lieberman is not a Democrat. The public response from most of those who care about the rule of law and the separation of powers (most of whom have no idea that the power of subpoena has died) will view Lieberman’s action, if successful, as a petty victory for the forces of evil against the Prince of Peace. This can only hurt any effort to restore subpoena power.

But will the Justice Department enforce subpoenas against itself and the Pentagon? If not, the subpoena power will be rubbed further into the dirt. If so, will anyone propose that a positive precedent be found and that the DOJ be urged to enforce subpoenas — if issued — against all lawful recipients thereof, whether current government employees of not, whether open and arrogant and Republican war criminals or not, whether suspected of crimes the current president is continuing or not?

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