John Kerry. (Photo: Diego M. Radzinschi/NLJ.)
Administration lawyers can’t turn to the federal courts to quash a highly unusual subpoena for Secretary of State John Kerry to testify about documents related to the Sept. 11, 2012, attack on a U.S. consular facility in Benghazi, Libya, legal experts on congressional investigations say.
Courts would be reluctant to step in the middle of a dispute between the State Department and Rep. Darrell Issa, R-Calif., the chairman of the House Committee on Oversight and Government Relations, said Stephen Ryan, head of the government strategies practice at McDermott Will & Emery.
Kerry will either have to testify, negotiate to have another State Department official testify in his place, or not comply—which risks the possibility of House Republicans pushing for a contempt of Congress charge, the lawyers say.
“There’s no way to quash a subpoena like that,” said Ryan, a former general counsel to the Senate Committee on Governmental Affairs. “This is a fight between two branches.”
Issa, who has held four public hearings on the Benghazi attack, announced the subpoena in a letter Friday. He wants to compel Kerry to testify during a public hearing on May 21 about documents the State Department has withheld, delayed or is otherwise not given to the committee related to the congressional investigation into the attack.
In the letter, Issa says that the department has withheld entirely some categories of documents without asserting a privilege for doing so. He also says new documents the State Department released to the committee—but only under a Freedom of Information lawsuit—appear “to offer conclusive evidence that your agency attempted to illegally withhold subpoenaed material.”
State Department spokeswoman Marie Harf said during a briefing Friday that Issa was “playing politics” and that the subpoena was issued before Kerry was even invited to testify. “We just received the request, we’re reviewing it,” Harf said. “We were surprised about this, given that we were cooperating.”
Ryan said that, normally, comity between the branches of government would preclude issuing a subpoena to a cabinet official unless that official had absolutely refused to testify. He called it “a very dramatic act” and “a significant escalation” in the relationship between Congress and the administration.
A demand for document production is “normally worked out through diplomacy,” Ryan said.
Robert Weiner, a partner at Arnold & Porter and a former White House senior counsel and associate deputy attorney general, said the Kerry subpoena is “probably not the most productive way to get at” the documents.
“What’s Kerry going to know about this?” Weiner said. “I think he probably doesn’t sit there and decide, ‘We’re going to produce this one and we’re not going to produce this one.’ “
Weiner said he suspects Issa is more interested in the fight than in the information, but that Kerry might appear if the committee insisted, even though the secretary of state is doing other things that are important.
Still, if Kerry says no, the House could push for contempt-of-Congress charges—as in 2012, when Republicans, on a push from Issa, voted for contempt charges against Attorney General Eric Holder Jr. in connection with documents related to the U.S. Department of Justice’s botched Fast and Furious gun-trafficking sting.
The oversight committee sued the attorney general over access to internal DOJ documents over which the White House has asserted executive privilege. A federal trial judge in Washington refused to throw out the lawsuit. A hearing in the case is set for May 15.