Rep. Issa Denies Charges Of Abusing Subpoena Power

April 06, 2011 3:31 pm ET — Brian Powell

It's safe to say that the relationship between Rep. Darrell Issa (R-CA), the chairman of the House Oversight & Government Reform Committee, and the committee's ranking member, Rep. Elijah Cummings (D-MD), has been rocky. Cummings has argued that, among other procedural sins, Issa has been ducking standard committee practice by refusing to properly consult with Democrats before issuing subpoenas. Issa responded yesterday, making the tenuous claim that "every subpoena that has gone out has been with consultation with the ranking member."

From his interview with MSNBC's Andrea Mitchell:

MITCHELL: And when are you going to reach better agreements with Elijah Cummings, a frequent guest here who complains about not being included? That the Democrats on the committee, especially the ranking member, Congressman Cummings, has not been part of your approach. You've been using your subpoena power, but not including them.

ISSA: Well, that's certainly not true. Every subpoena that has gone out has been with consultation with the ranking member. The vast majority of these — actually, they have either been in two categories. They have been friendly subpoenas, meaning that the people like bank of America and others said that we want to give you the documents, but we would like to have a subpoena so we can't be sued by third parties and that's a situation like that. We also had a whistleblower who, quite frankly, we followed up with a subpoena to get it on the record.

The last subpoena that went out, for example, yes, the ranking member wasn't happy, but it followed up letters from both Senator Grassley and myself urging some fair discovery by the administration that has an obligation to deliver it, that it refused to deliver it.

So there is a line between consultation and simply giving a veto to the minority because the administration does not want to meet its obligation to deliver, if you will, evidence that it has.

Issa is either obfuscating the truth or there's a significant difference of opinion between Cummings and Issa about what constitutes "consultation."

Cummings has repeatedly slammed Issa for failing to "adequately consult" with committee Democrats before issuing "unilateral subpoenas." In a letter to Chairman Issa in late February, Cummings took issue with Issa's procedural opacity, writing:

Over the past eight days, you have issued three unilateral subpoenas, including one document subpoena to the Bank of America Corporation on behalf of Countrywide Financial, and two deposition subpoenas to employees at the Department of Homeland Security regarding the Department's policies and practices under the Freedom of lnformation Act (FOIA). Based on your public statements and the underlying facts, all three subpoenas appear unnecessary at this time and could have been avoided if you had adequately consulted with me and other Members of the Committee.

At the beginning of this Congress, I requested that you provide your assurance that you would obtain my concurrence prior to issuing a subpoena or that you would seek a vote of the Committee. As I pointed out, this has been the historical practice of all but one of your predecessors. You declined to provide that assurance.

Most recently, Cummings blasted Issa's decision to subpoena documents in spite of the Justice Department's concerns that the release of those documents could interfere with their active investigations. This is apparently the "last subpoena" to which Issa referred in his interview with Mitchll. Politico reported on Cummings' statement:

Rep. Elijah Cummings of Maryland, the ranking Democrat on the committee, also sent Issa a letter late Friday afternoon, claiming he was again not kept in the loop on the subponea — a frequent complaint from Democrats about Issa.

"Last issued a unilateral subpoena over the Department's objection, over my objection, and without any knowledge or debate by other Members of our Committee," Cummings wrote to Issa. "You took this step without meeting with the Department to determine whether an accommodation might have satisfied both the Committee's legitimate interest in conducting appropriate oversight and the Department's legitimate interest in achieving successful prosecutions."

It is standard operating procedure for Congressional committees to back off investigations if federal law enforcement agencies are conducting criminal investigations.

That isn't cutting it for Issa's staff.

Despite his past assurances that subpoena powers would not be used to conduct a "witch hunt" against the Obama administration, he seems to be adopting the Oversight Committee practices of the mid-90s Clinton impeachment era — such as unilateral subpoenas — that Cummings cautioned against back in January.