RENEE MONTAGNE, host:
So if the White House fights the subpoenas, how might the House of Representatives respond? We asked Stanley Brand that question. He's a former general counsel to the House, and now a defense attorney in Washington, D.C.
Mr. STANLEY BRAND (Attorney): There would be a vote in the committee to enforce the subpoenas and hold the witness or witnesses in contempt. That would then go to the full House for consideration on the floor and a vote. A simple majority vote would be required to approve those resolutions. And from there, assuming they are approved, they would be certified to the United States attorney for the District of Columbia for prosecution.
MONTAGNE: So it ends up in the court, so to speak, of the U.S. attorney?
Mr. BRAND: Well, it may or may not, because as you know, the U.S. attorney is an appointee of the executive branch. The last time this happened, when I was counsel to the House of Representatives in 1983, the U.S. attorney refused to present them to a grand jury. And instead he sued the House of Representatives, alleging that the subpoenas themselves were illegal.
MONTAGNE: But isn't what a lot of this about is that the U.S. attorney is supposed to be insulated somewhat from partisan politics?
Mr. BRAND: Well, a vote by the House to vindicate its subpoena power is hardly a political matter; it's a judicial matter. The question here is one of separation of powers. How does the Congress get its subpoenas enforced against executive branch officials? There's no easy answer to that, because we live in a system where the branches are independent of one another. And so the Congress would have to find someone with the constitutional authority and willingness to prosecute someone for contempt. That person may not be the United States attorney.
MONTAGNE: Okay. Just following this along: if the U.S. attorney for the District of Columbia were to get these subpoenas, and effectively asked to enforce them against top White House aides, and refused, where would it go then?
Mr. BRAND: It would go nowhere, because there is no other enforcement mechanism. The other enforcement mechanism available to the Congress, which it has used historically, is to arrest the contemptuous witness and bring them before the House to enforce the subpoenas in the well of the House. That hasn't happened in the last 75 or 80 years. And so it's highly unlikely that Congress would pursue that remedy.
MONTAGNE: If the White House and Congress do go back to the negotiating table, where is their room for compromise?
Mr. BRAND: First, I don't know how critical it is for these people to be under oath, and that seems to be a sticking point for the administration. I think for the House or the Senate, the need for a transcript of this testimony is key for them, and that's because they have heard a variety of responses to the reasons for these firings and they want to compare that testimony with other people who have testified.
MONTAGNE: From what you know so far, does it look to you like anyone has done anything illegal?
Mr. BRAND: Well, on the face of it there are several statutes implicated, including sitting members of Congress calling U.S. attorneys and probing them about their decisions in pending grand jury matters. There is a statute that makes it a crime to impede or obstruct a grand jury proceeding in any way. I'm not saying that that's what has occurred, but that is implicated here. There are other issues about whether people went in front of Congress and accurately described the basis for these decisions. So as always in these cases, it tends to be less about what happened and more about whether people told the truth or whether they obfuscated and obstructed.
MONTAGNE: Thank you very much for joining us.
Mr. BRAND: My pleasure.
MONTAGNE: Stanley Brand is a defense lawyer in Washington, D.C. He's a former general counsel to the House of Representative.
And you can here about the making of a Washington scandal at npr.org. Our senior Washington editor, Ron Elving, explains how firing U.S. attorneys ended up pushing other big news aside in his column Watching Washington.
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