Daily Archives: 1 December 2023

Subpoena Fight

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The House Oversight Committee has subpoenaed Hunter Biden to be deposed in a closed-door hearing. Biden has responded, through his lawyer, that he’ll be there, but only if the hearing is public. Supposedly, this sets up a subpoena fight.

It needn’t, and Oversight Chairman James Comer (R, KY), has said so, although he has offered, unnecessarily IMNSHO, a compromise to have Biden testify in an open Oversight hearing after he’s sat for the close-door deposition.

If the impasse is not broken, Congress can move to enforce its subpoena in several ways. Republicans can hold Biden in contempt or file a civil suit to compel him to testify. These options require the Department of Justice or the courts to enforce, respectively. But, if Republicans want Hunter Biden’s testimony soon, investigators may have to acquiesce to his lawyer’s demands for a public hearing or awaken a long dormant Congressional power to compel the younger Biden to appear.

The correct move is a) and d) above. If Biden is a no-show, he should be held in criminal contempt and referred to DoJ for prosecution (even though AG Merrick Garland is unlikely to do so). In parallel, the House should exercise its authority to go get Biden and compel his (closed-door) testimony.

That fourth option is the House’s and Senate’s—”the Legislature’s”—Inherent Contempt Power. This power permits each house to arrest and detain an individual who is found to be obstructing Constitutionally defined duties and responsibilities of the legislature. The latest use of this power to compel testimony was the Senate’s 1934 Jurney v MacCracken case. William MacCracken at the time was refusing to comply with a Senate subpoena, the Senate sent its Sergeant at Arms to arrest him and present him before the Senate for a contempt trial, and on conviction, he was held in jail in the Senate’s custody (not DoJ’s or any other police facility’s) until he cleared his contempt by testifying as subpoenaed. Jurney was the Supreme Court upholding the Legislature’s—the Senate’s in that case—authority to exactly what it did.

So it should be with Biden in the House. The matter could move apace, with the long pole in this tent simply being finding Biden in the first place and transporting him to the House floor for trial.

Regarding Oversight’s subpoena in particular, there’s nothing about which to fight, or negotiate, or even discuss. The subpoena has been issued for a closed door deposition on a particular date; the only thing for Hunter Biden to do is to appear for the deposition on the appointed date. Or suffer the ignominy of arrest, House trial for contempt, and then jail in House custody until he testifies.

Full stop.

Convenience and the FBI

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Stewart Whitson, late of the FBI and currently Foundation for Government Accountability Legal Director, decried in his Tuesday Wall Street Journal op-ed, a Consumer Financial Protection Bureau effort to completely eliminate the ability of credit-reporting companies to sell credit-header data to law enforcement agencies, including to the FBI. Those header data include a variety of identifying material but, as Whitson was careful to emphasize, no financial information.

This, actually, is one of the few things the CFPB would get right were it to follow through.

In support of his plaint, Whitson related an 8-year-old incident in which he and a partner were conducting surveillance on a suspect and observing his contact with a third individual. Whitson bragged about being able to use credit-header data—but no financial data, mind you—to contact that third individual, arrange a meeting, and through that, foil the suspect’s planned terrorist attack.

Without the credit-header data, we might not have been able to contact the occupant for a while, giving [the suspect] more time to carry out his attack.

Whitson bragged about FBI success with such purchases and then put his disingenuous question.

I worked on hundreds of terrorism-related investigations at the FBI, all of which relied on credit-header data. Why doesn’t the CFPB want law enforcement to have quick access to this information?

Perhaps because the purchases are, at bottom, violations of our Constitution’s inconvenient 4th Amendment, regardless of their convenient-to-government speed.

How inconvenient it is, after all, to follow the Constitution’s requirement for warrants before searches occur. That the FBI got lucky—or even that purchasing personally identifying data (the lack of financial data being a cynically offered red herring here) materially helped—in no way legitimizes the FBI’s bypassing Constitutional requirements.

Get the warrants. If it often takes too long to get them, and that’s a legitimate beef, work on streamlining the process through the political branches of our government: the House and Senate. The Executive Branch does not get to skip the hard work or usurp political branch authorities.

Not even when its FBI claims that anxious and enthusiastic mothers at school boards are akin to domestic terrorists or that traditional Catholics are behaving suspiciously.