Senate Judiciary Committee Chairman Patrick Leahy has formally determined that Karl Rove, John Bolten, former White House political director Sara Taylor and her deputy, J. Scott Jennings, are in violation of the Senate subpoenas and must comply “immediately” or face legal consequences.
Leahy stated: “I hereby rule that those claims are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation.” This ruling would allow the matter to go to the Senate.Notably, Leahy found that Bush was not involved in the firing of U.S. Attorneys. This helped undermine the claim of executive privilege.
The early congresses were more likely to use contempt power. They did so in cases like Robert Randall in 1795 who was accused of bribing a member and, in 1800, with newspaper editor William Duane who refused to answer questions before the Senate.
The Supreme Court has held congressional committees must satisfy three conditions to have enforceable subpoenas. First, the investigation must be properly authorized by Congress. Second, it must have a “a valid legislative purpose;” and third, the specific inquiries must be relevant to the subject matter area under investigation. Those conditions appear met here.
If these conditions are met the courts tend to defer to Congress. Thus, the Court in Eastland v. United States Servicemen said that such subpoena fall under the powerful Speech and Debate clause, which affords “an absolute bar to judicial interference.”
Thus, the Senate appears on good footing for a court fight. The question is not legal but political support.