Rep. Jason Chaffetz for more than a year has led the charge in pushing the Secret Service to clean up its act, but his latest battle with the agency may be a losing one, according to attorneys familiar with federal workers’ legal protections.
Last week, Chaffetz, who chairs the House Oversight and Government Reform Committee, issued two subpoenas to members of the Secret Service in an attempt to compel them to testify to the panel behind closed doors.
The Utah Republican was trying to get to the bottom of an incident involving allegations that two senior-level agents drove through and disrupted an active suspicious package investigation on White House grounds March 3 after a night of drinking.
Secret Service Director Joseph Clancy had testified during a March Congressional hearing that he would allow testimony from at least two Secret Service members who were on hand that night and have direct information about what took place.
But after negotiations between the Oversight panel and the Department of Homeland Security over their testimony fell apart, Chaffetz issued subpoenas to two Secret Service members and expressed deep disappointment that Homeland Security was refusing to allow them to testify voluntarily.
Chaffetz was instrumental in uncovering serious allegations of a culture of cover-up at the Secret Service — accusations that supervisors sometimes papered over the misconduct of agents and officers and doled out discipline unevenly, leading to morale problems.
Just two months into Chaffetz’s chairmanship of the Oversight panel, the March 4 incident at the Secret Service exploded into headlines and he once again vowed to get answers and to try to put a stop to more embarrassing agency misconduct cases.
But in issuing the subpoenas, Chaffetz may have taken his mission a bridge too far.
Since the beginning of the year, Chaffetz has tried to begin a new chapter for the Oversight Committee, which was beset by intense partisan rancor during Rep. Darrell Issa’s four-year tenure as chairman.
When it came to the Secret Service and several other issues before the committee, Chaffetz for 2 1/2 months issued most panel statements jointly with the Democratic ranking member, Elijah Cummings of Maryland.
But when the Secret Service subpoenas were issued last week, Cummings was notably absent from the statement.
Cummings now characterizes Chaffetz’s decision to issue them as “unfortunate,” a result of “inadequate communication.”
“We all have the best interests of the president and his family in mind, so it is disappointing that inadequate communication led to what I believe are unnecessary subpoenas in this case,” Cummings told the Washington Examiner in a statement. “I sincerely believe the Department and the Committee can both fulfill their missions by making reasonable accommodations, and I hope we can engage in a constructive dialogue going forward.”
DHS Secretary Jeh Johnson, an accomplished lawyer who served as general counsel of the Department of Defense from 2009-12, was far harsher.
Pushing back against the subpoenas, Johnson called them “unprecedented” and “unnecessary” and vowed to protect rank-and-file members of the Secret Service from having to face the “public glare” of Congressional hearings.
He pointed out that the DHS inspector general’s office is investigating the March 4 incident and he didn’t want Chaffetz’s panel interfering with that investigation. He said he had offered to make two Secret Service officials available to the committee for transcribed closed-door testimony and would continue working with Chaffetz to find a middle-ground solution.
The ball is now in Chaffetz’s court.
When asked how they planned to proceed, a Chaffetz spokeswoman told the Examiner that she didn’t want to comment on hypotheticals.
“At this point, we expect they will comply with the subpoenas,” she said.
But attorneys familiar with legal protections for federal workers said Chaffetz is unlikely to prevail in the courts if he tries to pursue a contempt of Congress charge against the Secret Service workers for refusing to testify.
William Cowden, an attorney affiliated with the Federal Practice Group Worldwide Services, said rules known as “Touhy regulations” would likely prevent the two subpoenaed Secret Service employees from being forced to testify.
The term “Touhy regulations” comes from a U.S. Supreme Court decision in United States ex rel. Touhy v. Regan in 1951. In that case, the high court reversed a contempt order entered by a federal district court against an FBI agent who defied a deposition subpoena.
The court ruled that the contempt citation was improper because the DOJ’s attorney general was refusing to allow the FBI agent to testify and the agent was simply abiding by his boss’s order.
Part of the rationale for that decision, Cowden said, was that the Supreme Court determined that rank-and-file federal workers could be dragged into court — or in this case, Congress — all the time to testify about their expertise but that the testimony could interfere with their actual work.
DHS workers are covered by these Touhy protections, Cowden said.
“If push comes to shove, the DHS office of general counsel can deny the subpoena and Congress would have to litigate it in the courts,” he said.
Johnson’s other reason for refusing to allow the Secret Service workers to testify — that it could interfere with an ongoing inspector general investigation — also has strong legal standing, Cowden said.
“The courts have regularly respected that argument — that there’s an ongoing investigation that shouldn’t be interfered with,” he said.
“Chaffetz could take this to court and try to grandstand, but that would be pushing it and it would likely be a loss,” Cowden said.
Stan Brand, an attorney who has first-hand knowledge of the contempt of Congress process, said Chaffetz is fighting an uphill battle because the Justice Department is charged with enforcing them.
The contempt charge would have to pass out of the Oversight Committee and then the full House. That vote refers the contempt charge to the local U.S. attorney, who will decide whether to bring it before a federal court.
“The question is how are they enforced,” Brand told the Examiner. “DOJ won’t and then [the House] could sue and wait three years for a decision.”
“Congressional subpoenas have become ‘pop guns’ given the difficulty of enforcing them,” he said.
