Lawmakers Ask Judge to Dismiss House Bank Records Subpoena

Five members of Congress asked a federal judge Friday to throw out a grand jury subpoena demanding a massive release of House bank records, which the chamber voted this week to relinquish.

“The records that are involved in this case are sensitive, they’re personal,” said Robert Deitz, attorney for two of the House members. “They’re the records that most of us would least like to turn over to outsiders.”

The subpoena violates the constitutional separation of powers and is too broad, Deitz said.

But U.S. District Judge John Garrett Penn repeatedly pointed out that the House voted Wednesday to provide the records to prosecutors investigating penalty-free overdrafts at the now-closed bank. He said he would rule on the request by Monday.

Special counsel Malcolm R. Wilkey, who is seeking copies of every check processed by the bank over a 39-month period, repeated his office’s promise to return copies of checks written by about 170 lawmakers who had no overdrafts.

“We are charged with looking at the overall operation of the bank with reference to the criminal law,” Wilkey said, adding that the decision to return the 170 members’ checks unreviewed was “a great concession.”

Wilkey, a former judge hired as special counsel by the Justice Department, has said he has found evidence that check kiting may have occurred.

The court challenge was brought by Reps. Henry B. Gonzalez (D-Tex.), Sidney R. Yates (D-Ill.), Jolene Unsoeld (D-Wash.), Ted Weiss (D-N.Y.) and Craig Washington (D-Tex.).

Their attorneys said the House resolution passed Wednesday said that it was not foreclosing challenges by individual members.

“One can lay out an individual’s entire personal life by looking at his checkbook,” said Deitz, who represented Gonzalez and Yates. “Isn’t each member being reminded of the long reach of law enforcement . . . that the executive branch has?”

Attorney Alan Morrison of Public Citizen said that if Penn upheld the bulk of the subpoena, the House could separate the 170 lawmakers’ checks before turning the other records over to Wilkey. Morrison represented Unsoeld, Weiss and Washington.

James Cole, Wilkey’s chief of staff, said his office could do the work faster. He defended the subpoena’s sweeping nature, saying it was “only a function of the extent to which this banking facility was abused by 300 or so individuals.”

The bank records are contained on 41 rolls of microfilm, which the House Ethics Committee plans to copy and provide to Wilkey’s office next week. The committee has reported that 325 past and present members wrote more than 24,000 overdrafts at the bank.