Subpoenas May Have Been Unconstitutional, Scholars Say

The House Oversight Committee may have acted unconstitutionally when it gave former Rep. Robert K. Dornan the power to subpoena records from his political enemies, according to several legal scholars.

Even the legal counsel for the committee conceded Thursday the critics could be right.

“This is the first time this has happened, so we’re writing the script as we go along,” said Mark Braden, counsel to the Republican majority. “I hope we’re writing it in a way that’s constitutional, but I’m sure the question will eventually be settled in court.”

The constitutional question could become critical as Dornan tries to piece together a case for overturning his election loss to Rep. Loretta Sanchez (D-Garden Grove). Dornan, who lost by 984 votes, contends the election was marred by fraud, including voting by noncitizens. A committee task force will review evidence at an all-day hearing in Santa Ana on Saturday.

Dornan last month issued 31 subpoenas to political campaigns, immigrant rights groups and labor organizations seeking membership lists, bank records, employee rosters and other information.

Nearly all have refused to turn over the information, contending the procedure for issuing the subpoenas was unconstitutional.

Paul Rothstein, a professor at Georgetown University Law Center in Washington, said two constitutional principles appear to have been violated when the subpoenas were issued under authority of the Oversight Committee.

First, the committee granted subpoena power to Dornan, who is a private citizen. “That to me is the death blow,” Rothstein said. “The committee delegated powers to an individual who can then perpetrate quite a hardship on other individuals, harass and annoy them, and there’s no restraint. My conclusion is that it’s an unconstitutional delegation of power to an individual.”

Another problem Rothstein and others noted is the mixing of congressional and judicial functions, an apparent violation of separation of powers.

The task force gave Dornan the power to issue subpoenas but told him they must be signed by a judge. They were issued by U.S. District Judge Gary L. Taylor in Santa Ana. However, objections to the subpoenas had to be lodged with the committee.

“Everybody gets to pass the buck,” said Bob Pugsley, a professor of law at Southwestern University. “The committee gives authority to Dornan, who goes to the court . . . and then any complaints have to go back to the committee. It seems like a very strange cross-mingling of two branches of government.”

Dornan attorney Bill Hart said the procedure is spelled out in the Contested Elections Act, which Congress passed in 1969. “If the law is unconstitutional, that’s something that’s beyond my ability to address right now,” he said.

The Contested Elections Act has never before been taken to this point, however, and committee members are acutely aware they are breaking new ground by giving Dornan subpoena power.

During a three-hour session Wednesday, committee members took a closer look at some of the subpoenas that had been challenged, in an attempt to bring the proceedings in line with the constitution, Braden said.

They held a dozen subpoenas in abeyance until Dornan shows why the information is relevant. The subpoenas were issued to several labor unions, Rancho Santiago College, the Immigration and Naturalization Service and Lou Correa, an unsuccessful Democratic candidate for state Assembly.

The committee also voted to seal some documents subpoenaed from the immigrant rights group Hermandad Mexicana Nacional; the Sanchez for Congress campaign; and Catholic Charities, which runs a citizenship education service.

Finally, the committee voted to compel Loretta Sanchez; Hermandad Mexicana Nacional; Catholic Charities; and the Dump Dornan campaign, a committee formed by former Democratic congressional candidate Mike Farber, to produce other documents within 15 days.

Stan Brand, a former counsel for the House who is advising Sanchez, said the committee’s action made things worse. “By taking these actions, they endorsed the subpoenas, and they’re aiding and abetting their use,” he said.

Sanchez attorney Wylie A. Aitken said the congresswoman would refuse to honor the subpoena and that the committee would have to decide what to do next.

Mark Rosen, the attorney for Hermandad, which is under criminal investigation for allegedly registering noncitizens to vote, said he expects to take the issue to court, where he will argue the constitutional issues.

Braden, the attorney for the committee, said he was unsure what would happen if the subpoenas are not honored. “If you don’t comply, you are committing a criminal offense, a misdemeanor,” he said. “How that would be enforced, I don’t know. We haven’t quite made it to that bridge yet.”