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The Story Of The Last Time The White House Sued The Target Of A Congressional Subpoena

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May 6, 2019 11:56 a.m.

I wrote today about the broad pattern of the Trump administration stonewalling House Democrats’ oversight efforts, and how it suggests a deeper breakdown in the incentives and norms that have traditionally driven congressional oversight.

Trump’s decision to hire personal lawyers to sue businesses in a bid to stop them from complying with congressional subpoenas arguably stands out as the most aggressive example we’ve seen of Trump administration resistance.

But it’s not entirely unprecedented. Something similar has happened before, back in 1976.

We last saw the tactic of suing a third-party recipient of a congressional subpoena  back during the post-Watergate rush of congressional scrutiny of the executive branch.

Charles Tiefer, a former House counsel, told me about a 1976 case in which the government sued to stop Congress from getting access to intelligence sources and methods relating to AT&T, then the country’s telephone monopoly.

A House subcommittee under Rep. John E. Moss (D-CA) had sent a subpoena for documents as part of an investigation into “warrantless ‘national security’ wiretaps” — a topic familiar to anyone who followed politics during the Bush administration.

In the years after the Vietnam War and mass protests around the country, Congress was taking a sharper look at whether the U.S. government — and the FBI in particular — had overstepped its bounds in surveilling people for their political beliefs under the guise of national security.

Specifically, Rep. Moss demanded “copies of all national security request letters sent to AT&T and its subsidiaries by the FBI as well as records of such taps prior to the time when the practice of sending such letters was initiated” in a June 1976 subpoena.

The Ford White House immediately intervened, sending a representative to try and strike a deal with Moss that would give Congress redacted copies of the legal memoranda created to justify each request. Those documents could have provided more details than the request letters themselves, but would have been made vaguer through redactions and rephrasings — in addition to blacking out certain words and sentences, the documents would include paraphrases. (For instance, instead of someones actual identity, they would provide a generic description. An appellate opinion cites one target from these redacted memoranda as “Middle Eastern diplomat,” for example.)

Discussions broke down, and in July 1976 the Justice Department sued AT&T to prevent it from complying with the subpoena.

The D.C. Court of Appeals took the case very seriously, and strained to avoid ruling on the “nerve-center constitutional questions” that the dispute raised. The court described the case as a “portentous clash between the executive and legislative branches,” while urging the two sides to reach an agreement.

But Congress and the White House weren’t able to agree on their own. So the court mandated a settlement the following year, avoiding a decision on the Constitutional questions at stake and allowing Congress access to only a portion of the documents it wanted.

“That’s what it took historically to get a lawsuit that, now, is tossed off casually among many actions,” Tiefer, the House Counsel, told me.

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