The special counsel investigating possible crimes in the House bank scandal has served a sweeping subpoena for personal records on members of the House of Representatives, a request that lawmakers said Friday they would resist.
The conflict could precipitate a constitutional confrontation between Congress and the executive branch while exposing politically explosive details of how members spent their money.
The special counsel, Malcolm Wilkey, a retired Washington federal appeals judge, is conducting a fact-finding inquiry for Atty. Gen. William Barr to determine whether prosecutions are warranted.
Among the areas that Wilkey and staff investigators are focusing on are whether tax or campaign finance laws were violated.
Legislators had accounts at the now-defunct House bank on which 325 current or former members wrote checks they could not cover.
The bank would honor the overdrawn checks, however, effectively granting the legislators interest-free loans. The special counsel is investigating whether some lawmakers evaded income taxes on the free loans and whether they used the money drawn on their accounts to benefit their election campaigns, among other things.
In a letter dated April 21 to House Speaker Thomas Foley (D-Wash.), Wilkey said the subpoena asks for some 40 rolls of microfilm or microfiche that contain all the checks handled by the bank in the 39-month period that the House Ethics Committee recently investigated.
Wilkey said the records were the most complete source of information about bank operations during the period, which ended last fall.
”This letter is being delivered with a grand jury subpoena . . . to focus the attention of the House on exactly what we need and why we need it,” the letter said. ”. . . Nothing less than a complete look at the records-with reference to the criminal law-will satisfy the American people.”
Foley, in a letter to House colleagues, said he ”could not in conscience comply with the sweeping and unprecedented scope of his documentary request.” He criticized Wilkey for acting ”precipitously” by serving the subpoena when Congress was in recess.
House Republican leader Bob Michel of Illinois indicated in a letter that he, too, considers the subpoena too broad in that it would disclose random, and probably irrelevant, records, including information on members who had accounts but did not even make overdrafts.
Michel and Foley said the issue will be taken up by the bipartisan leadership next week, after Congress returns from its spring recess.
Although the issue involves some differing constitutional interpretations, it could result in political damage to members of both parties.
”I realize this is a difficult and complex issue, but members should be advised that we are now proceeding with a criminal investigation, not just an internal House review,” Michel wrote.
Some law professors who specialize in separation-of-powers issues said the confrontation could hold great constitutional significance.
”What we are talking about is one branch of government trying to obtain highly confidential information about another branch,” said Geoffrey Miller, a professor of law at the University of Chicago.
Miller said the legislative branch historically has resisted attempts by the executive branch to divulge information.
In this case, however, because of the political importance attached to the check-kiting, an issue that already has killed off several congressional careers, the House might be vulnerable to charges of a cover-up if it resists the subpoena.
”I think he has to (ask for the records) if he is conducting any kind of investigation,” Rep. Henry Hyde (R-Ill.) said of Wilkey`s action.
”There may be some constitutional questions, but I would be loath to interpret them because a serious political problem exists.”
The problem, Miller said, is that the scope of the subpoena is so broad that lawmakers might balk at disclosure because of the precedent it would set, not to mention the possible public disclosure of private facts.
”The House really has a hard call to make,” Miller said.
”If the House refuses to comply, obviously there is going to be significant political fallout.”
In an earlier interview, Wilkey said he would use his subpoena powers to obtain the records and said he saw no constitutional barrier to access. Wilkey also said he would guard representatives` privacy concerns as long as their financial records didn`t suggest criminal activity.
Foley said last week that he hoped the disclosure of the more than 300 members who had written bad checks would end the matter.
That doesn`t appear likely. Members of both parties are on record calling for disclosure of at least as much as Wilkey suggested.
