Over at The Next Hurrah, Emptywheel and her highly knowledgeable commenters are debating a refusal by 13 congressmen to answer to subpoenas in the trial of alleged Duke Cunningham briber Brent Wilkes.
Emptywheel argues that the refusal is because Wilkes' lawyer - serial defender of corrupt Republicans, Mark Geragos - is simply on a fishing expedition and is trampling on Congressional privilege thereby.
Congressional subpoenas are the new graymail. Recall that the goal of graymail is not to actually win a trial. It is to force the government into deciding between actually holding the trial or dismissing the charges against the defendant.Emptywheel makes a compelling argument - if you accept that each congressman who has previously been exposed as corrupt in the network of cases that includes Cunningham and DeLay was basically "corrupt on his own". That is, if you accept that there likely isn't a far larger and as yet unopened can of worms where various congressfolk either conspired with contractors or were played by those contractors in a larger bipartisan web of corrupt activities.
The reason I said this appears to be similar to a graymail attempt is because Geragos subpoenaed testimony that is, arguably at least, protected. If Judge Burns determines that the subpoenaed testimony is relevant to Wilkes' defense, Congress' invocation of "speech and debate" and House rules will then be weighed. Given the recent Jefferson decision ruling the FBI's raid on Jefferson's office illegal, the speech and debate clause may well be interpreted broadly. Which might--and this is Mark Geragos, mind you, so I say might--mean Congress would be given the choice whether to testify in the trial. And if they don't, Burns might--again, I say might--have to dismiss the charges.
I doubt it'll work (not least because there's only about 3 Congressmen who really have directly relevant testimony, plus that one report), but it's a novel stunt.
That's a pretty big if, to my mind. Especially given CREW's latest list naming the 22 most corrupt lawmakers on the Hill. Raw Story notes that "eight lawmakers from last year's list are now under federal indictment" and that several of those subpoenaed also made last years list.
But however you may read the level of Congressional corruption I'm sticking by my argument yesterday that, to the man on the street, refusal by Democratic congressmen to answer federal subpoenas fatally undermines Congress' own push to get White House intimates to answer to Congressional subpoenas. All the fine rhetoric about "they only refuse who have something to fear" suddenly looks very hollow.