What's So Hard About Complying With Solyndra Subpoena?


If you want to see why "executive privilege" – the non-constitutional and vaguely defined notion that the president is entitled to conduct public affairs in secret – is a fake idea, take a look at the letter President Obama's lawyer sent out on Friday

"A significant intrusion on Executive Branch interests" is how counsel to the president Kathryn H. Ruemmler describes the House Energy and Commerce Committee's subpoena for documents related to the half-billion-dollar loan guarantee to a company whose largest investors were Obama campaign donors. 

Ruemmler's refusal to comply [pdf] with the House subpoena is heavy on "good faith offers" and "more focused requests" and efforts to "work with the Committee" about "legitimate interests" and so forth. But her explanation for why the White House can't come up with a full Solyndra document dump – ten months after the House began its investigation – is straightup bullshit: 

As written, [the subpoena] encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra, and the subpoena purports to demand a complete response in less than a week. Thus any document that references Solyndra, even in passing, is arguably responsive to the Committee's request, and you reaffirmed this week that you intend for the request to be that broad. 

That "less than a week" is rich. Here's a partial timeline of White House non-compliance with the Solyndra investigation over the whole of 2011. The House investigation has produced such a cavalcade of faulty memories, unavailable documents and "Solyndra Who?" replies that my own namechecks of President Nixon and Sgt. Schultz, which seemed amusing at the time, have been played to death like a hit Saturday Night Live sketch. 

Ruemmler claims that as part of the administration's good faith attempt to work with the Congress, "we suggested that the Committee focus first on communications between the White House and those agencies directly involved in the Solyndra loan guarantee." That conveniently limits the data to the Departments of Energy and Treasury – a fatal limitation in a probe of political logrolling, which by its nature occurs in unofficial channels. 

For example, David Prend, the RockPort capital investor who tried to pressure the U.S. Navy into buying Solyndra's fragile tube-based solar panels, showed up in some of the documents released by the White House. But unlike, say, Steven "How [expletive] hard is this?" Spinner, Prend was a friend of the administration rather than an employee of it, and all his dealings are not going to be captured in departmental correspondence. For that matter, how much can the "agencies directly involved" tell us about the influence of billionaire Obama donor/bundler George Kaiser, whose investment vehicles Argonaut Ventures I L.L.C. and GKFF Investment Company both had large positions in Solyndra and were represented on its board of directors? 

In Ruemmler's world, these lacunae shouldn't matter because the question of political corruption has already been settled: "[N]one of the more than 85,000 pages of documents produced to date evidence any favoritism to political supporters or wrongdoing by the White House." 

In fact, there's plenty of evidence of too-cozy relationships among Secretary of Energy Steven Chu, Obama, Prend, Spinner, Kaiser, Solyndra founder Chris Gronet and others. It might not be enough for a conviction, but then it's the Obama Administration, not Congress, that is treating this as a potential criminal matter. The House is just trying to find out why taxpayers were made to lose half a billion dollars on an idiotic green scheme that even the free-spending Bush Administration found to be a panel too far. 

To believe Ruemmler's claim that the House request is "an unreasonable burden on the President's ability to meet his constitutional duties," you'd have to assume the search engine had never been invented. This is the work of a few hours, at a time when the executive branch has 2.8 million employees. The whole thing could be done by staffers, leaving the president to focus on golf and fundraising and long, boring speeches. 

With all respect to Nixon and Schultz, the president's real avatar in this affair may be evil King John, who fought tooth and nail for absolute executive privilege before being compelled to sign the Magna Carta. While a quick reread reveals Shakespeare's Life and Death of King John to be disappointingly lacking in quotable material, the actual monarch had a line that nicely captures the combination of entitlement and self-pity common to true believers in executive privilege: "Why do not the barons, with these unjust exactions, ask my kingdom?"

Because Solyndra is a farce rather than a tragedy, it's an especially good demonstration of the illegitimacy of executive privilege. No doubt greater crimes are committed when White House prerogatives are invoked over supposed concerns about national security or the president's safety. But Solyndra concerns only a piddling $528 million. That the president's minions are flouting the law over such a small matter reveals just how shabby the concept of executive privilege is, and also how precious it is to presidents who have everything to hide.