THE House Committee on Judiciary and Governmental Operations stands firm in its position that Frances "Kai" Dela Cruz, the executive assistant of Gov. Ralph DLG Torres, must comply with the subpoena to appear before the committee today, Tuesday at 10:30 a.m. in the House chamber.
"We do expect her to come in…with her counsel of her choosing, and if she does not appear…the committee is prepared to enforce any action that allows us to take under the law of the CNMI, to include finding her in contempt of the legislative subpoena," said the committee chair, Rep. Celina R. Babauta, in an interview.
Dela Cruz was originally scheduled to testify Thursday last week, but her legal counsel, Viola Alepuyo, informed the committee that her client would not be able to appear "in light of the constitutional testimonial privilege and immunity recently raised by the attorneys for the Office of the Governor."
The committee then accommodated the request of the governor's Washington D.C.-based lawyer, Ross Garber, to hold a meeting on Wednesday last week to discuss the issue.
Rep. Celina Babauta also rescheduled the hearing for today, Tuesday, Oct. 19.
On Friday, Babauta received another letter from Garber who proposed that Dela Cruz be allowed to provide in writing and under oath, responses to written questions.
The lawyer said, "Any assertion of privilege would be accompanied by a written explanation from counsel to the Office of the Governor."
"Should the committee determine that Ms. Dela Cruz' responses are not satisfactory,” he added, “she and the Office of the Governor will work in good faith with the committee to provide additional responses and, if necessary, revisit the topic of in-person testimony. The committee would not waive its claimed right to re-issue a subpoena to Ms. Dela Cruz.”
In her response to Garber on Saturday, Babauta said, "Your proposal is, in effect, a proposal for our subpoena to be set aside. We would have expected at the very least that the witness appear and raise applicable privileges when necessary. We assure Ms. Dela Cruz that she has nothing to fear from this committee; she will be afforded every procedural right provided by CNMI law."
Babauta said her committee "has made every effort to be accommodating. We met in good faith with you via videoconference, with counsel for the Office of the Governor and with counsel for Ms. Dela Cruz, to discuss ang privileges or immunities she may be afforded by CNMI law."
Babauta said the JGO “has been tasked to investigate serious allegations against Governor Torres. The JGO will not be distracted from doing the people's business by delay tactics or obstruction."
She said Dela Cruz remains subject to subpoena and her original appearance, set for Oct. 14, 2021 at 10:30 a.m. was moved, “out of professional courtesy, to Tuesday, Oct. 19, 2021, at 10: 30 a.m.”
Babauta told Variety in an interview that "there is no assurance the answer Dela Cruz may provide will be hers and hers alone."
She noted that Garber does not represent Dela Cruz. Alepuyo who is the counsel for Dela Cruz "certainly has not asserted any immunity on behalf of her client. It was Garber who is asserting these privileges. Garber can object all he wants, but he does not represent Dela Cruz."
No threats, please
In a letter to Babauta on Monday, Oct. 18, Garber asked her not to threaten Dela Cruz with contempt.
He also said that with “respect to the substance of my proposal, to be clear, I am not advocating that Ms. Dela Cruz refuse to provide information to the Committee. Instead, I propose it be done in a way that maximizes the reliability of any such information and reduces the chance that the process will be deployed to vitiate valid privileges or improperly harass and embarrass key personnel of the Office of the Governor. Nor would my proposal require the Committee to waive or forever eschew obtaining live testimony from Ms. Dela Cruz should it be deemed to be necessary. Instead, upon receiving written answers to questions (under oath), the Committee acting in good faith may then determine whether live testimony would advance its inquiry,” Garber said.
He added, “The Office of the Governor invites further input and even a counter-proposal should this approach not be satisfactory. Again, however, I would urge that threats of contempt against Ms. Dela Cruz be avoided given her untenable position between an arm of the Legislative Branch that is advancing an untested theory of its powers and an Executive Branch making good faith assertions of constitutional privileges and immunities. I await your reply but also invite a real-time discussion with you or counsel to the Committee, which may be a more productive means of addressing these issues.”
Grounds for objection
Garber provided the JGO committee three specific grounds for objecting to the subpoena for Dela Cruz:
1) Dela Cruz, by virtue of her role in the Office of the Governor, is immune from compulsory testimony before the committee.
2) Her testimony would implicate serious executive privilege issue.
3) The subpoena does not further a constitutionally cognizable and legitimate legislative purpose.
Garber said the legislative branch "does not have an unlimited right to demand information from the executive branch" citing a U.S. Supreme Court ruling on Trump v. Mazars USA.
He further said that absent such limits, "an arm of the legislative branch might adopt impermissibly heavy-handed tactics in its dealings with the executive branch."
Garber said the U.S. Supreme Court “has recognized that despite the regularity of disputes over access to information, Congress and the Executive have nonetheless managed for over two centuries to resolve such disputes among themselves.'"
In response, the JGO committee told Garber:
"In the very Mazars case you have cited for your assertion that our subpoenas do not further a legitimate legislative purpose, the D.C. Circuit held that the Congressional subpoenas at issue did serve a 'valid legislative purpose.' On cert, the United States Supreme Court did not hold otherwise, rather, it remanded on the ground that 'special concerns regarding the separation of powers' had not been adequately litigated below."
The JGO committee said it "possesses broad statutory authority without federal analogue to issue subpoenas in service of its investigatory function,” and that Dela Cruz, as a CNMI government employee “has a particular statutory obligation to comply."