Bush Administration Snubs Another Congressional Committee Subpoena

Pension Benefit Guaranty Corporation declines production of long overdue report of agency’s management and governance practices

Thursday, July 31, 2008

“The Pension Benefit Guaranty Corporation must comply with our subpoena. The administration’s dismissal of a legally enforceable congressional subpoena is completely unacceptable,” said Miller. “As the U.S. District Court affirmed just today, executive branch officials must fully comply with congressional subpoenas and provide all non-privileged documents. I take seriously our committee’s constitutional mandate to investigate matters subject to our legislative jurisdiction and expect the agency to cease its lawless intransigence.”

The U.S. District Court today ordered Harriet Miers and Joshua Bolten to comply with a Congressional subpoena.

The PBGC contracted an outside review of the agency’s practices after the U.S. Government Accountably Office report highlighted several deficiencies at PBGC. The subpoena ordered the production of documents related to this review.

To view the subpoena, click here.

To read Tuesday’s response from the PBGC, click here.

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 July 31, 2008

Mr. Charles E. F. Millard

Director

Pension Benefit Guaranty Corporation

1200 K Street NW

Washington, DC 20005-4026

Dear Mr. Millard:

I find entirely unacceptable your July 29, 2008, letter to me in response to the Committee on Education and Labor’s subpoena of documents from the Pension Benefit Guaranty Corporation (“PBGC”).  I am disappointed that an officer of a federal government agency, who took an oath to uphold the Constitution, would dismiss a Congressional subpoena.  I take seriously the Committee’s mandate to investigate matters subject to the Committee’s legislative jurisdiction and the Congress’ Constitutional prerogative to do so.

I understand that PBGC commissioned the McKinsey & Company, Inc., report referenced in the subpoena in response to the July 2007 Government Accountability Office report that highlighted widespread problems at PBGC.  The subpoenaed documents undoubtedly contain highly relevant information that would inform the Committee’s members as we explore potential legislative solutions to the challenges at PBGC.

You did not make clear in your letter whether you claim any privilege that would legally excuse you from compliance with the subpoena.  Your letter twice mentions “deliberative process.”  The inadequacy of your response to the subpoena is evident by the fact that you failed to present any legal argument whatsoever.  As you should know, deliberative process concerns are not a valid legal basis for withholding information from a Congressional committee, and such concerns are insufficient to excuse anything other than full compliance with a Congressional subpoena.

Before any further action by the Committee or the House, I request that you immediately provide a legal justification for your refusal to comply with the Committee’s legally authorized subpoena.  Alternatively, you can make arrangements to fully comply with the subpoena, beginning with the immediate production of the draft McKinsey & Company, Inc., report that PBGC staff recently circulated for comment to the PBGC board.

Please provide the legal memorandum to the Committee’s Chief Investigative Counsel, Michael Zola, no later than close of business on August 14, 2008.  Mr. Zola may be reached at (202) XXX-XXXX. 

Sincerely,

GEORGE MILLER

Chairman

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