Reply
 
Thread Tools Display Modes
  #1  
Old 10-09-2019, 07:51 AM
Running with Scissors is online now
Guest
 
Join Date: Aug 2000
Location: Small blue-green planet
Posts: 1,431

Is there a legal basis for the State Department forbidding Sondland from testifying?


(Please note that this is in GQ, not GD)

The State Department has blocked Sondland from testifying. Isn't that a violation of his first amendment rights?
__________________
"You can't really dust for vomit." -- Nigel Tufnel

Last edited by Running with Scissors; 10-09-2019 at 07:51 AM.
  #2  
Old 10-09-2019, 08:45 AM
zimaane is offline
Guest
 
Join Date: Jan 2003
Location: washington, dc
Posts: 995
First Amendment rights are not absolute, especially in a workplace setting.
  #3  
Old 10-09-2019, 09:03 AM
OldGuy is offline
Charter Member
 
Join Date: Dec 2002
Location: Very east of Foggybog, WI
Posts: 5,461
Quote:
Originally Posted by zimaane View Post
First Amendment rights are not absolute, especially in a workplace setting.
I don't think that could be the explanation here. Sondland would not be speaking in his workplace.
  #4  
Old 10-09-2019, 09:12 AM
Crotalus's Avatar
Crotalus is offline
Guest
 
Join Date: Jun 2005
Location: Chillicothe, Ohio
Posts: 6,086
He was instructed by his boss to not testify. He obeyed the instruction. There's no legal argument involved there. His appearance was to have been voluntary, no subpoena. That has changed now, he's been sent a subpoena.
__________________
Ad hominem is a logical fallacy when it's used to argue against a concept. But it's perfectly appropriate when your point is that someone is an asshole. TonySinclair
  #5  
Old 10-09-2019, 09:15 AM
Lord Feldon's Avatar
Lord Feldon is offline
Member
 
Join Date: Dec 2010
Location: Ohio, USA
Posts: 6,579
He has the constitutional right to talk about things, and the president has the constitutional right to fire political appointees at will.

Last edited by Lord Feldon; 10-09-2019 at 09:17 AM.
  #6  
Old 10-09-2019, 09:21 AM
BobLibDem is online now
Guest
 
Join Date: Jul 2003
Location: Home 07 NCAA HockeyChamps
Posts: 21,698
whoops, wrong forum

Last edited by BobLibDem; 10-09-2019 at 09:22 AM.
  #7  
Old 10-09-2019, 09:27 AM
Running with Scissors is online now
Guest
 
Join Date: Aug 2000
Location: Small blue-green planet
Posts: 1,431
Quote:
Originally Posted by Crotalus View Post
He was instructed by his boss to not testify. He obeyed the instruction. There's no legal argument involved there. His appearance was to have been voluntary, no subpoena. That has changed now, he's been sent a subpoena.
OK, but all reporting I've read on the incident states that he's been "blocked", which implies he's not allowed to do it. Maybe I'm going out on a limb here, but I'm reading it as more than being threatened with termination.
__________________
"You can't really dust for vomit." -- Nigel Tufnel
  #8  
Old 10-09-2019, 09:39 AM
Euphonious Polemic is online now
Guest
 
Join Date: Apr 2008
Posts: 12,211
Quote:
Originally Posted by Running with Scissors View Post
OK, but all reporting I've read on the incident states that he's been "blocked", which implies he's not allowed to do it. Maybe I'm going out on a limb here, but I'm reading it as more than being threatened with termination.
I may be wrong, but I think the legal argument from Trump's team for people to ignore subpoenas is that the unanimous decision in United States v. Nixon, 418 U.S. 683 (1974) was wrong, wrong WRONG, and Nixon should have been allowed to ignore the subpoena and should have been allowed to hide the evidence against him.

I think this is where they're going.
  #9  
Old 10-09-2019, 09:39 AM
zimaane is offline
Guest
 
Join Date: Jan 2003
Location: washington, dc
Posts: 995
Quote:
Originally Posted by OldGuy View Post
I don't think that could be the explanation here. Sondland would not be speaking in his workplace.
He would be speaking about his workplace, which is the important thing here.
  #10  
Old 10-09-2019, 10:12 AM
Running with Scissors is online now
Guest
 
Join Date: Aug 2000
Location: Small blue-green planet
Posts: 1,431
Quote:
Originally Posted by zimaane View Post
He would be speaking about his workplace, which is the important thing here.
Then that would be a civil issue, not a legal issue, correct?
__________________
"You can't really dust for vomit." -- Nigel Tufnel
  #11  
Old 10-09-2019, 10:44 AM
zimaane is offline
Guest
 
Join Date: Jan 2003
Location: washington, dc
Posts: 995
Quote:
Originally Posted by Running with Scissors View Post
Then that would be a civil issue, not a legal issue, correct?
I am not a lawyer, a fact I should have made clear, but yes, I believe it would come down to employment law, which is a civil matter.

I don't know if there is any First Amendment case law with regards to speaking about one's employment. Maybe a real lawyer can weigh in.
  #12  
Old 10-09-2019, 11:24 AM
Falchion is offline
Guest
 
Join Date: Oct 2013
Posts: 1,127
Quote:
Originally Posted by Running with Scissors View Post
(Please note that this is in GQ, not GD)

The State Department has blocked Sondland from testifying. Isn't that a violation of his first amendment rights?
As a general matter, government agencies may regulate how and whether their employees (and former employees) testify about matters related to their employment. I think the statutory authority comes from 5 U.S.C. 301, but most (all?) agencies have regulations (known as "Touhy regulations") which (broadly) require a employee to seek permission from the agency before testifying; allows the agency to limit or prohibit the testimony; and requires the employee to follow instructions. I don't know what the penalty is for violating it, but it probably jeopardizes your job and pension, etc.

It usually comes up in civil litigation, but I don't know why the regulations wouldn't apply to statements before Congress. I'm not familiar with the State Department regulations, but the department regulations that I've read are fairly consistent with each other. Generally speaking, any sanction would be against the department that refused to allow the testimony.

Last edited by Falchion; 10-09-2019 at 11:24 AM.
  #13  
Old 10-09-2019, 11:34 AM
Chefguy's Avatar
Chefguy is offline
Charter Member
 
Join Date: Jun 2003
Location: Portlandia
Posts: 42,425
From personal experience, I can tell you all that the State Department regulations (like most government regs) are labyrinthine and often contradictory. You can find a cite for almost any action taken and another cite that refutes the first one.
  #14  
Old 10-09-2019, 11:35 AM
Running with Scissors is online now
Guest
 
Join Date: Aug 2000
Location: Small blue-green planet
Posts: 1,431
If said employee is subpoenaed, how is that reconciled?
__________________
"You can't really dust for vomit." -- Nigel Tufnel
  #15  
Old 10-09-2019, 12:07 PM
Falchion is offline
Guest
 
Join Date: Oct 2013
Posts: 1,127
Quote:
Originally Posted by Running with Scissors View Post
If said employee is subpoenaed, how is that reconciled?
It depends. As a general matter, in U.S. ex rel. Touhy v. Ragen (1951), the Supreme Court found that a subordinate official of a department (there, DOJ) could refuse to comply with a document subpoena (directed to him personally) because of a DOJ regulation. (This is why such regulations became known as "Touhy regulations"). The basic conclusion was that you can't hold the subordinate official in contempt for failing to produce documents when he wasn't legally required to do so (because of the department's right to regulate such production).

Touhy dealt with documents, but is routinely applied to testimonial subpoenas. The modern view is, generally, that you may not directly subpoena an agency employee (at least without going to the process set forth in the regulation), but that you can probably subpoena the agency itself. That works for documents (subject, of course, to any privilege) and "corporate representative" testimony.

But the Touhy regulations (at least that I'm familiar with) contemplate subpoenas and instruct the witness to appear and refuse to answer questions and refer to the regulations. See, e.g., 28 C.F.R. 16.28 (DOJ Reg: "the employee or former employee upon whom the demand has been made shall, if so directed by the responsible Department official, respectfully decline to comply with the demand."); 6 C.F.R. 5.47 (DHS Reg: "the employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing this subpart and United States ex rel. Touhy v. Ragen,340 U.S. 462 (1951).").

Last edited by Falchion; 10-09-2019 at 12:08 PM.
  #16  
Old 10-09-2019, 12:12 PM
Running with Scissors is online now
Guest
 
Join Date: Aug 2000
Location: Small blue-green planet
Posts: 1,431
OK, so, remembering that this post is in GQ, is there a legal way for the House inquiry to deal with this?
__________________
"You can't really dust for vomit." -- Nigel Tufnel
  #17  
Old 10-09-2019, 12:51 PM
Falchion is offline
Guest
 
Join Date: Oct 2013
Posts: 1,127
Quote:
Originally Posted by Running with Scissors View Post
OK, so, remembering that this post is in GQ, is there a legal way for the House inquiry to deal with this?
I don't think I've done anything to run afoul of GQ?

But, I think a Touhy decision is reviewable in federal court under the Administrative Procedure Act. You may also be able to refer the subpoena to a federal court for "enforcement" (which will raise the same issues). The agency regulations set forth a number of criteria that an agency is supposed to consider before prohibiting testimony; I think a court could review those. It may depend on why the agency refused to let the employee testify, but general recalcitrance isn't going to suffice

It's also possible that there is a different rule for Congressional subpoenas (but I haven't seen any real argument one way or another on this). The oversight role of Congress implicates somewhat different equities than private litigation.

Edit: Congress could also change the law.

Last edited by Falchion; 10-09-2019 at 12:51 PM.
  #18  
Old 10-09-2019, 01:04 PM
Running with Scissors is online now
Guest
 
Join Date: Aug 2000
Location: Small blue-green planet
Posts: 1,431
Quote:
Originally Posted by Falchion View Post
I don't think I've done anything to run afoul of GQ?
Nope, just being preemptive

Thanks for your responses, they've been very informative.
__________________
"You can't really dust for vomit." -- Nigel Tufnel
  #19  
Old 10-10-2019, 03:30 PM
md2000 is offline
Guest
 
Join Date: Feb 2009
Posts: 15,079
Some of the other commentary on the recent spate of subpoenas and such flying around, I recall some mention that the Office of Legal Counsel (?) had issued and opinion that certain requests and subpoenas were not valid due to issues like executive privilege - and that anyone in the executive branch was obliged to follow these legal opinions.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 12:04 PM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright 2019 STM Reader, LLC.

 
Copyright © 2017