JGO agrees to resolve testimonial immunity issue in probe

The Washington D.C.-based lawyer of Gov. Ralph DLG Torres, Ross Garber, took part in a conference call yesterday before the House of Representatives Judiciary and Governmental Operations Committee meeting, during which he explained further the constitutional testimonial immunity and privilege of the governor’s executive assistant, but at the same time proposed a negotiated resolution.

JGO Committee chair Rep. Celina R. Babauta (D-Saipan) announced after the meeting that there is one thing that they agree with Garber’s statements: that they should resolve the issues in the House chamber and respect the legislative process.

Babauta postponed the JGO hearing set for today, Thursday, and reset it to Tuesday, Oct. 19, at 10:30am.

“We hope that no further barriers or obstacles are placed in our way so that we can receive the testimony of Ms. Frances Dela Cruz, the executive assistant to the governor,” Babauta said.

In response to Saipan Tribune’s inquiry, Babauta said they hope to meet with Garber and Dela Cruz’s lawyer, Viola Alepuyo, this Monday to resolve the issues.

Alepuyo, along with Governor’s Office lawyer, Gilbert Birnbrich, appeared at yesterday’s meeting. Both did not argue, saying Garber fully explained their position.

Alepuyo also wrote Babauta last Tuesday reaffirming that her client is invoking her rights and objecting to the subpoena based on her constitutional testimonial immunity and privilege.

“We continue to hope that we can resolve these issues amicably without the need for judicial intervention,”Alepuyo said.

Torres hired Garber to represent him and the Governor’s Office in the committee’s investigation into his expenditure of public funds and travels.

Garber noted that there are significant executive privilege issues implicated by the committee’s subpoena of Dela Cruz that must be addressed, including the gubernatorial communications privilege and the deliberative process privilege.

Garber again wrote Babauta last Tuesday after receiving the latter’s statement that the committee is prepared to enforce the subpoena through legal remedies, to include but not limited to contempt proceedings. This came soon after he first wrote Babauta on Monday, where he first raised the issue of testimonial immunity.

Garber said the notion that a witness would be threatened with criminal contempt because the Executive Branch of the CNMI government has raised serious constitutional issues is an unnecessary escalation and undermines principles of comity between the legislative and executive branches.

“These kinds of issues have come up often in connection with legislative investigations but are almost always resolved through negotiation. I hope that we can constructively find a path forward,” said Garber in his letter.

Before announcing the new JGO hearing date, Babauta pointed out that the committee’s investigation has allowed them to question police officers, administrative personnel and directors, and that most of these witnesses testified that either they don’t recall, they don’t remember, they don’t know, or have asked that simple questions be translated into the vernacular. She said all of them have brought legal counsel who have raised issues regarding procedures and language.

On the other hand, she said, they have had Lt. Gov. Arnold I. Palacios and Commonwealth Utilities Corp. executive director Gary P. Camacho, who both willingly answered inquiries made by the committee members.

Asserting absolute testimonial immunity on behalf of the employees who are not senior aides, Babauta said, borders on a conspiracy to frustrate any investigation of Torres himself. “It makes people wonder what is there to hide,” she said.

Babauta said the Office of the Governor asserts that senior officials of the Executive Branch have complete immunity from legislative subpoenas, basing this position on internal memos of the federal Department of Justice. Babauta pointed out, though, that state and federal courts have taken the opposite position. She said there is no precedent in CNMI law on the issue of testimonial immunity for the Executive Branch.

“My colleagues and my people, we are here to strengthen and defend the rule of law, not to weaken it, not to attenuate it, and not to disfigure it,” the lawmaker said.

Babauta said this is not a question of the perfection of law, but a question of democratic foundations and principles. “The personal fate of the governor is not the issue. The political fate of his party [Republican] is not the issue,” she said.

Babauta said that Torres is a trustee of the Commonwealth’s finances and resources, and that he has taken an oath to ensure that the laws of the Commonwealth be followed. “And that’s what the Constitution says, not what his defenders say,” Babauta said.

Rep. Vicente Camacho (D-Saipan) takes issue with Garber representing Torres at the committee hearing, saying he is not a registered attorney in the CNMI Bar. Camacho said that Garber invoking his knowledge and experience against the people of the CNMI is “too disrespecting the people of the CNMI.”

Rep. Donald Manglona (Ind-Rota) questioned where was this argument about testimonial immunity when special assistant for administration Mathilda A. Rosario came in to testify. He said no one ever made this an issue and they allowed Rosario to testify in front of the committee. Rosario’s role in the Governor’s Office deals with the processing of documents for the governor’s review.

Rep. Christina Sablan (D-Saipan) said Garber cites no case law supporting this position of testimonial immunity. For the most part, Sablan said, they have heard Garber cite internal memoranda from the Department of Justice, which is not a controlling authority and which the courts have disagreed with.

“The governor is not a king. His staff do not have absolute immunity,” she said.

Sablan said it was apparent for them that Garber had not actually seen Dela Cruz’s position description and so could not justify the assertion that she is a senior adviser or senior aide or high official in the Executive Branch entitled to any form of immunity.

At the meeting, Garber said he found out about the subpoena for Dela Cruz just a couple of days ago and that he sort of scrambled to put together a couple of letters on the issue. Garber said that, as the committee probably knows, these kinds of subpoenas to senior aides to a governor are very rare, because usually there are other ways to get information that don’t implicate the immunity and privilege issues.

He said as he noted in his letters to the committee, these issues of immunity and privilege are rarely litigated as they’re usually worked out between the Executive Branch and the Legislative Branch through negotiations.

“I’m pretty confident that there’s a path forward through a negotiated resolution in this case,” he said.

Garber said he does not think that it’s anyone’s interest, including in the interest of the people of the CNMI, to devote the time and money and energy to litigation when there’s a path to resolve the matter.

Garber said the Department of Justice, through Republican administrations and Democratic administrations, has been consistent in finding that senior aides to the executive, in that case the president, are immune from testimony.

Garber said it is unfair to put this witness, Dela Cruz, in the middle of a constitutional buzzsaw for threats of criminal contempt when the Executive Branch is invoking some weighty and well-established constitutional principles.