THE House Judiciary and Governmental Operations on Saturday rejected Gov. Ralph DLG Torres’ response to the subpoena issued by the panel, and told his legal counsel, Gil Birnbrich, that the governor may be held in contempt.
“As it stands,” the committee stated, “the governor’s failure to appear is already a factual and legally significant event with consequences.”
The subpoena “commanded” the governor to appear before the House committee at 10 a.m. on Friday, Dec. 10, 2021.
Birnbrich had asked to meet the House panel at 9:30 a.m. on the same day to discuss “an invitation to engage in a negotiation and accommodation process.”
The committee agreed to meet with Birnbrich prior to the scheduled hearing “in furtherance of the committee’s attempt to be reasonable.”
The 9:30 a.m. meeting took place with the governor’s Washington D.C.-based attorney, Ross Garber, attending via video conference.
Following the meeting, the committee chairwoman, Rep. Celina Babauta, said neither Birnbrich nor Garber “presented anything that the JGO committee had not already rejected in writing and in our previous discussions.”
She said the lawyers’ “attempt to rehash the same meritless objections was extremely disappointing. The governor’s legal counsel…repeated his previously rejected suggestion that the JGO submit its questions to the governor in writing so that the governor could respond in writing.”
In a further attempt to be accommodating, she said the committee asked if the governor “would be inclined to testify voluntarily and cooperatively, as he is legally mandated to do under 1 CMC Section 1309, but still under oath, at 1:30 p.m. instead of 10:30 a.m.”
She said instead of immediately taking this proposal, Garber “spent a considerable amount of time asking for the JGO to extend the offer to Monday, December 13, 2021.”
“Because this would mean that the governor would no longer appear on December 10,” Babauta added, the committee rejected Garber’s proposal.
She noted the panel’s recent experience with the governor’s executive assistant, Frances “Kai” Dela Cruz, and her legal counsel, Viola Alepuyo who “after the committee’s professional courtesy to allow the rescheduling of hearings…later had the audacity to challenge the validity of the subpoena based on the new appearance date.”
The committee proceeded with the 10:30 a.m. hearing on Friday but neither the governor nor his lawyers showed up.
At around 12 noon, Babauta said her committee asked Garber “for any updates.”
Emailed response
At 3:02 p.m., she said Birnbrich emailed the following response:
1) Governor agrees to voluntarily meet with JGO chair to discuss agreed upon issues within the scope of the JGO inquiry. The governor’s testimony will not be under oath. Only the JGO chair from the committee shall attend and ask questions. Speaker of the House Villagomez will be invited to participate to facilitate a respectful and equal opportunity for discussion.
2) Meeting would be a mutually agreeable time and place.
3) Meeting would be broadcast to the public.
4) The committee would need to withdraw the subpoena.
5) The governor does not waive any rights, privileges or prerogatives, including but not limited to, any executive privileges.
JGO’s response
The committee then sent the following reply to Birnbrich:
1) The governor may already be held in contempt for failing to appear in accordance with his lawful subpoena. If he agrees to appear in the House chamber to testify voluntarily but under oath, on Tuesday, December 14, 2021 at 10:30 a.m., the JGO will waive his earlier failure to appear and decline to pursue any contempt charges for this violation. All JGO members shall be expected to attend and establish a quorum. The chairwoman will ensure that the governor is treated with respect and the utmost decorum, as with all prior witnesses. The Speaker respectfully declines to participate and facilitate this JGO matter as he has already delegated it under his authority. This is an investigation, and not merely a discussion.
2) The governor may not choose the time and place of the panel’s investigation. However, the JGO will be reasonable as to the time of hearing in the House chamber. The JGO is on recess until Monday, December 13, 2021 and it is currently scheduled to continue with its meeting on Tuesday, December 14, 2021 at 10:30 a.m. Accordingly, if the governor appears voluntarily to cooperate and testify under oath at the JGO’s scheduled meeting of Tuesday, December 14, 2021 at 10:30 a.m., the JGO will decline to pursue contempt charges for his earlier failure to appear.
3) All JGO hearings are broadcast to the public. Our broadcast will be conducted by the Legislative Bureau, a constitutionally mandated public entity with no political affiliation.
4) The subpoena cannot be withdrawn. If the governor had agreed to appear at 1:30 p.m. on December 10, 2021 as proposed by the JGO, the subpoena could have been withdrawn. As it stands, however, the governor’s failure to appear is already a factual and legally significant event with consequences.
5) The JGO duly notes that the governor “does not waive any rights, privileges or prerogatives including but not limited to any executive privileges,” and has already set forth its ruling herein that there are no rights, privileges, prerogatives or executive privileges that have any legal basis to challenge the subpoena in this matter.
Babauta reiterated that the governor’s legal counsel’s objection based on claims of immunity lacks legal merit. She said the subpoena has a legitimate legislative purpose, and that the JGO investigation and its subpoena are authorized by the CNMI Constitution, CNMI statutes and the House Rules of Procedure.
