An Osage Nation tribal court judge has quashed the 2011 Congressional subpoena served to former Treasurer William Kemble in which the Congress demanded six months worth of emails from Kemble’s work computer concerning any aspect of his job.
Trial Court Judge Marvin Stepson ruled the written Congressional subpoena ordering Kemble to provide the emails (from February to August 2011) is “vague” and “thus imposes an undue burden or hardship upon the Treasurer” to produce the emails.
The Aug. 2 subpoena served to Kemble came in the wake of a Congressional investigation of accounting practices and policy and procedure changes made during Kemble’s tenure. The Congress received tips of potential problems within the Accounting Department and the Treasurer’s Office, which led to the investigation by its government operations committee. That committee interviewed Kemble and several accounting workers before issuing the Aug. 2 subpoena for nine items of documents relating to the investigation.
Kemble responded to eight of those subpoena items but asked the court to quash the ninth item which is: “All of your e-mails from any Osage Nation owned computer from February 1, 2011 to the present day concerning any aspect of your job.”
In his Feb. 15 ruling, Stepson said the subpoena “would require the Treasurer to expend an unreasonable amount of time individually reviewing each email for relevance and to remove those containing privileged material, and thus imposes an undue burden or hardship upon the Treasurer.”
Kemble, who resigned Feb. 9, challenged the subpoena arguing that sifting through 3,100-plus emails he sent or received during the six-month period would be a burden. Through court documents, Kemble asked the court to quash the Congressional subpoena in September, which led to a Jan. 26 court hearing on the quash motion.
Stepson also said the subpoena item “is impermissibly vague, in that the demand for every email ‘concerning any aspect of [his] job’ leaves the Treasurer to try to interpret the specific intent of Congress, which could subject him to contempt sanctions if his interpretation is too narrow, and which would require unnecessary production of extra material if his interpretation is too broad.”
Congress and its committees have the authority to issue subpoenas for documents and testimony of witnesses under the Congressional Subpoena Act (ONCA 07-48). Affected individuals may contest the subpoena in court, which has the authority to modify or quash the subpoena if it falls within four pieces of criteria including: “Subjects a person (to an) undue burden or hardship.”
Stepson said the court “is unable to modify the Subpoena in such a way as to achieve the goals of the Congress and still safeguard the rights of the Treasurer.”
During the Jan. 26 hearing, Kemble’s attorney, Daniel Lewerenz, said Kemble would have to review 3,145 emails (sent and received during the six-month period) to determine which are subject to the subpoena and which are considered privileged communications exempt from subpoenas. According to ONCA 07-48 communications with the Principal Chief and Assistant Principal Chief are considered executive privilege and are not subject to the Congressional subpoena law.
Lewerenz also said in court ONCA 07-48 does not address documents containing information considered attorney-client privilege. Lewerenz said Kemble could spend up to 52 hours examining each email to determine whether its contents concern any aspect of his job, which does not include time for performing job duties. In an affidavit to the court, Kemble said he would not be able to delegate the email review task to anyone else because of the sensitive nature of privileged communications.
Congressional attorney Loyed “Trey” Gill, who represented the Legislative Branch in the case, said he was “disappointed in the decision.”
In an email, Kemble commented on the verdict. "I believe the subpoena motion was for 'documents mentioned during (the July 2011) testimony.' This motion seems to imply that the testimony was not sufficient even though all individuals swore an oath to tell the truth; thus, in my opinion, the motion was unnecessarily made and would've created a (sic) unnecessary burden upon the Nation, as opposed to just the Treasurer since I had involvement in everyday business of the Nation.”
The July 2011 special session held for the subpoena interviews and investigation conducted by the government operations committee relied on testimony and records from 10 accounting staffers and Kemble. It’s the first time in the reformed government’s history that Congress has sought subpoenas at that size. The testimony heard in the July 14-15 subpoena interviews resulted in the requesting of the nine items of documents.
“I thought this motion and the entire Hearing was not only burdensome upon [the] Treasury Department personnel and costly to the Nation but also unnecessary since I offered to discuss any issues, privately or publicly, with Congress members prior to the Session in which the motion was made (Subpoena Session),” Kemble said. “I firmly believe certain members of Congress should have made better preliminary 'due diligence' efforts to gain information from either the Principal Chief's office or myself (especially when I offered it without a subpoena) without generating the unnecessary costs. I believe it was stated within that 'Subpoena' Session that efforts had been made, however the individual that made that motion did not explain the failed exhausted-efforts. Under the concept of transparency, I would think that the Motioner should've explain the failed exhausted-efforts to the Osage Public; thus explicitly justifying the need to generate the costs that were incurred by the Osage Public.”
On July 5, Congress convened for a special session and voted to have Congressional Speaker Jerri Jean Branstetter sign and issue the subpoenas for the government operations committee investigation. During the session, Congresswoman Shannon Edwards asked if efforts had previously been made to address the issues surrounding the accounting practices before the subpoenas were requested. Congressman Raymond Red Corn, who is the Second Speaker, responded with a “yes.”
“And those (efforts) were unsuccessful,” Edwards asked.
“That’s correct – in my view they were unsuccessful in terms of timings,” Red Corn said.
Kemble ended his comment with: “I'm glad to see that the Nation's Judicial Branch acknowledges the undue burdenship that Congress was attempting and I hope our Congress learns from the Judicial Branch's verdict for any future considerations to issue subpoenas (sic) upon our government's officials and employees. Ultimately, I kept the Chief's Office advised of Treasury Department affairs, had offered a meeting to any interested Congress members prior to the Subpoena Session, and made efforts to safeguard the Nation's financial interests as the Nation's Treasurer which I hope shows my integrity to the Osage Public."
Kemble resigned amid a Congressional Special Session called to investigate whether Congressional allegations directed at him warrant a removal trial. Those allegations are a mix of newer accounting concerns raised by Congress and the same ones raised in the 2011 Congressional investigation.
In January, Congress voted to form a Select Committee of Inquiry to investigate the allegations, but the committee has since disbanded in wake of Kemble’s resignation.