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Panel to Re-Subpoena Scanlon

The Senate Indian Affairs Committee plans to reissue a subpoena to former House aide Mike Scanlon after he refused to testify at last week’s hearings scrutinizing $66 million worth of deals he cut with tribal casino clients.

Because Scanlon avoided receiving the subpoena to testify, Sen. Ben Nighthorse Campbell (R-Colo.), the panel’s chairman, said that another, more open-ended subpoena would need to be drafted. Refusal to comply with that document, Campbell added, would lead to immediate contempt of Congress charges.

“He just dodged. I don’t care what his lawyers say,” Campbell said in an interview of the failed attempts to deliver the subpoena last week.

Campbell added that he will almost certainly hold one more hearing this year on the deals that Scanlon and former lobbyist Jack Abramoff cut with six American Indian tribes during a three-year period. If the ongoing committee investigation proceeds quickly enough, Campbell said he hopes to hold two hearings during the lame-duck session that is slated to follow the Nov. 2 elections.

Also, given that Campbell is retiring and both Sens. Daniel Inouye (D-Hawaii) and John McCain (R-Ariz.) — the other top members of the committee — face nominal re-election opposition this fall, the panel also could hold hearings later this month.

Last week’s hearings focused almost entirely on the propriety of charging so much money. The committee found that $66 million went to Scanlon’s public relations firm over three years, while $21 million of that haul was diverted to Abramoff. Another $18 million paid for Abramoff’s lobbying work for the tribes at his former employer, Greenberg Traurig, and countless millions went to a think tank and a charity set up by the men.

But the hearing barely touched on legal questions about the movement of millions of dollars among those entities. In addition, representatives from just two of the six tribes appeared before the panel, which is conducting one of the most extensive investigations in its relatively brief history.

Setting up a game of legalistic and political cat-and-mouse, the committee’s next chance to issue a subpoena to Scanlon comes Wednesday at its regularly scheduled business meeting. No agenda has been released for that meeting, but it’s likely to be the last time the full panel is assembled to approve any more subpoenas in the probe before Congress leaves for the recess on Oct. 8.

Scanlon’s lawyer, Steve Braga, said Friday that he had not yet been contacted by the committee about a second subpoena for his testimony, noting problems with delivery of the last subpoena. While Braga accepted an earlier subpoena in June for documents related to the probe, he never specified he was allowed to accept a subpoena for actual testimony.

This left the committee scrambling early last week to try to deliver the subpoena to Scanlon at his home near the Delaware beaches — an attempt that proved unsuccessful. As Abramoff pleaded the Fifth Amendment and listened to Senators berate him for his actions, Scanlon apparently watched Wednesday’s hearing on C-SPAN’s Web site from his home.

Braga said he still is not authorized to accept a subpoena for Scanlon’s testimony, and would do so only after talking to the panel’s aides about the “logistics” of the hearing. “Would Mike be testifying alone, would he be testifying with others, would he be first, would he be last,” Braga asked.

“If it’s reasonable and it makes sense and we can work out appropriate arrangements,” he added, “of course we’d accept service [of the subpoena] through me.”

Braga indicated that if Scanlon doesn’t like the terms of the testimony, however, his client — the former spokesman for Rep. Tom DeLay (R-Texas) — would not let him accept the subpoena, leaving the committee in a position of trying to get U.S. marshals to personally find Scanlon and serve him.

Braga’s statements Friday are a slight modification of a letter he sent to Indian Affairs on Sept. 24, in which he cited the ongoing federal grand jury investigation into the Abramoff-Scanlon dealings for Scanlon’s permanent refusal to give testimony.

“Even if Mr. Scanlon was to be properly served with a subpoena commanding his appearance at any committee hearing, until the Department of Justice investigation is concluded he would have no choice but to exercise his constitutional rights to respectfully decline to testify,” Braga wrote.

Campbell said the only mistake that the committee made was in limiting its subpoena to one day — last Wednesday’s hearing. Because that day has now passed, the subpoena is legally moot. A new subpoena will be issued, and the parameters of its timeline will be broader, so that whenever the committee delivers it to him personally, it will be enforceable, he said.

If Scanlon is eventually served the subpoena, the most likely outcome would be for him to appear before the committee in a deposition or a public hearing and then plead the Fifth Amendment, as Abramoff did.

Otherwise, he runs the risk of contempt of Congress charges, which McCain is already pushing for as early as possible. Until he actually receives a subpoena and defies it, however, Scanlon is not liable for contempt charges.

Those charges would have to be approved by the committee, and then receive a majority vote in the Senate. At that point, a federal judge or federal prosecutor would have to try to enforce the sanctions.

Braga said that process is still not necessary. “Hopefully we can work out a reasonable arrangement and take it from there,” he said.

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