The House of Representatives Judiciary and Governmental Operations Committee held Frances M. Dela Cruz in criminal contempt at the JGO hearing yesterday after she stood her ground and refused to answer questions, repeatedly reading instead a statement citing her reasons for objecting to the subpoena issued her.
Dela Cruz, who is the executive assistant to Gov. Ralph DLG Torres, was not arrested, though. JGO chair Rep. Celina R. Babauta (D-Saipan) excused Dela Cruz until further notice, after which the committee members who were present unanimously voted a motion to hold her in contempt.
After the voting, Babauta sent a letter to House Speaker Edmund S. Villagomez (Ind-Saipan) to certify that they have found Dela Cruz in contempt.
Dela Cruz appeared before the committee with her counsel, Viola Alepuyo. Gilbert Birnbrich also appeared at the hearing as counsel for the Office of the Governor.
Babauta later told Saipan Tribune that the Legislature will not arrest Dela Cruz.
Those who voted to hold Dela Cruz in contempt were Reps. Celina R. Babauta (D-Saipan), Edwin K. Propst (D-Saipan), Richard T. Lizama (D-Saipan), Donald M. Manglona (Ind-Rota), and vice speaker Blas Jonathan Attao (R-Saipan). It was Lizama who made the motion.
Rep. Christina E. Sablan (D-Saipan), who joined the hearing virtually, was still considered absent as she is off-island. Rep. Vicente Camacho (D-Saipan) was also absent.
To Attao’s question to state her name and position, Dela Cruz stated her name and then her objection to the subpoena, which she said was dated that day at 12:42pm, less than an hour before the hearing.
Dela Cruz said the subpoena must comply with the Commonwealth Code pertaining to notice to witnesses. She said service of a subpoena requiring the attendance of a person at a hearing of an investigating committee shall be made at least five days prior to the date of the hearing unless a shorter period of time is authorized by majority vote of all the members of the committee in a particular instance.
Dela Cruz said she objects to the subpoena because she and her employer raised testimonial immunity and executive privilege as provided under the Constitutional Separation of Powers doctrine.
She said the subpoena is overbroad in that it seeks information unrelated to any of her or the governor’s official duties.
She said the subpoena also exceeds the scope of legislative authority and power.
She kept repeating this by reading a prepared statement in response to all questions raised by Propst, Babauta, and Sablan.
Earlier that day, in the morning, only Alepuyo and Birnbrich appeared at the scheduled JGO hearing. Alepuyo noted that Dela Cruz did not appear because there is currently no operative subpoena compelling her appearance that day or any other time.
Babauta said the original subpoena that had summoned Dela Cruz to appear had not been quashed. The JGO, however, voted to issue another subpoena to compel her to appear at the hearing at 1:30pm later that day. Dela Cruz was then served with the second subpoena and she appeared at the afternoon hearing.
In an interview after the hearing, Alepuyo said it’s “very unfortunate” that it has come to this contempt citation because her client, Dela Cruz, is stuck between a rock and a hard place.
Alepuyo said the Executive Branch, the Governor’s Office, and their attorneys, Ross Garber and Birnbrich, have raised issues of constitutional executive privilege and testimonial immunities on behalf of their employee.
She said they have asked time and time again for the JGO to resolve that issue and that Dela Cruz will respect whatever decision is made between the Executive Branch and the JGO.
“But it needs to be resolved, and it’s not yet resolved,” the lawyer pointed out.
Alepuyo said Dela Cruz wants to do what is right and when she submitted an affidavit to the JGO, the JGO said the affidavit was not compliant and unresponsive. If that were so, then the JGO should tell them why, Alepuyo said, and give them follow-up questions that they will gladly answer.
Alepuyo said Babauta noted that she (Alepuyo) wrote a letter to her at 1am yesterday, but she (Babauta) did not acknowledge that she made that letter because they did not hear a response from her (Babauta).
“Why would you send a letter at one o’clock in the morning? Because I was waiting for a response,” she said.
Alepuyo said to go this route of contempt just seems “very extreme.” She said it’s “very unfortunate” that Dela Cruz is being bullied by the JGO and harassed when all she wants to do is to do her job.
Before the voting, Babauta said Torres has told the media time and time again that he is willing to answer questions and even presumed to give the JGO a deadline to give him questions in writing.
At the same time, Babauta said, Torres’ attorneys “uses every trick in the book” to delay the JGO investigation.
She said Dela Cruz was subpoenaed to appear weeks ago and out of respect for the Executive Branch, they accommodated her with the option to give them information in writing.
Babauta also accused Torres’ lawyers of repeatedly giving advice to stonewall and object to these hearings. “They have claimed privileges and immunities with no legal basis and they have even threatened to sue the members of this committee,” she said.
Babauta said they enforce their lawful subpoenas as the Legislature is a separate and co-equal branch of the government. “We will not be stymied or intimidated, and we will get to the bottom of this,” she said.
Propst likened what is happening to Dela Cruz to Torres throwing her under the bus, “to allow her to be a pawn in an investigation that has nothing to do with her whatsoever except for her testimonials and information that she can provide.”
He also took issue with Torres’ decision to hire lawyers like Ross Garber from Washington, D.C. and David G. Banes and his associates. “And he states he has nothing to hide. Who hires $200,000 worth of lawyers when he has nothing to hide? Only somebody who has plenty to hide,” he said.
Sablan said the record shows that Dela Cruz failed to appear yesterday morning as commanded pursuant to the subpoena she received weeks ago.
Sablan said when she did appear yesterday afternoon for the second subpoena, she refused to answer and merely read a prepared statement of objection even to most simple questions over and over.
She said even the part of Dela Cruz’s objection that cites that there are subject outside the scope of her official duties would not or could not explain why any of those objections would be any reasonable basis to invoke immunity or executive privilege.
She said Dela Cruz’s legal counsel could also not explain it.
“This is unacceptable, unlawful conduct,” she said.
Sablan said she believes at this juncture they have no other choice but to respond in accordance with the law and hold Dela Cruz in contempt.
In her email yesterday at 1am to Babauta, Alepuyo clarified that Dela Cruz invokes her constitutional testimonial immunity, executive privilege, and any other rights she may have now or will have in the future.
Alepuyo said to date, the JGO Committee has not approved or issued any further subpoena to Dela Cruz.
The lawyer said she has not received a response to her letter to the JGO Committee chair last Thursday, but hope to continue their dialogue.