WATCH: Governor’s assistant faces contempt charges

The CNMI House Judiciary and Governmental Operations Committee voted unanimously Tuesday afternoon for Speaker Edmund Villagomez to certify a contempt charge for the attorney general to pursue against Frances Dela Cruz, the governor’s longtime execute assistant, and Diann Torres’s first cousin.

“The House Standing on Judiciary & Governmental Operations voted today to hold Frances ‘Kai’ Dela Cruz in contempt for willful failure to testify pursuant to our subpoena,” chairwoman Celina Roberto Babauta wrote to Mr. Villagomez Tuesday night following her committee’s daylong proceedings. “Ms. Dela Cruz refused to answer any question the Committee posed, or even to state her name for the record.”

Indeed, Vice Speaker Blas Jonathan Attao repeatedly asked Ms. Dela Cruz to state her name for the record. She read a statement of objection to her subpoena to appear before the committee each time he asked her name.

Asked whether she would answer any of the committee’s questions by Ms. Babauta, Rep. Edwin Propst, and Rep. Tina Sablan, the governor’s aide responded with the same statement of objection.

Ms. Dela Cruz was commanded by subpoena to appear before the House JGO Committee several times to answer questions related to allegations of corruption made against her boss, Gov. Ralph Torres. Due to various procedural calamities caused by both her attorney – Viola Alepuyo – and the governor’s contracted lawyer, Ross Garber, her appearance was held up; until she was commanded by a second subpoena to appear Tuesday afternoon.

She was flanked by Ms. Alepuyo and Gil Birnbirch, the governor’s legal counsel. Asked by Ms. Sablan whether his presence was simply to intimidate Ms. Dela Cruz to do nothing but repeat her prepared statement, Mr. Birnbirch replied, “I am here to represent the interests of the office of the governor.”

“Why are you even still there?” Ms. Sablan shot back at the governor’s legal counsel. She joined the hearing via Zoom, as she is on Guam tending to her father’s post-medical care.

“Pursuant to 1 CMC § 1306(b), ‘[a]n investigating committee may, by majority vote of all its members, report to the legislative house by which it was established any instance of alleged contempt. The president or speaker shall certify a statement of the contempt under his or her signature as president or speaker, as the case may be, to the Attorney General who shall prosecute the offender in the Commonwealth Trial Court,'” Ms. Babauta wrote to the speaker today. “I am writing to formally request that you so certify and prompt the Attorney General to initiate prosecution.”

“The disrespect shown this Committee today implicates the dignity of the CNMI Legislature as a body, and its authority to employ compulsory process in service of its investigatory powers must be upheld,” Ms. Babauta wrote in her letter. “We cannot allow lawless flouting of the legislature’s authority to stand.”

The full text of Ms. Babauta’s letter, and the portion of the hearing, where the committee held a vote of contempt follow:

Dear Speaker Villagomez:

The House Standing Committee on Judiciary & Governmental Operations voted today to hold Frances “Kai” Dela Cruz in contempt for willful failure to testify pursuant to our subpoena.

1 CMC § 1306(a) provides that “[a] person shall be contempt” who “having appeared, fails or refuses to testify under oath or affirmation” or “[f]ails or refuses to answer any relevant question.”

Our subpoena called for Ms. Dela Cruz to appear before this Committee at 1:30 p.m. today, November 16, 2021, in connection with our investigation into the public expenditures of Governor Ralph Deleon Guerrero Torres. Ms. Dela Cruz refused to answer any question the Committee posed, or even to state her name for the record.

Instead, she read a prepared list of four objections. First, Ms. Dela Cruz cited 1 CMC § 1302(a), which reads as follows:

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 when, in their opinion, the giving of five days notice is not practicable; but if a shorter period of time is authorized, the person subpoenaed shall be given reasonable notice of the hearing, consistent with the particular circumstances involved.

The Committee so voted by roll call this afternoon, unanimously endorsing a shorter period as justified under the particular circumstances, namely that Ms. Dela Cruz had already been under subpoena for several weeks and was requested to come this morning at 10:30 a.m.
Second, she claimed executive privilege and testimonial immunity. 1 CMC § 1307(c) provides that “[a]ny witness shall have only those privileges against testifying or producing other evidence under subpoena duces tecum which are: (1) Authorized by the rules of evidence adopted by the Commonwealth Trial Court; (2) Required by N.M.I. Const. art. I or other law applicable in the Commonwealth.”

As a basis for this alleged immunity, counsel for the Office of the Governor has cited internal memoranda of the federal Department of Justice, which have been roundly rejected in all federal courts that have considered the issue. See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 106 (D.D.C. 2008) (rejecting former White House counsel’s assertion of absolute immunity from compelled congressional process); Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148 (D.D.C. 2019) (“To make the point as plain as possible, it is clear to this Court … that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist.”)

Third, Ms. Dela Cruz claimed the subpoena was overbroad as it broached topics outside the scope of her official duties. She presented no legal argument whatsoever as to why her personal knowledge of topics pertinent to our investigation must be connected to her official duties in order to be subject to subpoena, nor did she address how alleged testimonial immunity or executive privilege would apply to questions unrelated to her official duties.

Fourth, she asserted that the Committee lacked the legislative authority to pursue this investigation or use compulsory process therefor. But the United States Supreme Court in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) held that issuance of subpoenas pursuant to the legislative investigatory power “fell within the sphere of legitimate legislative activity.” Id. at 515.

Pursuant to 1 CMC § 1306(b), “[a]n investigating committee may, by majority vote of all its members, report to the legislative house by which it was established any instance of alleged contempt. The president or speaker shall certify a statement of the contempt under his or her signature as president or speaker, as the case may be, to the Attorney General who shall prosecute the offender in the Commonwealth Trial Court.”

I am writing to formally request that you so certify and prompt the Attorney General to initiate prosecution.

The disrespect shown this Committee today implicates the dignity of the CNMI Legislature as a body, and its authority to employ compulsory process in service of its investigatory powers must be upheld. We cannot allow lawless flouting of the legislature’s authority to stand.

Respectfully,

 

CELINA R. BABAUTA