by Sven Magnussen
In 1951, Roger Touhy, an inmate of the Illinois State Penitentiary, sought the testimony of the U.S. government agent in charge of the FBI, Chicago. Touhy was seeking evidence for use in a federal case that his criminal conviction had been obtained by fraud. The government agent refused to provide information citing a memo from the Department of Justice under 5 U.S.C. § 301. The Supreme Court held that the statute was constitutional and a proper exercise of executive authority.
Since Touhy, each agency in the Executive Branch has implemented regulations concerning the release of information by subordinates. Information from the various agencies must meet each agency's Touhy regulations before a subpoena or court demand for production will be honored. Testimony by DHS employees is governed by 6 C.F.R. § 5.41 to § 5.45. Only the Office of the General Counsel is authorized to receive and accept subpoenas, production demands and requests directed to the Secretary, the Department, or any component thereof, or its employees, whether civil or criminal in nature. If information is sought, through testimony or production of documents, by a request or demand, the party seeking such release or testimony must write and specify the nature and relevance of the information sought. A demand for testimony by an ICE or CBP agent should therefore be addressed to the Office of General Counsel for DHS, with copies to the United States Attorney.
If the agency refuses to comply, the next step is to object to the application of Touhy regulations. Two objections could be it violates the rules of compulsory production and reciprocal discovery. To preserve an objection for an appeal, the objection must be in writing and contain an offer of proof. Proof Obama has an immigration file with DHS is available in an AP photograph of Barry Soetoro's grade school enrollment where he was enrolled as an Indonesian National or Obama's biography presented with a published book which stated Obama was born in Kenya and raised in Indonesia and Hawaii. If Obama is indicted in a criminal case, then Touhy regulations do not apply.
Chief Judge Royce Lambreth of the United State District Court for the District of Columbia opined "... Touhy is applicable only in cases where the United States is not a party to the original proceeding." See Alexander v. FBI. Judge Lambreth viewed Touhy narrowly, as “a subordinate government official will not be compelled to testify or produce documents in private litigation."
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