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Lawmakers' subpoenas open new front in federal-state conflict

WASHINGTON—By asking that Terri Schiavo testify before Congress, lawmakers tried to give the brain-damaged woman the equivalent of witness protection, making anyone who interferes with her testimony subject to criminal penalties.

Senate Republican officials, in explaining why they requested that Schiavo appear at hearing, cited a criminal statute that makes it illegal to impede congressional investigations "corruptly, or by threats or force, or by any threatening letter or communication."

The tactic dates back to 1951 congressional investigations of organized crime, when Sen. Estes Kefauver of Tennessee called Mafia figures to testify in highly publicized hearings. The criminal penalties were intended to prevent organized crime figures from threatening those scheduled to testify.

But the legal consequences of the congressional action remain uncertain. The threat of criminal charges apparently did not deter whoever removed Schiavo's feeding tube, and it was not clear who would be subject to criminal penalties should Schiavo die before the congressional hearings are held. The decision on filing charges, which could result in a one-year prison sentence, would be up to the U.S. attorney in Tampa.

Michael Gerhardt, a constitutional scholar at the College of William & Mary School of Law, said the removal of Schiavo's feeding tube despite a subpoena for her appearance at a Senate hearing created a "massive conflict" that could end up in federal court. But he was unwilling to predict how such a situation might be resolved.

Congress's extraordinary involvement in the Florida case injected lawmakers into a dispute that has been in the courts for 10 years, aggravated already tense House-Senate relations, and put the House and Senate on a collision course with Florida's judicial system.

A Florida judge Friday rejected efforts by House Republicans to intervene in the case. That was not likely to stop other congressional efforts to change the course of the Schiavo case, however.

"Now we have the federal-state conflict in much sharper relief," Gerhardt said.

Over the past two days, as the deadline approached for removing Schiavo's feeding tube, lawmakers moved with remarkable speed to use the power of Congress to keep Schiavo alive.

Both the House and Senate passed measures Thursday to try to move the case into federal court, but the scope of the measures was widely different and there was no time to resolve the gap before the House had adjourned.

Rep. Tom Davis of Virginia, the Republican chairman of the House Government Reform Committee, then issued subpoenas on Friday for Schiavo and for administrators and physicians at the hospice where she has been nursed to appear at a hearing March 25.

In the Senate, Sen. Mike Enzi, chairman of the Health, Education, Labor and Pensions Committee, issued a letter requesting the appearance of Schiavo and her husband, Michael, at a Senate committee hearing March 28.

No one actually expects the Schiavos to appear at hearings. Both the House subpoena and the Senate request were delaying tactics designed to give Congress time to pass legislation that would force the case into federal court.

But whether additional time will allow the resolution of the differences is uncertain.

Legislation proposed by House Republicans would make sweeping changes in federal law, giving federal courts jurisdiction in any case involving incapacitated people who have not given advanced instructions about whether they should be offered sustenance.

Senators, however, were willing only to pass a so-called "private relief bill" that would have applied exclusively to Schiavo and would have not have altered federal law in other cases.

Republican leaders in the House and Senate worked through the day Friday to find common ground, but House Republicans showed little sign of budging from their position. Both the House and Senate are scheduled to be in session Monday, even though they had planned to begin their Easter recess.

House Majority Leader Tom DeLay, R-Texas, described the decision to remove Schiavo's feeding tube as "barbarism." DeLay cast the debate in partisan terms, blaming Democratic Sens. Barbara Boxer of California, Carl Levin of Michigan and Ron Wyden of Oregon for blocking the House version of the bill.

In an e-mail message Friday, however, Senate Majority Leader Bill Frist of Tennessee defended his Democratic colleagues. "House taking some shots at us, though we were here to do business all night," Frist said in an e-mail to Republicans in which he also praised Democrats and their leader, Sen. Harry Reid of Nevada. "Please try to stay above that frey (sic). Also Reid and senate dems have been helpful thruout (sic)."

In Florida, Michael Schiavo's lawyer, George Felos, called the House subpoena "odious," but he was especially harsh on Senate Democrats for even allowing any legislation affecting Schiavo to pass.

Democrats were clearly uncomfortable with any suggestion they had helped defeat legislation to keep Schiavo alive. Wyden Friday rejected Felos' characterization that he had helped defeat the legislation, saying he only wanted to be sure that any legislation would not affect Oregon's assisted suicide laws.

Eventually, Democrats agreed to pass a bill partly out of fear that the case could adversely affect the re-election hopes of Democratic Sen. Bill Nelson of Florida.

Nelson kept a low profile during the discussions, compared to Florida's other senator, Republican Mel Martinez, who was in the forefront of negotiations.

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(c) 2005, Knight Ridder/Tribune Information Services.

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