Judicial Watch, Inc. v. Adam B. Schiff ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 19-cv-3790 (BAH)
v.
Chief Judge Beryl A. Howell
ADAM B. SCHIFF, Chairman, U.S. House
Permanent Select Committee on Intelligence,
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc. asserts that the common-law right of access requires
defendants, the House Permanent Select Committee on Intelligence (“HPSCI” or “Committee”)
and Adam B. Schiff, in his capacity as HPSCI’s Chairman, to disclose subpoenas issued in
September 2019, and associated responses received, by HPSCI to telecommunications providers
as part of the Committee’s impeachment inquiry into activities of President Donald J. Trump.
See generally Compl., ECF No. 1. According to plaintiff, defendants’ failure to produce, upon
request, the requested subpoenas and responses violates the common-law right of public access,
id. ¶ 14, which gives “members of the public . . . the right to examine government records when
the public interest in disclosure is greater than that in government secrecy,” id. ¶ 7. Defendants
move to dismiss the complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), Defs.’ Mot. Dismiss (“Defs.’ Mot.”), ECF No. 9, arguing both that sovereign immunity
bars the exercise of jurisdiction here and that no valid claim is presented, Defs.’ Mem. Supp.
Mot. Dismiss (“Defs.’ Mem.”) at 3–4, ECF No. 9-1. For the reasons explained below,
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defendants’ motion is granted for lack of jurisdiction, requiring dismissal of the complaint with
prejudice.
I. BACKGROUND
On September 24, 2019, Speaker Nancy Pelosi “announced that the House of
Representatives would continue with its impeachment inquiry into President Donald J. Trump.”
Defs.’ Mem. at 1–2 (citing Press Release, Speaker Nancy Pelosi, Pelosi Remarks Announcing
Impeachment Inquiry (Sept. 24, 2019), available at https://www.speaker.gov/newsroom/92419-
0). Roughly one month later, on October 31, 2019, the House adopted House Resolution 660,
“which (i) established the procedures for HPSCI to continue its ongoing investigation in open
hearings, (ii) authorized public release of deposition transcripts, (iii) required HPSCI to prepare
and issue a report and make recommendations to the Committee on the Judiciary, and (iv)
provided additional procedures in furtherance of the impeachment inquiry, including for the
Committee on the Judiciary.” Id. at 2 (citing H.R. 660, 116th Cong. (2019); H.R. REP. NO. 116-
266, at 2 (2019)). “As part of its impeachment investigation, . . . HPSCI issued subpoenas to
telecommunications providers for certain records,” and obtained in response information that
“furthered [HPSCI’s] investigation by establishing connections—specifically, telephone
contacts—between relevant individuals at key points in time.” Id. Some of this information was
subsequently made public by HPSCI in a published report. See HOUSE PERMANENT SELECT
COMMITTEE ON INTELLIGENCE, 116TH CONG., THE TRUMP-UKRAINE IMPEACHMENT INQUIRY
REPORT (Dec. 2019), available at https://intelligence.house.gov/uploadedfiles/the_trump-
ukraine_impeachment_inquiry_report.pdf.
According to plaintiff, the subscribers of the telephone records subject to the subpoenas
at issue include “ranking Intelligence Committee Republican Devin Nunes, President Donald J.
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Trump attorneys Rudy Giuliani and Jay Sekulow, journalist John Solomon, the White House,
and others.” Pl.’s Opp’n Defs.’ Mot. Dismiss (“Pl.’s Opp’n”) at 1, ECF No. 11. This use of
subpoena power is, in plaintiff’s view, “an unprecedented use of government surveillance power
for allegedly partisan purposes,” id. at 1, that “raise[s] important questions regarding possible
violation[s] of the attorney-client privilege of the President, the First Amendment rights of a
journalist, and a purportedly unbounded power by Congress to monitor the telephone calls of any
citizen,” id. at 1–2.
“[T]o shed light on these questions,” id. at 2, on December 6, 2019, plaintiff requested
from defendants copies of “[a]ll subpoenas issued by the House Permanent Select Committee on
Intelligence on or about September 30, 2019 to any telecommunications provider including, but
not limited to AT&T, Inc., for records of telephone calls of any individuals,” and “[a]ll responses
received to the above-referenced subpoenas,” Compl. ¶ 8; Pl.’s Opp’n at 2. Defendants did not
respond to this request, Compl. ¶ 9, prompting plaintiff’s initiation, on December 20, 2019, of
this lawsuit to require disclosure by “issu[ing] a writ of mandamus compelling Defendants to
carry out their non-discretionary duty to make all of the requested records available,” id. at 4.
Defendants’ pending motion to dismiss is now ripe for review.
II. LEGAL STANDARD
“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited
subject-matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which
Congress grants jurisdiction.’” Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020)
(alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012));
see Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are courts of limited
jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” (quoting
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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). Federal courts therefore
have a corresponding “independent obligation to ensure that they do not exceed the scope of
their jurisdiction” and “must raise and decide jurisdictional questions that the parties either
overlook or elect not to press.” Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Absent
subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp.,
546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); FED. R. CIV.
P. 12(h)(3).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
plaintiff bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim
at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When considering a motion to
dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual
allegations contained in the complaint and “‘construe the complaint liberally, granting plaintiff
the benefit of all inferences that can be derived from the facts alleged’ and upon such facts
determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011) (citations omitted) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). The
court need not accept inferences drawn by the plaintiff, however, if those inferences are
unsupported by facts alleged in the complaint or amount merely to legal conclusions. See
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
III. DISCUSSION
Defendants argue that the Court lacks jurisdiction over this case for two reasons: first,
“the doctrine of sovereign immunity deprives the Court of jurisdiction over the House
Defendants,” Defs.’ Mem. at 3, and second, “given that the records sought by Plaintiff involve
matters pursued and obtained by the House Defendants as part of the House-authorized
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impeachment inquiry, they are absolutely protected by the Speech or Debate Clause,” id. (citing
U.S. CONST., art. I, § 6, cl. 1). Plaintiff counters that neither form of immunity applies. See Pl.’s
Opp’n at 3–5. Each ground for immunity is examined in turn.1
A. Sovereign Immunity
The Supreme Court has stated that “[t]he general rule is that a suit is against the
sovereign if the judgment sought would expend itself on the public treasury or domain, or
interfere with the public administration or if the effect of the judgment would be to restrain the
Government from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620 (1963)
(internal quotations and citations omitted). For such suits, “[t]he basic rule of federal sovereign
immunity is that the United States cannot be sued at all without the consent of Congress.” Block
v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983); see also FDIC v.
Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”) (citations omitted); United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.”); Shuler v. United States, 531 F.3d
930, 932 (D.C. Cir. 2008) (quoting Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983)) (“‘The
United States is protected from unconsented suit under the ancient common law doctrine of
sovereign immunity.’”). Any “waiver of the Federal Government’s sovereign immunity must be
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Defendants also argue that plaintiff fails to state a claim, warranting dismissal under Federal Rule of Civil
Procedure 12(b)(6), because “Congress has created a comprehensive scheme for the review of government
records—the Freedom of Information Act (FOIA)—that preempts the common law right sought to be vindicated by
this litigation,” Defs.’ Mem. at 3, and “the records Plaintiff seeks to review are not ‘public records’ and, therefore,
are not subject to the common law right of public access,” id. at 3–4. Except to the extent these arguments are
intertwined with the jurisdictional analysis, see infra Part III.A.2(b), they need not be addressed since the complaint
is dismissed for lack of subject matter jurisdiction. See Al-Tamimi v. Adelson, 916 F.3d 1, 7 (D.C. Cir. 2019)
(finding that district court properly considered jurisdictional issue “before considering whether dismissal for failure
to state a claim was appropriate under Fed. R. Civ. P. 12(b)(6)”); see also Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)) (“‘Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact
and dismissing the cause.’”).
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unequivocally expressed in statutory text and will not be implied.” Lane v. Pena, 518 U.S. 187,
192 (1996) (citations omitted).
Sovereign immunity extends to Congress when “sued as a branch of the government,”
McLean v. United States, 566 F.3d 391, 401 (4th Cir. 2009), abrogated on other grounds by
Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020), and makes members of Congress “immune
from liability for their actions within the legislative sphere,” id. Thus, the doctrine of sovereign
immunity generally “forecloses . . . claims against the House of Representatives and Senate as
institutions,” and against members of both congressional houses “acting in their official
capacities,” since “an ‘official capacity’ suit is treated as a suit against a government entity.”
Rockefeller v. Bingaman, 234 F. App’x 852, 855 (10th Cir. 2007) (quoting Rockefeller v.
Bingaman, No. CIV-06-0198, 2006 WL 4061183, at *3 (D.N.M. Sept. 20, 2006)) (citing Keener
v. Cong. of the U.S., 467 F.2d 952, 953 (5th Cir. 1972)); see also Cofield v. United States, 64 F.
Supp. 3d 206, 213–14 (D.D.C. 2014) (“[S]overeign immunity bars any claim for money damages
against the United States (including the U.S. Senate) and its agencies.”).
Here, plaintiff acknowledges that this suit against a House Committee and a House
member is for records “generated pursuant to the Committee’s impeachment investigation.”
Compl. ¶ 17; id. ¶ 10. Notwithstanding the “official capacity” in which the requested records
were “generated,” plaintiff disputes that sovereign immunity bars this suit because, instead of
seeking monetary damages, “Plaintiff’s complaint specifically seeks mandamus relief under 28
U.S.C. § 1361.” Pl.’s Opp’n at 3. As such, plaintiff contends—in four brief sentences in its
seven-page opposition to dismissal—that the so-called Larson-Dugan exception to sovereign
immunity applies to permit this suit to go forward. Id. (first citing Larson v. Domestic &
Foreign Com. Corp., 337 U.S. 682, 689 (1949); then citing Dugan, 372 U.S. at 621–22; and then
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citing Wash. Legal Found. v. U.S. Sent’g Comm’n (“WLF II”), 89 F.3d 897, 901–02 (D.C. Cir.
1996)). As the analysis that follows shows, even upon application of the Larson-Dugan
exception to sovereign immunity, the disclosure of the requested records is not legally required.
1. Application of the Larson-Dugan Exception
In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the plaintiff
sued the head of the War Assets Administration, not for money damages, but for specific
performance of the delivery of surplus coal in accordance with plaintiff’s contract with the
government, id. at 684–85. Finding that the Administrator’s action in refusing the coal shipment
to plaintiff was not unconstitutional or ultra vires conduct outside the scope of the
Administrator’s authority, nor contrary to statute or order, id. at 703, the Supreme Court
concluded the Administrator’s action “was, therefore, inescapably the action of the United States
and the effort to enjoin it must fail as an effort to enjoin the United States,” id.; see also id. at
688 (noting suit would be barred “not because it is a suit against an officer of the Government,
but because it is, in substance, a suit against the Government over which the court, in the absence
of consent, has no jurisdiction”). The Court thereby clarified, and made explicit in Dugan v.
Rank, 372 U.S. 609 (1963), an exception to sovereign immunity in actions seeking specific relief
for “(1) action by [government] officers beyond their statutory powers [or] (2) even though
within the scope of their authority, the powers themselves or the manner in which they are
exercised are constitutionally void,” id. at 621–22. “In either of such cases the officer’s action
‘can be made the basis of a suit for specific relief against the officer as an individual . . . .’” Id.
at 622 (quoting Malone v. Bowdoin, 369 U.S. 643, 647 (1962)); see also Dalton v. Specter, 511
U.S. 462, 472 (1994)) (quoting Larson, 337 U.S. at 691 n.11) (summarizing Larson as holding
“that sovereign immunity would not shield an executive officer from suit if the officer acted
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either ‘unconstitutionally or beyond his statutory powers’” (emphasis in original)); Pollack v.
Hogan, 703 F.3d 117, 119–21 (D.C. Cir. 2012); id. at 120 (quoting Larson, 337 U.S. at 689)
(“Under [the Larson-Dugan] exception, ‘suits for specific relief against officers of the sovereign’
allegedly acting ‘beyond statutory authority or unconstitutionally’ are not barred by sovereign
immunity.”).
Defendants contend that sovereign immunity bars this suit and that the Larson-Dugan
exception is inapplicable for three reasons. First, defendants assert that the mandamus statute, 28
U.S.C. § 1361, “does not by itself waive sovereign immunity.” Defs.’ Reply Supp. Defs.’ Mot.
Dismiss (“Defs.’ Reply”) at 2, ECF No. 12 (quoting WLF II, 89 F.3d at 901) (citing Pub. Citizen
v. Kantor, 864 F. Supp. 208, 213 (D.D.C.1994), abrogated on other grounds by Chamber of
Com. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) (“The generally accepted rule is that § 1361 does
not constitute a waiver of sovereign immunity by the United States.”)). True enough, but that
assertion merely begs the question. If the Larson-Dugan exception does apply, the law in this
Circuit is well-settled that “[n]o separate waiver of sovereign immunity is required to seek a writ
of mandamus to compel an official to perform a duty required in his official capacity.” Fornaro
v. James, 416 F.3d 63, 69 (D.C. Cir. 2005); see also WLF II, 89 F.3d at 901 (citing Reich, 74
F.3d at 1329) (“If a plaintiff seeks a writ of mandamus to force a public official to perform a duty
imposed upon him in his official capacity, however, no separate waiver of sovereign immunity is
needed.”); Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (holding that “sovereign
immunity does not act as a bar to our exercising jurisdiction” since Larson-Dugan exception
applies “and hence no waiver of sovereign immunity is required here.”).
Second, defendants argue, Defs.’ Reply at 2, that plaintiff fails to meet the “necessary
prerequisites for this court to exercise its mandamus jurisdiction,” Swan, 100 F.3d at 976 n.1,
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which requires that: “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty
to act; and (3) there is no other adequate remedy available to the plaintiff,” id. (quoting Am.
Cetacean Soc'y v. Baldrige, 768 F.2d 426, 433 (D.C. Cir. 1985), rev'd on other grounds sub nom.
Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221 (1986)). Defendants primarily target
the second mandamus prong, stating that “Plaintiff cannot demonstrate that either Congressman
Schiff or the Committee ‘has a clear, nondiscretionary duty to act.’” Defs.’ Reply at 2 (quoting
Sluss v. U.S. Citizenship & Immigr. Servs., 899 F. Supp. 2d 37, 41 (D.D.C. 2012)) (citing, as
support, RULES OF THE U.S. HOUSE OF REPRESENTATIVES, 116th Cong., Rule X.11(g)(1) (2019),
which mandates a vote of the full Committee for public disclosures of “any information in its
possession”).2 Again, this argument misses the mark. Should the common-law right of access
apply to the requested records, then HPSCI’s exercise of discretion (upon majority vote of
Committee members) whether to release those records to plaintiff would be cabined accordingly
by the legal duty or obligation to fulfill plaintiff’s request. Cf. Larson., 337 U.S. at 691(concluding sovereign immunity barred suit and exception was inapplicable, absent, in part, “any
allegation of a limitation on the [government official]'s delegated power to refuse shipment in
cases in which he believed the United States was not obliged to deliver”).
Finally, defendants insist that the Larson-Dugan exception is inapplicable because
plaintiff presents no claim that the challenged action of “either of the House defendants” was
2
Defendants do not contest plaintiff’s lack of another adequate remedy, but do contend that “it is far from
clear that Plaintiff satisfies the [first mandamus] requirement that it ‘ha[ve] a clear and indisputable right to relief,’”
Defs.’ Reply at 2 n.1 (quoting Sluss v. U.S. Citizenship & Immigr. Servs., 899 F. Supp. 2d 37, 41 (D.D.C. 2012)),
because “[t]here exist serious separation-of-powers questions regarding whether a writ of mandamus can be issued
against either a Congressional committee or a sitting Member of Congress acting pursuant to his constitutional
prerogatives,” id. This question need not be resolved because, as set forth infra Part III.A.2, the common-law right
of public access does not impose a clear duty on defendants. See Heckler v. Ringer, 466 U.S. 602, 616 (1984) (first
citing Kerr v. U.S. Dist. Court, 426 U.S. 394, 402–03 (1976); and then citing United States ex rel. Girard Tr. Co. v.
Helvering, 301 U.S. 540, 543–44 (1937)) (finding that 28 U.S.C. § 1361 “provides a remedy for a plaintiff . . . only
if the defendant owes him a clear nondiscretionary duty”).
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unconstitutional, ultra vires, or beyond statutory authority. Defs.’ Mem. at 4–5; Defs.’ Reply at
3. Indeed, absolutely no allegation is made—and no evidence suggests—that HPSCI or its
chairman acted ultra vires or in a manner contrary to the U.S. Constitution or a statute in issuing
the subpoenas at issue, or receiving the responses thereto, in connection with the impeachment
inquiry. To the contrary, as defendants point out, “the Committee’s investigation—led by
Congressman Schiff in his capacity as Chairman of the Committee—and the subpoenas it issued
were clearly and expressly authorized by the full House and entirely consistent with its standing
rules.” Defs.’ Reply at 4.
At the same time, defendants’ argument that the Larson-Dugan exception is inapplicable
because “the powers of House Defendants are simply not ‘limited by statute’” and, thus, “no
statutory ‘limitations’ on the issuance of subpoenas by a House committee during an
investigation” exist, Defs.’ Reply at 3, is forestalled by binding D.C. Circuit precedent. In WLF
II, plaintiffs sought, pursuant to the common-law right of public access to government records,
disclosure of documents “compiled or created by an advisory committee established by the
United States Sentencing Commission,” 89 F. 3d at 898–99. In the D.C. Circuit’s analysis, the
relevant “duty” owed by the defendants in the case stemmed from the common-law right itself,
not a separate statute or regulation. Id. at 901. Whether the Larson-Dugan exception to
sovereign immunity applies “depends upon whether the Government has a duty to the plaintiff,
viz. to allow it access to certain government records.” Id. As a result, applicability of the
exception turns first on the existence of the duty, and the application of sovereign immunity
merges with the claimed duty to disclose asserted in the petition for mandamus. The D.C.
Circuit explained: “the question of jurisdiction merges with the merits,” triggering an assessment
of the validity of plaintiff’s claim under the common-law right of access. Id. at 902.
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Likewise, here, while defendants are correct that no independent statutory duty requires
disclosure of the requested subpoenas, see Defs.’ Reply at 3–4, the relevant duty, as in WLF II, is
that potentially created by the common-law right itself. Applicability of the Larson-Dugan
exception thus turns on—or “merges with,” WLF II, 89 F.3d at 902—the question of whether
defendants have a duty to provide plaintiff with access to the requested records. See also Swan,
100 F.3d at 981 (determining whether “the Larson-Dugan exception would be triggered and
hence no waiver of sovereign immunity is required” rested on “discussion of the central merits
question in the case, namely whether” challenged government action violated statute); Mashiri v.
Dep’t of Educ., 724 F.3d 1028, 1031–32 (9th Cir. 2013); id. at 1032 (quoting WLF II, 89 F.3d at901–02) (following D.C. Circuit’s practice when finding that “the question of ‘[w]hether the
Larson-Dugan exception’ applied ‘merge[d] with the question on the merits,’” and therefore
turning “to address the substantive merits of the mandamus claim before it’” (alterations in
original)); accord Int'l Fed'n. of Prof'l & Tech. Eng'rs v. United States, 934 F. Supp. 2d 816,
821–22 (D. Md. 2013) (applying Larson-Dugan exception to avoid sovereign immunity bar and
reach merits of suit by union and employees of legislative branch entities against Secretary of the
United States Senate and Sergeant at Arms of the Senate in their official capacities, claiming
parts of the Stop Trading on Congressional Knowledge Act were unconstitutional); Ctr. for Arms
Control & Non-Proliferation v. Lago, No. 05-682 (RMC), 2006 WL 3328257, at *4–6 (D.D.C.
Nov. 15, 2006) (finding, in suit for disclosure of materials used by defunct presidential
commission in developing a report to the President, that sovereign immunity defense was
“auxiliary to the ultimate question on the merits” as to whether the commission owed duty of
disclosure under sunshine provisions of Federal Advisory Committee Act and therefore
addressing the merits).
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In short, the merits of plaintiff’s claimed right of access to the requested subpoenas must
be considered to assess whether the sovereign immunity defendants claim bars this lawsuit.
2. Plaintiff Has No Common-Law Right of Access to the Requested Records
The Supreme Court has made “clear that the courts of this country recognize a general
right to inspect and copy public records and documents, including judicial records and
documents.” Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978) (footnote omitted). This
right of access is “not absolute,” id. at 598, but “left to the sound discretion of the trial court, a
discretion to be exercised in light of the relevant facts and circumstances of the particular case,”
id. at 599; see SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (“Of course, even if a
document is a record of the type subject to the common law right of access, the right is not
absolute: it is defeated when the government's interest in secrecy outweighs the public’s interest
in disclosure.”). Binding precedent in this Circuit ensures that “the common law right of access
extends beyond judicial records to the ‘public records’ of all three branches of government.”
Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 936 (D.C. Cir. 2003) (citing
WLF II, 89 F.3d at 903–04); see also Schwartz v. U.S. Dep’t of Justice, 435 F. Supp. 1203, 1204
(D.D.C. 1977) (holding “that Congress is subject to the common law rule which guarantees the
public a right to inspect and copy public records” and explaining that even though “Congress has
exempted itself from the requirements of the Freedom of Information Act, 5 U.S.C. § 552, by 5
U.S.C. § 551(1)(A)[,] [t]hat Act, however, is not coextensive with the common law rule”).
(a) Two-Part Test for Application of Common-Law Right of Public Access
The D.C. Circuit has outlined a two-step process for determining whether the common-
law right of access applies. Wash. Legal Found. v. U.S. Sent’g Comm’n (“WLF I”), 17 F.3d
1446, 1451–52 (D.C. Cir. 1994). First, a court must decide “whether the document sought is a
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‘public record,’” id. at 1451, and, if it is, then, second, “the court should proceed to balance the
government’s interest in keeping the document secret against the public’s interest in disclosure,”
id. at 1451–52; see also WLF II, 89 F.3d at 899 (summarizing prior holding). As to the first
prong, under “federal common law,” a “public record” subject to the public right of access “is a
government document created and kept for the purpose of memorializing or recording an official
action, decision, statement, or other matter of legal significance, broadly conceived.” WLF II, 89
F.3d at 905; see also Am. Int'l Grp., 712 F.3d at 3 (same). In applying the second prong of this
test, courts “should focus on the specific nature of the governmental and public interests as they
relate to the document itself,” rather than engaging in “an abstract inquiry.” WLF I, 17 F.3d at
1452.3
The requested records at issue in this lawsuit do not satisfy this two-part public access
test.
(b) The Requested Records Are Not Public Records
The requested subpoenas were issued by HPSCI and in this respect certainly reflect an
official action of the Committee.4 Not every ministerial or preliminary step to gather
3
In WLF I, the D.C. Circuit found that the “district court erred” by concluding categorically that the
common-law right did not apply “without knowing” precisely which documents were at issue, and thus instructed
that “the court should have analyzed each category of document requested.” WLF I, 17 F.3d at 1452. Here, by
contrast, the requested documents are identified plainly as the subpoenas to, and corresponding responses from,
telecommunications carriers for subscriber records for various individuals relevant to the HPSCI impeachment
inquiry. Compl. ¶ 8; Pl.’s Opp’n at 2.
4
The responses to the subpoenas were supplied by the subpoena recipients and thus were not “created” by
HPSCI. Consequently, the requested subpoena responses fail to meet the definition of “public record” subject to the
common law right of access. See, e.g., Am. Int’l Grp., 712 F.3d at 5 (holding that “[d]ocuments created by the
independent consultant are not government documents,” even though provided to a government agency and the
court and therefore not “public records” of the type subject to the common law right of access). In addition to not
meeting the first prong of the two-part public access test, the requested subpoena responses fail the second prong.
The requested subpoena responses implicate the subscribers’ privacy interests, as plaintiff acknowledges. See
Compl. ¶ 11; Pl.’s Opp’n at 2 n.2 (noting that “Plaintiff does not seek to and will not further expose the call records
of private individuals”). To the extent such responses were not already revealed by HPSCI, see Pl.’s Opp’n at 6;
(noting that some of the requested information was “released publicly by Defendants”), further disclosure of these
subscriber records would not serve the public interest but only unnecessarily undermine those privacy interests.
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information by a government entity amounts to creation of a “public record,” however. In
fashioning the definition of “public records” subject to the common law right of public access,
the D.C. Circuit articulated two guideposts: “adequately protect[ing] the public’s interest in
keeping a watchful eye on the workings of public agencies,—an interest we regard as
fundamental to a democratic state,” WLF II, 89 F.3d at 905 (internal quotations and citations
omitted), and “yet narrow enough to avoid the necessity for judicial application of the second-
step balancing test to documents that are preliminary, advisory, or, for one reason or another, do
not eventuate in any official action or decision being taken,” id. As examples of the latter “not
encompass[ed]” by the definition, the Court cited “the preliminary materials upon which an
official relied in making a decision or other writings incidental to the decision itself—for
example, the report of a blood test provided in support of an application for a marriage license,
the job application of a would-be government employee, a government auditor's preliminary
notes used in the preparation of an official report, or a cover memorandum circulated with a copy
of an official report or study.” Id. at 905–06.
HPSCI’s issuance of the requested subpoenas was just such a preliminary step to gather
information pertinent to the Committee’s task of deciding whether to recommend impeachment
of the President and thus the subpoenas do not qualify as public records subject to the common-
law right of public access. For example, in the analogous case of Pentagen Technologies
International v. Committee on Appropriations of the United States House of Representatives
(“Pentagen Technologies”), 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir.
1999), a private company and individual sued, under the public right of access to public records,
for disclosure of investigative reports prepared by staff of the defendant Committee on
Appropriations of the United States House of Representatives, id. at 43. The Court declined to
14
compel disclosure, finding that the investigative reports at issue were “‘preliminary materials’
that do not fall within the definition of ‘public records’ employed by this Circuit,” because “the
reports are ‘investigative’ in nature” and do not “memorialize or record any official action taken
by the Committee.” Id. at 45. This finding led to the conclusion that “[t]here thus exists no
common law right of access to the reports, and the Court need not apply the second-step
balancing test of WLF I to the reports.” Id.
Here, the requested subpoenas were issued as part of HPSCI’s investigative effort and
such issuance, though undeniably a form of Committee action, was so preliminary to any final
recommendation that this action lacks the legal significance to constitute a “public record” to
which the right of public access attaches. See WLF II, 89 F.3d at 906 (concluding that requested
documents of Advisory Group to U.S. Sentencing Commission were “made up entirely of
materials that are, if not preliminary, then merely incidental to the only official action the
Advisory Group was authorized to take, viz., recommending sentencing guidelines to the
Commission,” and did not qualify as “public records”). Consequently, plaintiff has no right to
disclosure of these subpoenas under the common-law right of access.5
B. Speech or Debate Clause
Plaintiff’s demand for disclosure of the requested subpoenas, and responses thereto, not
only fails under the common-law right of access but is also barred by the Speech or Debate
Clause, which provides that “Senators and Representatives . . . for any Speech or Debate in either
5
While not necessary to address, the requested disclosure of the subpoenas would also likely fail the second
part of the two-part test for public access, which requires “balanc[ing] the government’s interest in keeping the
document secret against the public’s interest in disclosure.” WLF II, 89 F.3d at 905. The D.C. Circuit has made
clear, in denying enforcement of civil subpoenas demanding disclosure of congressional investigative files, that
Congress may “insist on the confidentiality of investigative files,” see Brown & Williamson Tobacco Corp. v.
Williams, 62 F.3d 408, 420 (D.C. Cir. 1995), which in the context of the instant case easily covers the requested
subpoenas.
15
House . . . shall not be questioned in any other Place.” U.S. CONST., art. I, § 6, cl. 1. This Clause
creates “absolute immunity from civil suit.” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir.
2015) (citing Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502–03 (1975)). The purpose
of such immunity “is to protect the individual legislator, not simply for his own sake, but to
preserve the independence and thereby the integrity of the legislative process.” United States v.
Brewster, 408 U.S. 501, 524 (1972); see also Eastland, 421 U.S. at 502 (“The purpose of the
Clause is to insure that the legislative function the Constitution allocates to Congress may be
performed independently.”); Rangel, 785 F.3d at 23 (“The Clause reflects the Founders’ belief in
legislative independence.”). As it safeguards legislative independence, the Clause also “‘serves
the additional function of reinforcing the separation of powers so deliberately established by the
Founders.’” Eastland, 421 U.S. at 502 (quoting United States v. Johnson, 383 U.S. 169, 178
(1966)).
“Without exception,” the Supreme Court “ha[s] read the Speech or Debate Clause
broadly to effectuate its purposes.” Eastland, 421 U.S. at 501. Thus, “although the Clause
speaks of ‘Speech or Debate,’ it extends further to all ‘legislative acts.’” Rangel, 785 F.3d at 23
(quoting Doe v. McMillan, 412 U.S. 306, 312 (1973)). Indeed, when “it is determined that
Members are acting within the ‘legitimate legislative sphere[,]’ the Speech or Debate Clause is
an absolute bar to interference.” Eastland, 421 U.S. at 503 (quoting McMillan, 412 U.S. at
314)).
To be considered within the “legislative sphere” for purposes of the Clause, a given
activity “must be an integral part of the deliberative and communicative processes by which
Members participate in committee and House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to other matters which the
16
Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S.
606, 625 (1972). Under this standard, “authorizing an investigation pursuant to which . . .
materials were gathered” qualifies for protection, McMillan, 412 U.S. at 313, as does “[t]he
issuance of a subpoena pursuant to an authorized investigation,” Eastland, 421 U.S. at 505, both
of which, the Supreme Court has explained, are “indispensable ingredient[s] of lawmaking,” id.The Clause applies to a legislative act even when “a plaintiff alleges that [the act] violated the
House Rules . . . or even the Constitution.” Rangel, 785 F.3d at 24 (first citing Kilbourn v.
Thompson, 103 U.S. (13 Otto) 168, 203 (1880); and then citing McMillan, 412 U.S. at 312–13).
“Such is the nature of absolute immunity, which is—in a word—absolute.” Id. (citing Bogan v.
Scott-Harris, 523 U.S. 44, 54–55 (1998).6
Applying these standards to the HPSCI subpoenas at issue in this case, make amply clear
that the Speech or Debate Clause bars plaintiff’s suit. Though the aim of an impeachment
inquiry is not to enact legislation, such inquiry is undoubtedly a “matter[] which the Constitution
places within the jurisdiction of either House.” Gravel, 408 U.S. at 625. Indeed, the
Constitution specifically entrusts the House of Representatives with “the sole Power of
Impeachment.” U.S. CONST., art. I, § 2, cl. 5. For purposes of Speech or Debate immunity, the
subpoenas issued in connection with an impeachment inquiry fall within this special “legislative
sphere,” McMillan, 412 U.S. at 312 (citing Gravel, 408 U.S. at 624–25), and meet the standard
6
Thus, plaintiff’s suggestion that the HPSCI subpoenas were “issued without any lawful basis,” see Compl.
¶ 11, an allegation defendants deny, see Defs.’ Mem. at 9–10, is immaterial to the analysis. See McMillan, 412 U.S.
at 312–13 (finding that Speech or Debate immunity applies even to conduct that, “if performed in other than
legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes”); Rangel,
785 F.3d at 24. In any event, the issuance of subpoenas “by a committee acting, as here, on behalf of one of the
Houses,” is perfectly appropriate since, as the Supreme Court has explained, “[w]ithout such power the
Subcommittee may not be able to do the task assigned to it by Congress. To conclude that the power of inquiry is
other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause in
derogation of the integrity of the legislative process.” Eastland, 421 U.S. at 505 (internal quotations and citation
omitted).
17
articulated in Gravel, because the subpoenas were “an integral part of [a] deliberative and
communicative process[],” Gravel, 408 U.S. at 625, underlying a matter constitutionally
entrusted to the House. As the Eleventh Circuit explained in reaching this same conclusion:
“impeachment is viewed as a legislative activity in the sense that it is one of the ‘other matters
which the Constitution places within the jurisdiction of either House.’” In re Request for Access
to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F.2d 1438, 1446 (11th Cir. 1987)
(quoting Gravel, 408 U.S. at 625); see also Porteous v. Baron, 729 F. Supp. 2d 158, 165 (D.D.C.
2010) (quoting Gravel, 408 U.S. at 625) (“The trial of impeachable offenses is, of course, a
matter that the Constitution places within the sole jurisdiction of the Senate . . . and the use of
relevant testimony at or in preparation for that trial is, without a doubt, ‘an integral part of the
deliberative and communicative processes by which Members participate’ in the trial
proceedings.” (internal citations omitted)).
Plaintiff asserts three counterarguments, none of which is persuasive. First, plaintiff
argues that the Speech or Debate Clause should not apply because “[t]his case is only about the
disclosure of public records,” rather than “about whether Defendants can be held responsible for
their actions in the issuance of the subpoenas.” Pl.’s Opp’n at 4. This argument misapprehends
the nature of Speech or Debate immunity, which, as the D.C. Circuit has made plain, is
“absolute.” Rangel, 785 F.3d at 24. “The prospect of civil liability lessens the ability of the
Members of Congress to ‘represent the interests of their constituents,’ and litigation itself
‘creates a distraction and forces Members to divert their time, energy, and attention from their
legislative tasks[.]’” Id. (first quoting Powell v. McCormack, 395 U.S. 486, 503 (1969); and then
quoting Eastland, 421 U.S. at 503)). To protect against such diversions, “the clause not only
provides a defense on the merits but also protects a legislator from the burden of defending
18
himself.” Powell, 395 U.S. at 502–03. Thus, the fact that plaintiff seeks disclosure, rather than
to establish criminal or civil liability, has no bearing on the application of the Clause to bar this
lawsuit. This principle was well articulated in United States v. Peoples Temple of the Disciples
of Christ, 515 F. Supp. 246 (D.D.C. 1981), in which the court quashed a subpoena for documents
concerning a House committee's investigation of a congressman's death in Guyana, explaining
that: “Once it is determined . . . that the [Members’] actions fall within the legitimate legislative
sphere, judicial inquiry is at an end. Otherwise, Members of Congress conducting investigations
would be forced to consider at every turn whether evidence received pursuant to the investigation
would subsequently have to be produced in court. This would imperil the legislative
independence protected by the Clause.” 515 F. Supp. at 249 (internal quotations omitted).
Second, plaintiff questions the application of Speech or Debate immunity on the grounds
that impeachment proceedings are “judicial” rather than “legislative.” Pl.’s Opp’n at 4–5. This
argument falls far short.7 Plaintiff’s brief citation, Pl.’s Opp’n at 4, to this Court’s decision in In
re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order
Authorizing Release of Certain Grand Jury Materials (“In re Committee on the Judiciary”), 414
F. Supp. 3d 129 (D.D.C. 2019), aff’d, 951 F.3d 589 (D.C. Cir. 2020), cert. granted sub nom.
Dep’t of Justice v. House Comm. on Judiciary, No. 19-1328, 2020 WL 3578680 (mem.) (July 2,
2020), finding that a Senate impeachment trial was “judicial” within the meaning of Federal Rule
of Criminal Procedure 6(e), id. at 156, is inapposite. In re Committee on the Judiciary did not
7
Pointing to the then-pending grant of certiorari in Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir.
2019), cert. granted, 140 S. Ct. 660 (Dec. 13, 2019), rev’d, 140 S. Ct. 2019 (2020), plaintiff suggests that “[t]he
outcome of the pending U.S. Supreme Court case will likely impact the question of whether impeachment is a
legislative activity and whether Speech or Debate Clause protection applies.” Pl.’s Opp’n at 5. Mazars concerned
the validity of a legislative subpoena issued by the House Oversight Committee, see 940 F.3d at 723–24, not
whether an impeachment inquiry falls within the “legislative sphere,” McMillan, 412 U.S. at 312, for purposes of
Speech or Debate Clause immunity and, consequently, the Supreme Court’s resolution of that case, see 140 S. Ct.
2019, has no bearing here.
19
address, and is not relevant to, the meaning of the term “legislative sphere” for purposes of the
Speech or Debate Clause. See id. at 149–57.
Third and finally, plaintiff cites—only in the Complaint and without further
explanation—Pentagen Technologies, to assert that “no legislative purpose affording Speech and
Debate Clause immunity applies.” Compl. ¶ 10. This reliance is entirely misplaced. After all,
the Pentagen Technologies court ruled that the requested congressional investigative reports at
issue in that case were “protected from compulsory disclosure by the Speech or Debate Clause of
the Constitution,” 20 F. Supp. 2d at 45, and neither made contrary findings nor drew any
distinctions as to investigative materials collected in the context of an impeachment inquiry.
Accordingly, the Speech or Debate Clause bars this lawsuit because the subpoenas at
issue were an “integral part” of an impeachment inquiry, a “matter which the Constitution places
within the jurisdiction of either House,” Gravel, 408 U.S at 625. This case must therefore be
dismissed.
IV. CONCLUSION
For the reasons set forth above, plaintiff has no right to demand disclosure of the
requested subpoenas and responses thereto issued by HPSIC in connection with the impeachment
inquiry of the President, and the Speech or Debate Clause of the Constitution provides immunity
from suit to defendants. This case is therefore dismissed with prejudice.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: July 27, 2020
__________________________
BERYL A. HOWELL
Chief Judge
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