Judicial Watch, Inc. v. Adam B. Schiff

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 24, 2021 Decided June 4, 2021
No. 20-5270
JUDICIAL WATCH, INC.,
APPELLANT
v.
ADAM B. SCHIFF, CHAIRMAN, U.S. HOUSE PERMANENT
SELECT COMMITTEE ON INTELLIGENCE, AND U.S. HOUSE
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03790)
James F. Peterson argued the cause and filed the briefs for
appellant.
Todd B. Tatelman, Principal Deputy General Counsel,
U.S. House of Representatives, argued the cause for appellee.
With him on the brief was Douglas N. Letter, General Counsel.
Before: HENDERSON, ROGERS and WILKINS, Circuit
Judges.
Opinion for the Court by Circuit Judge ROGERS.
2
Opinion concurring in the judgment by Circuit Judge
HENDERSON.
ROGERS, Circuit Judge: Judicial Watch, Inc. filed a
lawsuit against the House Permanent Select Committee on
Intelligence and its chairman Adam B. Schiff seeking
disclosure of all subpoenas issued to any telecommunications
provider as a part of the Committee’s impeachment inquiry into
President Donald J. Trump, as well as the responses to those
subpoenas. Because the Speech or Debate Clause of the United
States Constitution bars this lawsuit, the district court’s
dismissal of the case for lack of subject-matter jurisdiction is
affirmed.
I.
On September 24, 2019, the Speaker of the House
announced that the House of Representatives would proceed
with its impeachment inquiry into President Donald J. Trump.
See Press Release, Speaker Nancy Pelosi, Pelosi Remarks
Announcing Impeachment Inquiry (Sept. 24, 2019),
https://www.speaker.gov/newsroom/92419-0. On or around
September 30, 2019, the Committee issued a subpoena to the
telecommunications provider AT&T, Inc. for certain records.
See Compl. ¶ 8; Oral Arg. Trans. 11.
A month later, on October 31, 2019, the full House
adopted Resolution 660. As relevant, the Resolution
established procedures for the Committee to continue its
impeachment inquiry, including for the issuance of subpoenas,
and required the Committee to issue a report setting forth its
findings and any recommendations to the Committee on the
Judiciary. See H.R. Res. 660, 116th Cong. (2019). Apparently,
the Committee subsequently issued additional subpoenas to
3
other telecommunications providers. See Appellees Br. 4; see
also Oral Arg. Trans. 3.
In early December 2019, the Committee published its
Report, which contained some information obtained in
response to its subpoenas to telecommunications providers.
See H. Rep. 116-335, TRUMP-UKRAINE IMPEACHMENT
INQUIRY REPORT (Dec. 2019). For instance, the Report
references document productions from AT&T, Inc. that
apparently included records of phone calls involving private
individuals. See, e.g., id. at 47 nn.82–85.
Shortly thereafter, on December 6, 2019, Judicial Watch,
Inc. submitted a request to the Committee and its chairman for
copies of:
1. All 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;
2. All responses received to the above-referenced
subpoenas.
Compl. ¶ 8. The request asked for the records or a response
indicating whether the Committee and its chairman intended to
comply with the request by December 18, 2019. Id. ¶ 9.
After neither the Committee nor its chairman acceded or
responded by that date, Judicial Watch filed the instant lawsuit
in the U.S. district court, alleging that the failure to release the
requested records violated the common-law right of public
access to government records. See id. ¶¶ 13–21. The district
court dismissed the case for lack of subject-matter jurisdiction,
4
concluding that the Speech or Debate Clause and sovereign
immunity barred Judicial Watch’s lawsuit. See Judicial Watch,
Inc. v. Schiff, 474 F. Supp. 3d 305, 309–19 (D.D.C. 2020).
Judicial Watch appeals, and our review is de novo. See Rangel
v. Boehner, 785 F.3d 19, 22 (D.C. Cir. 2015).
II.
The Speech or Debate Clause provides that “for any
Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place.”
U.S. CONST. art. I, § 6, cl. 1. Its purpose 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). It “serves the additional function of reinforcing the
separation of powers so deliberately established by the
Founders.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
502 (1975) (quoting United States v. Johnson, 383 U.S. 169,
178 (1966)).
“The Supreme Court has consistently read the Speech or
Debate Clause ‘broadly’ to achieve its purposes.” Rangel, 785
F.3d at 23 (quoting Eastland, 421 U.S. at 501). Thus, the
Clause provides immunity from both criminal and civil suits.
See Eastland, 421 U.S. at 502–03. And although it speaks of
“Speech or Debate,” it extends to protect all “legislative acts.”
Doe v. McMillan, 412 U.S. 306, 312 (1973) (internal citation
omitted). As to the Clause’s reach, the Supreme Court has
explained:
The heart of the Clause is speech or debate in either
House. Insofar as the Clause is construed to reach
other matters, they must be an integral part of the
deliberative and communicative processes by which
5
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 Constitution places
within the jurisdiction of either House.
Gravel v. United States, 408 U.S. 606, 625 (1972).
Here, the Committee’s issuance of subpoenas, whether as
part of an oversight investigation or impeachment inquiry, was
a legislative act protected by the Speech or Debate Clause.
“Issuance of subpoenas . . . has long been held to be a legitimate
use by Congress of its power to investigate,” Eastland, 421
U.S. at 504, and that power “plainly falls within the test for
legislative activity announced in Gravel,” McSurely v.
McClellan, 553 F.2d 1277, 1286 (D.C. Cir. 1976) (internal
quotation marks and citation omitted). Furthermore, because
the Constitution gives the House of Representatives the sole
power of impeachment, U.S. CONST. art. I, § 2, cl. 5, subpoenas
issued as part of an impeachment inquiry constitute an “integral
part of the deliberative and communicative processes” with
respect to a matter that “the Constitution places within the
jurisdiction of either House,” Gravel, 408 U.S. at 625.
As precedent makes clear, none of Judicial Watch’s
counterarguments have merit. That its lawsuit seeks “only the
disclosure of public records,” rather than to establish criminal
or civil liability, does not render the Speech or Debate Clause
inapplicable. Appellant Br. 10. To the contrary, Judicial
Watch “is no more entitled to compel . . . production of
documents . . . than it is to sue congressmen.” Brown &
Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 421 (D.C.
Cir. 1995). To the extent Judicial Watch maintains that
“legislative independence is not at issue in this case” because
it seeks “public records that are not confidential in nature,” it
6
misunderstands the immunity afforded by the Speech or Debate
Clause. Appellant Br. 10–11. Notwithstanding the records’
confidentiality, “legislative independence is imperiled” when a
“civil action . . . creates a distraction and forces [congressmen]
to divert their time, energy, and attention from their legislative
tasks to defend the litigation.” Eastland, 421 U.S. at 503; see
Brown & Williamson Tobacco Corp., 62 F.3d at 415.
Equally unavailing is Judicial Watch’s contention that the
Committee’s subpoenas “served no legitimate legislative
purpose” and were therefore unprotected by the Speech or
Debate Clause. Appellant Br. 12. According to Judicial
Watch, the subpoenas were “too tangential to the purpose of an
impeachment inquiry” because they sought “call records of
private citizens who cannot be impeached and who are accused
of no offense.” Id. at 14; see also Reply Br. 10–11.
Conversely, the Committee states that the subpoenas “played a
critical role in furthering [its] inquiry, not only in corroborating
witness testimony, but also by filling numerous factual gaps.”
Appellees Br. 19. As to the propriety of subpoenaing specific
call records, the court’s “scope of inquiry” is “narrow.”
Eastland, 421 U.S. at 506; see also McSurely, 553 F.2d at 1036.
“The wisdom of congressional approach or methodology is not
open to judicial veto.” Eastland, 421 U.S. at 509. “Nor is the
legitimacy of a congressional inquiry to be defined by what it
produces.” Id. Given these principles, and based on the record,
the unsupported objections to the relevance of the information
sought by the Committee’s subpoenas fail.
Finally, Judicial Watch’s contention that the Committee’s
subpoenas “are outside the ambit of the Speech or Debate
Clause because they were issued contrary to the rules of both
the House and [the Committee]” also fails. Appellant Br. 15.
“An act does not lose its legislative character simply because a
plaintiff alleges that it violated the House Rules.” Rangel, 785
7
F.3d at 24 (citing Kilbourn v. Thompson, 103 U.S. 168, 203
(1880)). Moreover, as the Committee notes, Judicial Watch
fails to show that the issuance of the subpoenas in fact violated
congressional rules. See Appellees Br. 21–22.
Today, the court has no occasion to decide whether the
Speech or Debate Clause bars disclosure of public records
subject to the common-law right of access in all circumstances.
Nor need it consider whether and how the application of the
Clause relates to the two-step inquiry to determine whether the
common-law right of access applies. See Washington Legal
Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1451 (D.C. Cir.
1994). The parties did not raise, and our precedent does not
address those issues.
Because the Speech or Debate Clause bars Judicial
Watch’s lawsuit, the court need not address the district court’s
alternative ground for dismissal based on the doctrine of
sovereign immunity. See Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 431 (2007). Accordingly, we
remand the case to the district court to dismiss the complaint
without prejudice inasmuch as the dismissal is for want of
subject-matter jurisdiction. See North American Butterfly
Ass’n v. Wolf, 977 F.3d 1244, 1253 (D.C. Cir. 2020); Howard
v. Off. of Chief Admin. Officer of U.S. House of
Representatives, 720 F.3d 939, 941 (D.C. Cir. 2013).
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: “A popular Government, without popular
information, or the means of acquiring it, is but a Prologue to a
Farce or a Tragedy; or, perhaps both. . . . [A] people who mean
to be their own Governors, must arm themselves with the
power which knowledge gives.” Letter from James Madison to
W. T. Barry (Aug. 4, 1822), in 9 The Writings of James
Madison 103 (Gaillard Hunt ed. 1910).
I agree with my colleagues that, under our precedent, the
Speech or Debate Clause of the United States Constitution bars
Judicial Watch’s lawsuit. But I join in the judgment only; I
believe, in the right case, the application of the Speech or
Debate Clause to a common law right of access claim would
require careful balancing, as discussed infra at 6–12.
I.
“In ‘the courts of this country’—including the federal
courts—the common law bestows upon the public a right of
access to public records and documents.” Wash. Legal Found.
v. U.S. Sent’g Comm’n (WLF II), 89 F.3d 897, 902 (D.C. Cir.
1996) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
597 (1978)). In Nixon, “the Supreme Court was unequivocal in
stating that there is a federal common law right of access ‘to
inspect and copy public records and documents.’” Id. (quoting
Nixon, 435 U.S. at 597). “[T]he general rule is that all three
branches of government, legislative, executive, and judicial,
are subject to the common law right.” Id. at 903 (quoting
Schwartz v. U.S. Dep’t of Just., 435 F. Supp. 1203, 1203
(D.D.C. 1977)). The right of access is “a precious common law
right . . . that predates the Constitution itself.” United States v.
Mitchell, 551 F.2d 1252, 1260 (D.C. Cir. 1976), rev’d on other
grounds sub nom. Nixon v. Warner Commc’ns, Inc., 435 U.S.
589 (1978).
2
The common law right of access “is fundamental to a
democratic state.” Id. at 1258; cf. Cowley v. Pulsifer, 137 Mass.
392, 394 (1884) (Holmes, J.) (“[I]t is of the highest moment
that those who administer justice should always act under the
sense of public responsibility, and that every citizen should be
able to satisfy himself with his own eyes as to the mode in
which a public duty is performed.”). “Like the First
Amendment, then, the right of inspection serves to produce ‘an
informed and enlightened public opinion.’” Mitchell, 551 F.2d
at 1258 (quoting Grosjean v. Am. Press Co., 297 U.S. 233, 247
(1936)).
We have recognized that “openness in government has
always been thought crucial to ensuring that the people remain
in control of their government.” In re Sealed Case, 121 F.3d
729, 749 (D.C. Cir. 1997). “Neither our elected nor our
appointed representatives may abridge the free flow of
information simply to protect their own activities from public
scrutiny. An official policy of secrecy must be supported by
some legitimate justification that serves the interest of the
public office.” Press-Enter. Co. v. Superior Ct. of Cal. for
Riverside Cty., 478 U.S. 1, 19 (1986) (Stevens, J., dissenting).
In the analogous Freedom of Information Act (FOIA) context,
the United States Supreme Court has made clear that citizens
“know[ing] ‘what their Government is up to’ . . . [is] a
structural necessity in a real democracy.” Nat’l Archives &
Recs. Admin. v. Favish, 541 U.S. 157, 171–72 (2004) (quoting
U.S. Dep’t of Justice v. Reps. Comm. for Freedom of the Press,
489 U.S. 749, 773 (1989)). 1
1
See also Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566
F.2d 242, 259 (D.C. Cir. 1977) (“The exemptions from the
mandatory disclosure requirement of the FOIA are both narrowly
drafted and narrowly construed in order to counterbalance the self-
protective instincts of the bureaucracy which, like any organization,
3
We have never considered the Speech or Debate Clause’s
application to a common law right of access claim and the
parties simply cite a single district court case where the two
doctrines were raised, Pentagen Technologies International v.
Committee on Appropriations of the United States House of
Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194
F.3d 174 (D.C. Cir. 1999) (unpublished table decision). 2 In
Pentagen Technologies, the plaintiffs brought a common law
right of access claim against the Committee on Appropriations
of the United States House of Representatives, seeking “to
review and copy a series of investigative reports” that were not
released to the public. 20 F. Supp. 2d at 42. The Committee on
Appropriations asserted the reports were protected from
disclosure by the Speech or Debate Clause. Id. at 43. Although
the district court “conclude[d] that investigative reports [were]
protected from compulsory disclosure by the Speech or Debate
Clause,” it reached that conclusion only after determining that
the investigative reports were “not ‘public records’ as defined
by WLF II” and that “[t]here thus exist[ed] no common law
right of access to the reports.” Id. at 45. If the Speech or Debate
Clause in fact provided absolute protection from disclosure—
including protection from a common law right of access
claim—the district court’s “public records” analysis would
have been unnecessary.
would prefer to operate under the relatively comforting gaze of only
its own members rather than the more revealing ‘sunlight’ of public
scrutiny.”).
2
Although we affirmed the district court’s judgment in
Pentagen Technologies, we did not reach the merits. Pentagen Techs.
Int’l v. Comm. on Appropriations of U.S. House of Representatives,
194 F.3d 174, 174 (D.C. Cir. 1999) (unpublished table decision). We
addressed only the appellants’ reconsideration motion and
determined the district court did not abuse its discretion in denying
reconsideration. Id.
4II.
We have set forth a two-step inquiry to determine 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 ‘public record,’” id. at 1451, and, if it is, “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
earlier holding).
A.
A “public record” subject to the common law 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. The district court
concluded that the subpoenas issued by the House Permanent
Select Committee on Intelligence (Committee) do not fall
within this definition of “public record.” Jud. Watch, Inc. v.
Schiff, 474 F. Supp. 3d 305, 315 (D.D.C. 2020). The district
court was plainly incorrect; the subpoenas are “public
records.” 3
3
The district court appropriately concluded that the responses
to the Committee subpoenas are not “public records” because the
records belong to a telecommunications provider, not a government
entity. Schiff, 474 F. Supp. 3d at 315 n.4; see SEC v. Am. Int’l Grp.,
712 F.3d 1, 5 (D.C. Cir. 2013) (“Documents created by the
independent consultant are not government documents” and
therefore not “public records” subject to the common law right of
access because “a transfer of possession [to the government] is not
itself sufficient to render them public records”). As discussed infra,
5
We have determined the definition of “public record” is
“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.” WLF
II, 89 F.3d at 905. The district court concluded that the
Committee’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.” Schiff, 474 F. Supp. 3d at 315–16. But there is
nothing “preliminary” about a subpoena issued by the
Congress—it is an “official action” that constitutes a “matter
of legal significance, broadly conceived.” WLF II, 89 F.3d at
905; see Appellant Br. 6 (“the subpoenas requested here are
formal legal commands issued to third parties”).
The potential consequences for failure to comply with a
Congressional subpoena lay bare the difference, in the context
of the “public record” definition, between a subpoena and
preliminary draft materials like those at issue in WLF II and
Pentagen Technologies. The disputed documents in WLF II
and Pentagen Technologies—preliminary drafts and internal
investigative memoranda prepared at the request of a
government decisionmaker—carried no independent legal
significance. See WLF II, 89 F.3d at 906 (“each category of
documents is made up entirely of materials that are, if not
preliminary, then merely incidental to the only official action
the [government entity] was authorized to take”). In contrast,
failure to comply with a Congressional subpoena may result in
contempt proceedings whether or not the Committee ultimately
however, the Committee subpoenas are plainly “public records”
subject to the common law right of access.
6
takes action. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204
(1821) (Congress’s inherent contempt power); 2 U.S.C.
§§ 192, 194 (criminal contempt statute to enforce
Congressional subpoenas).
Moreover, as the district court recognized, “[t]he requested
subpoenas were issued by [the Committee] and in this respect
certainly reflect an official action.” Schiff, 474 F. Supp. 3d at
315. Indeed, the Committee asserts that the subpoenas were
issued in accordance with House Rules. See Appellee Br. 21–
22 (citing House Rules XI.2(m)(1)(B), XI.2(m)(3)(A)(i) and
Rules of the Permanent Select Comm. on Intelligence, Rule
10(b)). And, although we do not have access to the subpoenas
at issue, other Committee subpoenas related to the
impeachment inquiry that have been released to the public, see
infra at 10 n.6, were all issued on the official letterhead of the
Congress of the United States and signed by the chairmen of
three House committees.
Simply put, the issuance of a Congressional subpoena is
an “official action” and the subpoena itself “record[s]
a[] . . . matter of legal significance, broadly conceived.” WLF
II, 89 F.3d at 905. It is therefore a “public record” subject to
the common law right of public access.
B.
Although its subpoena is a “public record,” the Committee
“could still avoid disclosure if its ‘specific interests favoring
secrecy outweigh the general and specific interests favoring
disclosure.’” WLF I, 17 F.3d at 1451 (quoting Mokhiber v.
Davis, 537 A.2d 1100, 1108 (D.C. 1988)). The second-step
balancing test “focus[es] on the specific nature of the
governmental and public interests as they relate to the
document itself, as well as the general public interest in the
openness of governmental processes.” Id. at 1452.
7
We have never applied the second-step balancing test to a
common law right of access claim seeking non-judicial
records. As we noted in WLF II, “when we look for guidance
concerning the application of this right[,] we find that we are
in uncharted waters.” WLF II, 89 F.3d at 903; cf. Nixon, 435
U.S. at 598–99 (“It is difficult to distill from the relatively few
judicial decisions a comprehensive definition of what is
referred to as the common-law right of access or to identify all
the factors to be weighed in determining whether access is
appropriate”).
For judicial records, we have weighed the public’s and the
government’s competing interests by applying the Hubbard
factors:
(1) [T]he need for public access to the
documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that
someone has objected to disclosure, and the
identity of that person; (4) the strength of any
property and privacy interests asserted; (5) the
possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the
documents were introduced during the judicial
proceedings.
In re Leopold to Unseal Certain Elec. Surveillance
Applications & Ords., 964 F.3d 1121, 1131 (D.C. Cir. 2020)
(quoting MetLife, Inc. v. Fin. Stability Oversight Council, 865
F.3d 661, 665 (D.C. Cir. 2017)); see also United States v.
Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980). The first five
Hubbard factors provide helpful guidance for balancing the
interests at stake here as well.
First, “the general public interest in the openness of
governmental processes” weighs in favor of disclosure because
8
the right of access is fundamental to our democracy. WLF I, 17
F.3d at 1452. The importance of the general public interest
should be clear from the foregoing discussion. See supra at 1–
3. As with a judicial record, there should be a “strong
presumption” in favor of disclosing a Congressional subpoena.
See In re Leopold, 964 F.3d at 1127 (quoting Hubbard, 650
F.2d at 317).
Moreover, the public has a strong interest in the subpoenas
at issue. Specifically, on the public’s “side of the scales is the
incremental gain in public understanding of an immensely
important historical occurrence that arguably would flow from
the release” of the subpoenas. Nixon, 435 U.S. at 602. Before
it did so regarding President Trump, the House had pursued
impeachment investigations into only three Presidents in the
history of our nation—President Andrew Johnson, President
Nixon and President Clinton. 4 “Public confidence in a
procedure as political and public as impeachment is an
important consideration justifying disclosure.” In re Comm. on
the Judiciary, U.S. House of Representatives, 951 F.3d 589,
601 (D.C. Cir. 2020), cert. granted sub nom. Dep’t of Just. v.
House Comm. on the Judiciary, 141 S. Ct. 185 (2020) (quoting
In re Request for Access to Grand Jury Materials Grand Jury
No. 81-1, Miami, 833 F.2d 1438, 1445 (11th Cir. 1987)). By
the Committee’s own admission in this litigation, the
subpoenas “played a critical role in furthering [the
Committee’s impeachment] inquiry, not only in corroborating
witness testimony, but also by filling numerous factual gaps.”
Appellees Br. 19. We do not know the content of the subpoenas
4
See Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867)
(President Andrew Johnson); H.R. Res. 803, 93d Cong. (1974)
(President Nixon); H.R. Res. 581, 105th Cong. (1998) (President
Clinton).
9
at issue. But it is reasonable to conclude on this record that the
subpoenas contain information of significant public interest.
“A district court weighing the second factor should
consider the public’s previous access to the . . . [specific]
information [sought], not its previous access to the information
available [regarding] the overall” subject matter. Cable News
Network, Inc. v. FBI, 984 F.3d 114, 119 (D.C. Cir. 2021). It is
undisputed that the public has had no access to the subpoenas
at issue. It is of no moment that the Committee has selectively
released to the public other information regarding its
impeachment inquiry. “[T]he appropriate question is whether
the public has previously accessed the . . . information
[sought] . . . , not whether the government has previously
disclosed other information.” Id. The answer to that question is
no.
The fourth Hubbard factor addresses the Committee’s
asserted interest “in maintaining the confidentiality of its
investigative files” and in protecting “the substantial privacy
interests . . . at stake.” Appellees Br. 28. 5 Confidentiality and
privacy interests are plainly substantial interests in the ordinary
case. But the Committee, by its own actions, has largely eroded
those interests in this case. Specifically, the Committee
released to the public unredacted versions of the subpoena
5
In dicta, the district court stated that “the requested disclosure
of the subpoenas would . . . likely fail the second part of the two-part
test for public access” because the “Congress may ‘insist on the
confidentiality of investigative files.’” Schiff, 474 F.Supp.3d at 316
n.5 (quoting Brown & Williamson Tobacco Corp. v. Williams, 62
F.3d 408, 420 (D.C. Cir. 1995)). But the district court did not address
the five Hubbard factors applicable to the second-step balancing test.
Although, as noted, the Committee’s confidentiality interest is
relevant to the fourth Hubbard factor, no single factor is
dispositive—the competing interests must be appropriately weighed.
10
cover letters and schedules sent to private individuals in
connection with its impeachment inquiry. 6 Moreover, in its
impeachment inquiry report released to the public, the
Committee identified, by name, the individuals who allegedly
participated in certain telephone calls—apparently using
information received in response to the subpoenas it issued to
telecommunications providers. 7 The Committee Report also
publicly revealed the identity of one of the telecommunications
providers, AT&T Inc., to which a subpoena or subpoenas were
6
See, e.g., Letter from Adam B. Schiff, Chairman, House
Permanent Select Committee on Intelligence, et al., to Rudolph
(“Rudy”) W. L. Giuliani (Sept. 30, 2019), https://oversight.house
.gov/sites/democrats.oversight.house.gov/files/documents/2019093
0%20-%20Giuliani%20HPSCI%20Subpoena%20Letter.pdf;
Subpoena Schedule Sent to Rudy Giuliani (Sept. 30, 2019),
https://oversight.house.gov/sites/democrats.oversight.house.gov/file
s/documents/20190930%20-%20Giuliani%20HPSCI%20Subpoena
%20Schedule%20Only.pdf; Letter from Adam B. Schiff, Chairman,
House Permanent Select Committee on Intelligence, et al., to Lev
Parnas (Sept. 30, 2019), https://oversight.house.gov/sites/democrats
.oversight.house.gov/files/documents/20190930%20-%20Parnas%2
0Letter%20and%20Doc%20Request%20Schedule.pdf; Letter from
Adam B. Schiff, Chairman, House Permanent Select Committee on
Intelligence, et al., to Igor Fruman (Sept. 30, 2019), https://oversight.
house.gov/sites/democrats.oversight.house.gov/files/documents/20
190930%20-%20Fruman%20Letter%20and%20Doc%20Request%
20Schedule.pdf; Letter from Adam B. Schiff, Chairman, House
Permanent Select Committee on Intelligence, et al., to Semyon
Kislin (Sept. 30, 2019), https://oversight.house.gov/sites/democrats.
oversight.house.gov/files/documents/20190930%20-%20Kislin%20
Letter%20and%20Doc%20Request%20Schedule.pdf.
7
See, e.g., House Permanent Select Committee on Intelligence,
The Trump-Ukraine Impeachment Inquiry Report
(Committee Report) (Dec. 2019), 45 n.69, 46 nn.76–78, 47 nn.82–
85, 64 n.255, https://intelligence.house.gov/uploadedfiles/the_trump
-ukraine_impeachment_inquiry_report.pdf.
11
issued as well as the date of the subpoena return, viz.,
September 30, 2019. 8 There is no doubt that confidentiality and
privacy interests remain in certain information contained in the
subpoenas at issue—for example, the specific 10-digit
telephone numbers associated with the private individuals’
subpoenaed accounts. But that private information could be
redacted in any disclosure. The Committee, having already
compromised those confidentiality and privacy interests
intrinsic to the names of the subscribers associated with the
subpoenas, has tipped the fourth-factor balance to Judicial
Watch.
With respect to the third and fifth Hubbard factors, the
Speech or Debate Clause puts a weighty thumb on the scale in
favor of the Committee’s desire for non-disclosure. As the
majority opinion notes, the Speech or Debate Clause’s
“purpose 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.’” Maj. Op. 4. (quoting
United States v. Brewster, 408 U.S. 501, 524 (1972)).
Moreover, “‘legislative independence is imperiled’ when a
‘civil action . . . creates a distraction and forces [congressmen]
to divert their time, energy, and attention from their legislative
tasks to defend the litigation.’” Id. at 6 (quoting Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975)).
Accordingly, Speech or Debate Clause jurisprudence makes
plain that the Committee suffers prejudice if forced to litigate
whether the subpoenas are subject to public disclosure pursuant
to the common law right of access.
Nevertheless, the fundamental importance of the common
law right of access to a democratic state—a right “predat[ing]
8
See, e.g., id. at 44 n.49 (“AT&T Document Production, Bates
ATTHPSCI _20190930_00768- ATTHPSCI _20190930_00772,
ATTHPSCI _20190930_00775”); see also Oral Arg. Tr. 11.
12
the Constitution itself”—cautions against the categorical
extension of Speech or Debate Clause immunity to the right.
Mitchell, 551 F.2d at 1260. Simply put, the Speech or Debate
Clause should not bar disclosure of public records subject to
the common law right of access in all circumstances. Instead,
the Clause should be considered in weighing the interests for
and against disclosure as part of the second-step balancing test.
“The generation that made the nation thought secrecy in
government one of the instruments of Old World tyranny and
committed itself to the principle that a democracy cannot
function unless the people are permitted to know what their
government is up to.” Reps. Comm. for Freedom of the Press,
489 U.S. at 772–73 (emphasis in original) (quoting EPA v.
Mink, 410 U.S. 73, 105 (1973) (Douglas, J., dissenting)).
I join in the judgment, however, because Judicial Watch
did not adequately present the argument resolving the Speech
or Debate Clause and common law right of access doctrines
inter se. And “we do not consider arguments not presented to
us.” Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259,
1263 (D.C. Cir. 1997) (en banc). “[W]e will not remedy the
defect, especially where, as here, ‘important questions of far-
reaching significance’ are involved.” Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983) (quoting Alabama Power Co.
v. Gorsuch, 672 F.2d 1, 7 (D.C. Cir. 1982)).