applying state legislative privilege but explaining that the state privilege and federal Speech or Debate Clause Privilege are “coterminous”
How later courts described this case
- applying state legislative privilege but explaining that the state privilege and federal Speech or Debate Clause Privilege are “coterminous”
- applying the Speech or Debate Clause privilege to a legislative committee
Written by the judges who cited it.
The opinion
[esses SY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK | Doc #: _. □□
nnn X | DATE FILED: _5/ 8/2024 |
DEVIN G. NUNES,
Plaintiff, 22-CV-01633 (PKC)(SN)
-against- ORDER
NBCUNIVERSAL MEDIA, LLC,
Defendant.
panne eX
SARAH NETBURN, United States Magistrate Judge:
Pending before the Court are two discovery disputes. First, Defendant NBCUniversal
Media, LLC (“NBCU”) argues that the Speech or Debate Clause privilege does not preclude
certain testimony of Jacob Langer, a former Communications Director for Plaintiff Devin G.
Nunes and the House Permanent Select Committee on Intelligence (“HPSCI’). Nunes joins
NBCU’s argument in part. Second, NBCU asks the Court to sanction Nunes for failing to
preserve or produce relevant documents. The factual background to these disputes can be found
in the Court’s March 19, 2024 Order, which requested supplemental briefing on the Speech or
Debate Clause and preservation issues. See ECF No. 104.
DISCUSSION
I. Speech or Debate Clause
The Court requested supplemental briefing on two issues related to the Speech or Debate
Clause: (1) whether HPSCI holds the privilege that applies to Langer’s testimony; and (2)
whether Nunes waived the privilege as to all matters at issue in this litigation.
On the first issue, the parties agree that HPSCI’s privilege extends to Langer for
questions related to his work at HPSCI. “Although the text of the Clause frames the immunity as
belonging to ‘Senators and Representatives,’ the Court of Appeals has applied the immunity to
individual Members of Congress and congressional committees alike.” Meadows v. Pelosi, 639
F. Supp. 3d 62, 69 (D.D.C. 2022) (collecting D.C. Circuit Court of Appeals cases); see also
Tenney v. Brandhove, 341 U.S. 367 (1951) (applying the Speech or Debate Clause privilege to a
legislative committee). Langer is uniquely situated, having worked for both Nunes and HPSCI.
Accordingly, HPSCI holds the privilege as it extends to Langer’s work for HPSCI, but it does
not hold the privilege as it extends to Langer’s work for Nunes.
On the second issue, Nunes has clarified that he has not invoked the Speech or Debate
Clause privilege in this litigation. Accordingly, the Court does not need to decide whether Nunes
has waived the privilege.
The Court turns to HPSCI’s privilege assertions. HPSCI asserts the privilege in
connection with two categories of questions at Langer’s deposition: (1) “questions related to
HPSCI’s July 2020 business meeting”; and (2) “questions related to HPSCI’s receipt, handling,
review, and processing of the so-called ‘Derkach Package.’” ECF No. 96, HPSCI Priv. Ltr. at 3,
5. Nunes argues that the privilege should not apply to questions related to HPSCI’s
administrative matters, which includes “testimony about whether the package at issue was turned
over to the FBI, an Executive Branch agency. . . .” ECF No. 105, Nunes Priv. Ltr. at 4. NBCU
argues that the Speech or Debate Clause privilege does not apply to any of the questions asked at
Langer’s deposition.
A. The Business Meeting
The Speech or Debate Clause privilege applies to questions about the July 29, 2020
HPSCI business meeting. The privilege protects legislators from answering questions about
conduct “within the sphere of legitimate legislative activity.” Eastland, 421 U.S. 491, 503
(1975). That sphere includes “a Member’s conduct at legislative committee hearings” and any
other matters that are “an integral part of the deliberative and communicative processes by which
Members participate in committee and House proceedings.” Gravel v. United States, 408 U.S.
606, 624 (1972). Committee meetings, like the July 29, 2020 HPSCI business meeting, fall
within this definition and are therefore legitimate legislative activities protected by the privilege.
NBCU argues that the privilege does not apply to questions about the business meeting
for two reasons. First, NBCU argues that because “the purpose of th[e] meeting was
congressional efforts to influence an executive agency,” the privilege should not apply. ECF No.
99, NBCU Priv. Ltr. at 5. But the focus of the meeting was Russia’s “effort to undermine our
elections” and HPSCI’s related request for the FBI to provide “a defensive counterintelligence
briefing to the entire Congress regarding foreign efforts to interfere in the 2020 Presidential
election.” HPSCI Business Meeting Transcript (July 29, 2020), at 3-4.1 Rather than attempting to
influence the FBI, HPSCI was attempting to investigate election interference and gain
information that could inform any related legislation. Because the “the power to investigate is
inherent in the power to make laws,” exercises of such power are protected legislative activities.
Eastland, 421 U.S. at 504. Accordingly, questions about the business meeting fall within the
privilege’s scope.
1 A transcript of the July 29, 2020 HPSCI business meeting can be found at:
https://www.congress.gov/116/meeting/house/109721/documents/HMKP-116-IG00-Transcript-
20200729.pdf [https://perma.cc/Z7TS-BPXE].
Second, NBCU argues that the questions asked to Nunes at the business meeting were
“patently improper” and were therefore “unrelated to any legislative activity.” NBCU Priv. Ltr.
at 5. An act, however, “does not lose its legislative character simply because a [party] alleges
that it violated the House Rules, or even the Constitution.” Rangel v. Boehner, 785 F.3d 19, 24
(D.C. Cir. 2015). Accordingly, regardless of whether questions asked at the business meeting
violated House or HPSCI rules, the business meeting was a legislative act. The Court therefore
sustains HPSCI’s objections to depositions questions about the business meeting.
B. Receipt and Handling of the Derkach Package
NBCU and Nunes argue that questions about the receipt and handling of the Derkach
package fall beyond the scope of the Speech or Debate Clause privilege because HPSCI’s receipt
and handling of the package constituted administrative, rather than legislative, acts.
“That Senators generally perform certain acts in their official capacity as Senators does
not necessarily make all such acts legislative in nature.” Gravel, 408 U.S. at 625. “[T]he
privilege does not attach to documents or communications that are ‘merely administrative or
personal in nature.’” Citizens Union of N.Y. v. A.G. of N.Y., 269 F. Supp. 3d 124, 151
(S.D.N.Y. 2017) (citing S.E.C. v. Comm. on Ways & Means of the U.S. House of
Representatives, 161 F. Supp. 3d 199 (S.D.N.Y. 2015)). To distinguish between legislative and
non-legislative activities undertaken by legislators, the Court conducts a two-part inquiry:
First, it is relevant whether the defendants’ actions were legislative in form, i.e.,
whether they were integral steps in the legislative process. Second, it may also
be relevant whether defendants’ actions were legislative in substance, i.e.,
whether the actions bore all the hallmarks of traditional legislation, including
whether they reflected discretionary, policymaking decisions implicating the
budgetary priorities of the government and the services the government provides
to its constituents.
State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 89 (2d Cir. 2007) (applying state
legislative privilege but explaining that the state privilege and federal Speech or Debate Clause
Privilege are “coterminous”).
Applying the law to the facts, the receipt and handling of the Derkach package was not
legislative. The handling of the package was not legislative in form because receiving mail from
purported foreign agents is not an “integral step” in the legislative process. Handling the package
was also not legislative in substance because it bears no hallmarks of legislating or
policymaking.
HPSCI characterizes its receipt of the Derkach package as “informal information
gathering” and argues that the handling of the Derkach package qualifies as protected legislative
activity because at the time it was received, “HPSCI was actively engaged in several
investigative matters related to potential foreign interference in domestic elections and was
actively considering legislation related to that issue.” HPSCI Priv. Ltr. at 4. But there is no
indication that HPSCI, Nunes, or any other member of Congress requested or subpoenaed the
Derkach package in connection with an investigation. Based on the transcript of HPSCI’s
business meeting, Nunes declined to tell other members of HPSCI whether he possessed the
Derkach package, underscoring that his handling of the package was most likely unrelated to any
formal or informal HPSCI investigations.
The Court does not categorize Nunes’s receipt and handling of the package as “informal
information gathering” or “investigative” activity. Any information about election interference
gleaned from the Derkach package’s receipt was gathered incidentally. The Speech or Debate
Clause “does not prohibit inquiry into activities that are casually or incidentally related to
legislative affairs but not a part of the legislative process itself.” United States v. Brewster, 408
U.S. 501 (1972). The Derkach package may have related incidentally to contemplated election
interference legislation; but the receipt and handling of the package was not part of any
legislative process.
Accordingly, HPSCI staffers’ conversations about Nunes’s receipt and handling of the
Derkach package – including whether Nunes gave the FBI the Derkach package – are
administrative logistics not protected by the privilege. HPSCI’s related objections are therefore
overruled.
C. Dismissal
In its supplemental letter brief, NBCU asks for “either an immediate dismissal or a
conference to discuss motion practice” “should the Court issue a decision sustaining HPSCI’s
Privilege claims.” ECF No. 109, NBCU Supp. Ltr. at 5. Because the Court is overruling some of
HPSCI’s privilege assertions, it is not necessary for the Court to reach NBCU’s request for
dismissal. If, after a second deposition of Langer, NBCU continues to believe that “principles of
fundamental fairness and due process mandate dismissal of this action,” NBCU may file a pre-
motion letter with Judge Castel. Id. at 2.
II. Preservation
NBCU asks the Court to sanction Nunes for failing to preserve and produce relevant
documents. Any sanction would require an assessment of prejudice, which may be mitigated by
today’s order. Accordingly, the Court denies NBCU’s motion without prejudice until a full
record is established. To promote judicial efficiency, any renewed motion, if warranted, shall be
made as part of any motion for summary judgment.
However, the Court still awaits additional information from Nunes on this issue. On
March 19, 2024, the Court ordered Nunes to “explain why his search efforts failed to uncover the
email communications between Langer and Rep. Crawford’s staff.” Nunes has failed to comply
with this Order and is directed to file a responsive letter by Monday, May 13, 2024.
CONCLUSION
The Court sustains HPSCI’s privilege assertions related to the July 29, 2020 HPSCI
business meeting and overrules HPSCI’s privilege assertions related to the handling and receipt
of the Derkach package. The parties shall conduct a second deposition of Jacob Langer
consistent with this Order. Additionally, Nunes shall file a letter by May 13, 2024, explaining
what efforts were made to search for responsive documents and why those efforts failed to locate
email communications between his staff and Representative Crawford’s staff.
SO ORDERED.
United States Magistrate Judge
DATED: May 8, 2024
New York, New York