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.

4

II.

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)).