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,

1 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.

2 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,

(D.C. Cir. 2020)

(alterations in original) (quoting Al-Zahrani v. Rodriguez,

(D.C. Cir. 2012));

see Gunn v. Minton,

(2013) (“‘Federal courts are courts of limited

jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” (quoting

3 Kokkonen v. Guardian Life Ins. Co. of Am.,

(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,

(2011). Absent

subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp.,

, 506–07 (2006) (citing Kontrick v. Ryan,

(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,

(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,

(D.C. Cir.

2011) (citations omitted) (quoting Thomas v. Principi,

(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,

(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

4 impeachment inquiry, they are absolutely protected by the Speech or Debate Clause,”

(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,

(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,

(1983); see also FDIC v.

Meyer,

(1994) (“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.”) (citations omitted); United States v. Mitchell,

(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,

(D.C. Cir. 2008) (quoting Gray v. Bell,

(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

1 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,”

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,

(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,

(1998) (quoting Ex parte McCardle,

(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.’”).

5 unequivocally expressed in statutory text and will not be implied.” Lane v. Pena,

(1996) (citations omitted).

Sovereign immunity extends to Congress when “sued as a branch of the government,”

McLean v. United States,

(4th Cir. 2009), abrogated on other grounds by

Lomax v. Ortiz-Marquez,

(2020), and makes members of Congress “immune

from liability for their actions within the legislative sphere,”

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,

(10th Cir. 2007) (quoting Rockefeller v.

Bingaman, No. CIV-06-0198,

, at *3 (D.N.M. Sept. 20, 2006)) (citing Keener

v. Cong. of the U.S.,

(5th Cir. 1972)); see also Cofield v. United States,

, 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

.” 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.

(first citing Larson v. Domestic &

Foreign Com. Corp.,

(1949); then citing Dugan, 372 U.S. at 621–22; and then

6 citing Wash. Legal Found. v. U.S. Sent’g Comm’n (“WLF II”),

, 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.,

(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,

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,

, 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

(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,

(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,”

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 . . . .’”

at 622 (quoting Malone v. Bowdoin,

(1962)); see also Dalton v. Specter,

(1994)) (quoting Larson,

n.11) (summarizing Larson as holding

“that sovereign immunity would not shield an executive officer from suit if the officer acted

7 either ‘unconstitutionally or beyond his statutory powers’” (emphasis in original)); Pollack v.

Hogan,

, 119–21 (D.C. Cir. 2012);

at 120 (quoting Larson,

)

(“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,

, “does not by itself waive sovereign immunity.” Defs.’ Reply Supp. Defs.’ Mot.

Dismiss (“Defs.’ Reply”) at 2, ECF No. 12 (quoting WLF II,

) (citing Pub. Citizen

v. Kantor,

(D.D.C. 1994), abrogated on other grounds by Chamber of

Com. v. Reich,

(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,

(D.C. Cir. 2005); see also WLF II,

(citing Reich,

) (“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,

(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,

n.1,

8 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,”

(quoting Am.

Cetacean Soc'y v. Baldrige,

, 433 (D.C. Cir. 1985), rev'd on other grounds sub nom.

Japan Whaling Ass'n v. Am. Cetacean Soc'y,

(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.,

(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.,

(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.,

(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,”

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,

(1984) (first citing Kerr v. U.S. Dist. Court,

, 402–03 (1976); and then citing United States ex rel. Girard Tr. Co. v. Helvering,

, 543–44 (1937)) (finding that

“provides a remedy for a plaintiff . . . only if the defendant owes him a clear nondiscretionary duty”).

9 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.

10 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,

(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.,

, 1031–32 (9th Cir. 2013);

at 1032 (quoting WLF II, 89 F.3d at

901–02) (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,

,

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),

, 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).

11 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,

(1978) (footnote omitted). This

right of access is “not absolute,”

, 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,”

; see SEC v. Am. Int’l Grp.,

(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,

(D.C. Cir. 2003) (citing

WLF II, 89 F.3d at 903–04); see also Schwartz v. U.S. Dep’t of Justice,

(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,

, by

(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”),

, 1451–52 (D.C. Cir. 1994). First, a court must decide “whether the document sought is a

12 ‘public record,’”

, 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,”

at 1451–52; see also WLF II,

(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,

; see also Am. Int'l Grp.,

(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,

.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,

. 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.,

(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.

13 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,

(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,”

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.”

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”),

(D.D.C. 1998), aff’d,

(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,

(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,

. 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,

(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,

(D.C. Cir.

2015) (citing Eastland v. U.S. Servicemen’s Fund,

, 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,

(1972); see also Eastland,

(“The purpose of the

Clause is to insure that the legislative function the Constitution allocates to Congress may be

performed independently.”); Rangel,

(“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,

(quoting United States v. Johnson,

(1966)).

“Without exception,” the Supreme Court “ha[s] read the Speech or Debate Clause

broadly to effectuate its purposes.” Eastland,

. Thus, “although the Clause

speaks of ‘Speech or Debate,’ it extends further to all ‘legislative acts.’” Rangel,

(quoting Doe v. McMillan,

(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,

(quoting McMillan,

)).

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,

(1972). Under this standard, “authorizing an investigation pursuant to which . . .

materials were gathered” qualifies for protection, McMillan,

, as does “[t]he

issuance of a subpoena pursuant to an authorized investigation,” Eastland,

, both

of which, the Supreme Court has explained, are “indispensable ingredient[s] of lawmaking,”

The Clause applies to a legislative act even when “a plaintiff alleges that [the act] violated the

House Rules . . . or even the Constitution.” Rangel,

(first citing Kilbourn v.

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.”

(citing Bogan v.

Scott-Harris,

, 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,

. 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,

(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,

. 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,

(internal quotations and citation omitted).

17 articulated in Gravel, because the subpoenas were “an integral part of [a] deliberative and

communicative process[],” Gravel,

, 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,

(11th Cir. 1987)

(quoting Gravel,

); see also Porteous v. Baron,

(D.D.C.

2010) (quoting Gravel,

) (“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,

. “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[.]’”

(first quoting Powell v. McCormack,

(1969); and then

quoting Eastland,

)). 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,

(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.”

(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”),

(D.D.C. 2019), aff’d,

(D.C. Cir. 2020), cert. granted sub nom.

Dep’t of Justice v. House Comm. on Judiciary, No. 19-1328,

(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,

(D.C. Cir. 2019), cert. granted,

(Dec. 13, 2019), rev’d,

(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,

, for purposes of Speech or Debate Clause immunity and, consequently, the Supreme Court’s resolution of that case, see

, 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

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,”

, 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

20