Budowich v. Pelosi

Decision Date23 June 2022
Docket NumberCivil Action No. 21-3366 (JEB)
Citation610 F.Supp.3d 1
Parties Taylor BUDOWICH, et al., Plaintiffs, v. Nancy PELOSI, et al., Defendants.
CourtU.S. District Court — District of Columbia

Daniel Bean, Pro Hac Vice, Jared Burns, Pro Hac Vice, Christopher Westley Dempsey, Abel Bean Law, P.A., Jacksonville, FL, for Plaintiffs.

Douglas N. Letter, U.S. House of Representatives Office of General Counsel, Washington, DC, Dorothy Ames Jeffress, John Arak Freedman, Arnold & Porter Kaye Scholer LLP, Washington, DC, Noam Biale, Justin M. Sher, Sher Tremonte LLP, New York, NY, Paul Joseph Fishman, Arnold & Porter Kaye Scholer LLP, Newark, NJ, for Defendant Nancy Pelosi.

Douglas N. Letter, U.S. House of Representatives Office of General Counsel, Washington, DC, Noam Biale, Justin M. Sher, Sher Tremonte LLP, New York, NY, for Defendants Bennie G. Thompson, Elizabeth L. Cheney, Adam B. Schiff, Jamie B. Raskin, Susan E. Lofgren, Elaine G. Luria, Peter R. Aguilar, Stephanie Murphy, Adam D. Kinzinger, Select Committee to Investigate the January 6th Attack on the United States Capitol.

Loretta Lynch, Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Roberto J. Gonzalez, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, for Defendant J.P. Morgan Chase Bank, N.A.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

In the wake of last year's attempted insurrection, the House of Representatives established the Select Committee to Investigate the January 6th Attack on the United States Capitol. The House tasked the Committee with investigating and reporting the circumstances and causes of the riot and its interference with the peaceful transfer of power. In furtherance of that mission, the Committee issued subpoenas in late 2021 to Plaintiff Taylor Budowich and his bank, J.P. Morgan Chase Bank. The Committee sought Budowich's financial records, as it had reason to believe that he had directed significant funds from undisclosed sources to bankroll the promotion of the rally on the Ellipse that immediately preceded the attack on the Capitol. After Budowich sat for a deposition and produced responsive records, the bank — over his objection — also complied with the subpoena and disclosed documents to the Committee in late December.

Unhappy with this turn of events, Plaintiffs Budowich and his business, Conservative Strategies, Inc., brought this multiple-count lawsuit against Defendants Speaker Nancy Pelosi, the Select Committee, its members, and JPMorgan. Plaintiffs seek, among other things, the return of the produced documents. The Congressional Defendants and JPMorgan now separately move to dismiss on a number of grounds. Because the Constitution's Speech or Debate Clause bars the claims against the Congressional Defendants and because Plaintiffs’ variegated claims against JPMorgan bear their own assorted infirmities, the Court will grant Defendants’ Motions.

I. Background
A. The Select Committee

"On January 6, 2021, a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States." Trump v. Thompson, 20 F.4th 10, 15 (D.C. Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1350, 212 L.Ed.2d 55 (2022). The "rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol." Id. (citations omitted). In response to the attack, the House of Representatives adopted House Resolution 503, which established the Select Committee to Investigate the January 6th Attack on the United States Capitol. See H.R. Res. 503, 117th Cong. § 3(1) (2021).

The Resolution directs the Committee to "investigate the facts, circumstances, and causes relating to the domestic terrorist attack on the Capitol," "identify, review, and evaluate the causes of and the lessons learned from the domestic terrorist attack on the Capitol," and "issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures" as necessary. Id. § 4(a)(1)(3). Such "corrective measures" may include recommendations for any "changes in law, policy, procedures, rules, or regulations that could be taken" to prevent "future acts of violence ... including acts targeted at American democratic institutions." Id. § 4(c)(1).

The authorizing Resolution states that the Speaker of the House "shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader." Id. § 2(a). It also allows the Speaker to designate "one member to serve as chair of the Select Committee." Id. § 2(b). The Amended Complaint alleges that, during the relevant period in this case, the Committee operated with only nine members, seven of whom are Democrats and two of whom are Republicans. See ECF No. 30 (Am. Compl.), ¶ 77.

The Resolution also expressly incorporates Rule XI of the Rules of the House of Representatives. See H.R. Res. § 5(c). That incorporated rule, in turn, empowers the Committee "to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary." Rules of the U.S. House of Reps., 117th Cong., Rule XI.2(m)(1). It also states that such subpoenas "may be issued to any person or entity." Id., Rule XI.2(m)(3).

B. Factual and Procedural History

Taking the facts alleged in the Amended Complaint as true — as the Court must at this stage — on November 22, 2021, the Committee served Budowich, who lives in California, with a subpoena for production of documents and testimony at a deposition. See Am. Compl., ¶ 57. In a cover letter accompanying the subpoena, Chairman Bennie Thompson advised Plaintiff that the Committee had "credible evidence of [his] involvement in and knowledge of the events within the scope of the Select Committee's inquiry." ECF No. 30-1, Exh. A (Budowich Subpoena) at 4. More specifically, the cover letter stated, the Committee had "reason to believe" that Budowich had directed "approximately $200,000 from a source or sources that was not disclosed" to pay for an "advertising campaign to encourage people to attend the rally held on the Ellipse in Washington, D.C. on January 6, 2021, in support of then-President Trump and his allegations of election fraud." Id. (citations omitted). This rally occurred just "before the attack on the Capitol," with the speakers "urging the crowd to ‘fight much harder’ and to ‘stop the steal.’ " Id. at 5. The subpoena thus sought Plaintiff's deposition and documents concerning financial transactions related to the rally, among other things. Id. at 5–7.

Budowich substantially complied with the subpoena. On December 14, he produced 391 responsive documents, "including all financial account transactions for the time period December 19, 2020, to January 31, 2021, in connection with the Ellipse Rally." Am. Compl., ¶ 60; see also ECF No. 30-4, Exh. D (Budowich Response to Subpoena). He also made an additional production several days later. See Am. Compl., ¶ 61. Plaintiff then sat for a four-hour deposition on December 22, 2021, before the Committee in Washington, during which he "answered questions concerning payments made and received regarding his involvement in the planning" of the rally. Id., ¶¶ 63–64.

On November 23, meanwhile, the Committee also issued a subpoena to JPMorgan, Budowich's bank. Id., ¶ 4; see ECF No. 30-2, Exh. B (JPMorgan Subpoena). That subpoena sought Budowich's bank records dating back to October 2020. See JPMorgan Subpoena at 5–6. On December 16, Plaintiff's counsel notified JPMorgan that he "objects to JP Morgan Chase disclosing his customer/banking records to Congress without a warrant." ECF No. 30-5, Exh. E (Budowich Letter to JPMorgan) at 2. The bank responded to him days later, explaining that it "will comply with this subpoena in a timely manner unless it receives documentation legally obligating it to stop taking such steps." ECF No. 30-6, Exh. F (JPMorgan Letter to Budowich) at 2. It further advised Plaintiff that any such documentation must be received by December 24, the deadline for JPMorgan's response to the subpoena. Id.; see ECF No. 30-10, Exh. J, at 2. Having not received such documentation, JPMorgan produced a number of records responsive to the subpoena to the Committee on December 24. See Am. Compl., ¶ 73.

That same day, Budowich and Conservative Strategies filed this lawsuit against Speaker Pelosi, the Committee, its members, and JPMorgan. See ECF No. 1 (Complaint). They concurrently filed a Motion for Temporary Restraining Order, which the Court denied without prejudice as moot after a hearing on December 29. See Minute Order of Dec. 29, 2021. Plaintiffs refiled an Amended Motion for Temporary Restraining Order days later, which the Court again denied after allowing for briefing and holding another hearing. See ECF No. 27 (TRO Hearing Transcript) at 32–34.

In early February 2022, the parties submitted a Joint Status Report. The Congressional Defendants explained that, "to their knowledge, they have received all of the financial records requested, and do not anticipate issuing any more subpoenas to Defendant JPMorgan concerning Plaintiffs." ECF No. 28 (JSR of Feb. 3, 2022) at 1. They further stated that they believed that the initial subpoena "does not compel production of more financial records beyond Defendant JPMorgan's production made on December 24, 2021." Id. at 2. JPMorgan, for its part, stated that it "has no present intention to produce additional documents pursuant to the subpoena." Id.

Later in February, Plaintiffs filed an Amended Complaint against the Congressional Defendants and JPMorgan. See Am. Compl. at 1–2. This pleading — the operative one here — contains nine counts. Id., ¶¶ 115–95. Two allege...

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