Judicial Watch, Inc. v. Schiff

• Citation: 998 F.3d 989
• Decision Date: 04 June 2021
• Docket Number: No. 20-5270,20-5270
• Parties: 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
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

998 F.3d 989

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

No. 20-5270

United States Court of Appeals, District of Columbia Circuit.

Argued March 24, 2021

Decided June 4, 2021

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 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 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, 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, 92 S.Ct. 2531, 33 L.Ed.2d 507 (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, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) (quoting United States v. Johnson , 383 U.S. 169, 178, 86 S.Ct. 749, 15 L.Ed.2d 681 (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, 95 S.Ct. 1813 ). Thus, the Clause provides immunity from both criminal and civil suits. See Eastland , 421 U.S. at 502–03, 95 S.Ct. 1813. And although it speaks of "Speech or Debate," it extends to protect all "legislative acts." Doe v. McMillan , 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (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 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, 92 S.Ct. 2614, 33 L.Ed.2d 583 (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, 95 S.Ct. 1813, 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, 92 S.Ct. 2614.

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 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, 95 S.Ct. 1813 ; 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, 95 S.Ct. 1813 ; see also McSurely , 553 F.2d at 1286. "The wisdom of congressional approach or methodology is not open to judicial veto." Eastland , 421 U.S. at 509, 95 S.Ct. 1813. "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 F.3d at 24 (citing Kilbourn v. Thompson , 103 U.S. 168, 203, 26 L.Ed. 377 (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...