Republican Nat'l Comm. v. Pelosi
| Decision Date | 01 May 2022 |
| Docket Number | Civil Action No. 22-659 (TJK) |
| Citation | 602 F.Supp.3d 1 |
| Parties | REPUBLICAN NATIONAL COMMITTEE, Plaintiff, v. Nancy PELOSI et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Julian Ellis, Pro Hac Vice, Brownstein Hyatt Farber Schreck, LLP, Denver, CO, Christopher O. Murray, Statecraft PLLC, Denver, CO, for Plaintiff.
Douglas N. Letter, Eric Randal Columbus, U.S. House of Representatives Office of General Counsel, Washington, DC, for Defendants Nancy Pelosi, 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.
Jacob Alan Sommer, Marc J. Zwillinger, Zwillgen PLLC, Washington, DC, for Defendant Salesforce.com, Inc.
On January 6, 2021, a mob attacked the U.S. Capitol as the House of Representatives and Senate were set to count and certify the Electoral College vote for the 2020 presidential election. Later that year, the House established the Select Committee to Investigate the January 6th Attack on the United States Capitol and tasked it with investigating, among other things, the causes of the attack. The Select Committee asserts that some in the mob that day were motivated by claims that the 2020 presidential election was fraudulent or stolen—claims advanced in emails sent by the Republican National Committee and former President Trump's campaign. For that reason, the Select Committee issued a subpoena for related documents and testimony to a third-party vendor for the RNC. The RNC, in turn, sued Speaker Nancy Pelosi, the Select Committee, its members, and the third-party vendor, to challenge the subpoena on several grounds.
This case presents an unusual thicket of procedural and substantive issues, in part because of the way the Select Committee decided to defend the case; in part because of the exceedingly rare spectacle of a congressional committee subpoenaing the records of one of our country's two major political parties; and in part because those records reside with the RNC's third-party vendor, rather than the RNC itself. After navigating the thicket, for the reasons explained below, the Court will dismiss the claims against all defendants except the third-party vendor as barred by the Constitution's Speech or Debate Clause, dismiss as moot one of the claims against the third-party vendor, and enter judgment against the RNC on the rest of its claims against the third-party vendor.
The 2020 presidential election was held on November 3, 2020. On December 14, 2020, the Electoral College met, and a majority of the electors cast their votes for Joseph R. Biden and Kamala D. Harris. See ECF No. 17 at 19. On January 6, 2021, a mob attacked the U.S. Capitol, where the House and Senate were set to count and certify the Electoral College vote. According to the RNC, "[m]any in the mob intended to interfere" with Congress's counting and certification. ECF No. 8-1 at 9–10. And some "attacked Capitol police officers, vandalized portions of the Capitol itself, and forced their way into the Senate chamber." Id. at 10. At the time, the RNC described the events of the day as "an attack on our country and its founding principles." Id.
On June 30, 2021, the House of Representatives established the Select Committee to Investigate the January 6th Attack on the United States Capitol ("Select Committee"). See H.R. Res. 503, § 1, 167 Cong. Rec. H3322–24, H3335 (June 30, 2021). The House instructed the Select Committee to "investigate and report upon the facts, circumstances, and causes relating to" the attack, including "the influencing factors that fomented" it. Id. § 3(1). To fulfill that task, the House empowered the Select Committee to investigate "how technology ... may have factored into the motivation, organization, and execution" of the attack, id. § 4(a)(1)(B), including by examining the roles of any relevant "public and private" entities, id. § 4(a)(1)(C). The Select Committee must issue a "final report" to the House containing "such findings, conclusions, and recommendations for corrective measures ... as it may deem necessary." Id. § 4(a)(3). These "corrective measures" include 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." H.R. Res. 503, § 2(a). And it empowers the Speaker to designate "one member to serve as chair of the Select Committee." Id. § 2(b).
On July 1, 2021, Speaker of the House Nancy Pelosi appointed eight members to the Select Committee—Representative Bennie Thompson as Chair and Representatives Zoe Lofgren, Adam Schiff, Pete Aguilar, Liz Cheney, Stephanie Murphy, Jamie Raskin, and Elaine Luria as members. See 167 Cong. Rec. H3597 (July 1, 2021). House Minority Leader Kevin McCarthy recommended five more members to Speaker Pelosi: Representative Jim Banks (to serve as Ranking Member) along with Representatives Rodney Davis, Jim Jordan, Kelly Armstrong, and Troy Nehls. See ECF No. 6 ¶ 68; ECF No. 17 at 24. Speaker Pelosi agreed to appoint Representatives Davis, Armstrong, and Nehls but declined to appoint Representatives Banks and Jordan, and she asked Minority Leader McCarthy to recommend two other members. ECF No. 6 ¶ 69; ECF No. 17 at 24–25 & n.39. That same day, Minority Leader McCarthy decided to withdraw all five of his recommended appointees in protest. ECF No. 6 ¶ 70; ECF No. 17 at 25 & n.40. A few days later, Speaker Pelosi appointed Representative Adam Kinzinger as the ninth member of the Select Committee. See ECF No. 6 ¶ 70; 167 Cong. Rec. H3885 (July 26, 2021). Since then, the Select Committee has operated as a nine-member body. See ECF No. 6 ¶¶ 67, 70, 86, 118; ECF No. 17 at 25. On September 2, 2021, Chairman Thompson named Representative Cheney "Vice Chair" of the Select Committee. ECF No. 6 ¶ 71; ECF No. 17 at 25.
The Select Committee's authorizing resolution establishes its procedures, including those procedures relating to the issuance of subpoenas. See H.R. Res. 503, § 5. Among other things, it makes Rule XI of the Rules of the House of Representatives applicable to the Select Committee. See id. § 5(c). Rule XI, Clause 2(m)(3)(A)–(D) permits a House committee to issue investigative subpoenas for documents or testimony to "any person or entity." See Rules of the House of Representatives , 117th Cong. (Feb. 2, 2021). The authorizing resolution also provides that the Chair of the Select Committee, "upon consultation with the ranking minority member, may order the taking of a deposition, including pursuant to a subpoena, by a Member or counsel of the Select Committee." See id. § 5(c)(6)(A).
On February 23, 2022, Chairman Thompson issued a subpoena to Salesforce.com, Inc. ("Salesforce"). See ECF No. 6 ¶ 2; ECF No. 8-3 at 2. The subpoena ordered Salesforce to produce documents by March 9, 2022 and to testify at a Select Committee deposition on March 16, 2022. See ECF No. 8-3 at 2.
In a cover letter accompanying the subpoena, Chairman Thompson laid out the Select Committee's rationale for issuing it to Salesforce. According to the letter, "[i]nformation provided to the Select Committee and public reporting indicate that during the 2020 election cycle, Salesforce provided its services to President Donald Trump's reelection campaign and to the [RNC]" and that between November 3, 2020 and January 6, 2021, "the Trump campaign and the RNC jointly sent out hundreds of emails to supporters using a Salesforce-owned tool." ECF No. 6-1 at 4. The letter cited public reports characterizing the tenor of the emails as "inflammatory, with nearly every email suggesting that the election was fraudulent, that Democrats had stolen the election, and that Congress needed to be pressured to overturn the results to keep Trump in power." Id. The letter also stated that those same reports noted that nearly every email asked supporters to donate money. Id. at 4–5. The letter highlighted one email, allegedly sent on January 6, that read:
We have the TRUTH ... TODAY will be a historic day in our Nation's history .... Every single Patriot from across the Country must step up RIGHT NOW if we're going to successfully DEFEND the integrity of this Election. President Trump is calling on YOU to bolster our Official Defend America Fund .
Id. at 5. The letter asserted that the Select Committee had evidence that "numerous defendants" facing January 6-related charges were motivated by "false claims about the election." Id. at 5. And it noted that, according to public reports, Salesforce itself had acknowledged that, because "there remain[ed] a risk of politically incited violence across the country," it had taken "action to prevent [the RNC's] use of our services in any way that could lead to violence." Id.
For these reasons, the Select Committee informed Salesforce that it was subpoenaing information "regarding whether and how the Trump campaign used Salesforce's platform to disseminate false statements about the 2020 election" in the lead-up to January 6. ECF No. 6-1 at 5. The schedule accompanying the subpoena specified five categories of records demanded. See id. at 6. Specifically, the subpoena demanded information "referring or relating to" these topics:
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