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Speech or Debate and Nondisclosure

Now I will turn to the question of whether the Speech or Debate Clause should be read to encompass a “nondisclosure” privilege, which would protect Members of Congress from being required to produce information regarding their legislative activities. Following the hypothetical in my last post, suppose the Justice Department serves Senator Smith with a grand jury subpoena seeking production of all documents relating to the debt limit. Let’s say that responsive documents would include some that could not be used against Senator Smith, like a copy of the floor speech, because to do so would violate the non-use branch of Speech or Debate. Other responsive documents would include some that could be used against him because they do not fall within the “legislative sphere” (examples might include correspondence from constituents expressing their views on the debt limit). Still other documents could be used only if portions were redacted.

Can one characterize this document subpoena as a “questioning “ of Senator Smith or his legislative acts? Perhaps, but it is more difficult to do so than in the case where Senator Smith is literally being questioned on the witness stand. To use the analogy of the Fifth Amendment context, a document subpoena does not ordinarily require the recipient to make a testimonial response (i.e., to provide any information from his or her personal knowledge). Senator Smith could, for example, turn over to a third party the task of reviewing his documents to determine which are responsive to the subpoena.

Moreover, while a document subpoena could conceivably be characterized as a “questioning,” there are alternative methods that the Justice Department could use to obtain Senator Smith’s documents, such as a search warrant. As a literal matter, it would be very difficult to say that a search of Senator Smith’s office would be “questioning” him. From the standpoint of separation of powers, on the other hand, it seems incongruous to treat a search more favorably than a document subpoena.

What about from the standpoint of the purpose of the Speech or Debate Clause? If the purpose is to prevent a Member from being held legally accountable for any speech or debate, a document subpoena would seem to pass muster as it does not seek to hold the recipient accountable. It seems unlikely that a Member would be chilled in the performance of her legislative duties by the possibility of a document subpoena.

If the purpose of the Speech or Debate Clause were to prevent a Member from being distracted from her legislative and other responsibilities, one could argue that a document subpoena has some distracting effect. But it seems unlikely that avoiding distraction is a core purpose of the Clause. After all, the Constitution directly addresses the far more “distracting” case of a Member being arrested while Congress is in session- and places only a very minor limitation on such arrests. Thus, the Ninth Circuit was justified in finding that “legislative distraction is not the primary ill the Clause seeks to cure.” Renzi, slip op. at 8546. Moreover, the distraction caused by a document subpoena is relatively minor and recognizing a nondisclosure privilege would have only a marginal impact on this minor distraction. A nondisclosure privilege would merely allow Senator Smith to withhold certain documents, but he would still be required to produce non-legislative documents (and possibly to produce others in redacted form).

If the purpose of the Clause is to avoid having a Member’s legislative motives impugned or questioned, the question is a closer one. Arguably, a grand jury subpoena for Senator Smith’s documents related to the debt limit would have that effect, at least in the court of public opinion.

But there is a poor fit between the asserted purpose and the remedy of providing a nondisclosure privilege for legislative documents. For one thing, it is the fact of a grand jury investigation, not the subpoena itself, which is likely to be the source of any “questioning” of Senator Smith’s motives. Moreover, recognizing a nondisclosure privilege would not even prohibit a document subpoena, but would merely allow Senator Smith to withhold certain responsive documents. Finally, the nondisclosure privilege would apply even in cases where Senator Smith’s legislative motives are not at issue, such as where the investigation relates to third-party crime.

The most obvious rationale for a nondisclosure privilege would be to protect the confidentiality of certain legislative communications or other matters. There is, however, also a poor fit between the Speech or Debate Clause and any confidentiality interest that legislators may have. The protections of Speech or Debate apply to documents and information which are not confidential or which are matters of public record (e.g,, Senator Smith’s speech itself). Furthermore, there are some categories of documents, such as constituent requests for assistance, where there is a legitimate confidentiality interest but no claim for protection under the Speech or Debate Clause.

These considerations have impelled the Third Circuit to reject the nondisclosure privilege. See In re Grand Jury Proceedings, 563 F.2d 577, 584 (3d Cir. 1977) (“[T]he privilege is one of nonevidentiary use rather than nondisclosure.”). In a case involving a grand jury subpoena to obtain a Member’s telephone records, the court opined that Speech or Debate was different than privileges designed to protect “socially desirable confidential relationships,” such as attorney-client or physician-patient. In re Grand Jury Investigation (Eilberg), 587 F.2d 589, 596 (3d Cir. 1978). The Speech or Debate privilege “is not designed to encourage confidences by maintaining secrecy, for the legislative process in a democracy has only a limited toleration for secrecy.” Id. at 597.

To the extent that the Third Circuit suggests that there are no valid reasons for protecting legislative confidences, I disagree. In fact, the Third Circuit itself, in a brief and unpublished 1996 opinion, refused to order the House Ethics Committee to produce confidential documents in response to a subpoena in the criminal trial of former Congressman McDade. The court is correct, however, that the Speech or Debate Clause was not designed for protecting confidences and seems to be ill-suited for that purpose.

Thus, the language and purposes of the Speech or Debate Clause provide scant justification for a nondisclosure privilege. Perhaps we can shed more light on the subject from examining the practice and precedents of our English cousins. I will turn to that in my next post.

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