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Archive of posts filed under the Congressional Privileges category.

BLAG, the Act of Production Doctrine and the Schock Case

Recent filings in the criminal case against former congressman Aaron Schock (see my last post) brought to my attention that a number of pleadings in the Schock grand jury proceedings have been unsealed. Among these were two briefs filed by the House Counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) as amicus curiae [...]

Some Schocking Information About Congressional Records

Former congressman Aaron Schock, under investigation for financial misconduct while in office, has been in various disputes with the Justice Department about documents prosecutors are seeking from him. One of those disputes involves the somewhat peculiar legal status of documents from a Member’s personal congressional office. So the blog having been on hiatus for a [...]

Would the House’s Sovereign Immunity Position Bar its Suit against the President?

This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified [...]

The House All In on Sovereign Immunity

The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question. The House relies primarily on a Second Circuit case, In re SEC ex [...]

The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony. A May 19 letter from the House General Counsel lays out 11 [...]

The Office of Compliance and a Mysterious Rule VIII Notice

In case you forgot, Rule VIII is the House rule that governs when a judicial or administrative subpoena is served on a member, officer or employee for documents or testimony relating to the official functions of the House.  The rule requires that notice be given to the House, through the Speaker, whenever such a subpoena [...]

A Point of Order Final Exam

Consider the following facts: Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under [...]

More on the Clemens Subpoena

As promised in my last post, I want to follow up on the Speech or Debate argument made by COGR in support of its motion to quash the Clemens subpoena. At first blush, there would not seem to be much to discuss.  There is little question that the type of oversight and investigative committee records [...]

Roger Clemens, Congressional Privilege, and the Right to a Fair Trial

The House Committee on Oversight and Government Reform (COGR) has moved to quash the Clemens subpoena on the grounds that the investigative documents sought are protected by Speech or Debate.  I will discuss COGR’s substantive Speech or Debate argument in a future post; for now I want to focus on the relationship between the Speech or Debate privilege and [...]

And You Thought No One Read Point of Order

By letter of March 11, the Committee on Oversight and Government Reform corrected its prior notice to reflect that the subpoena it received was in a criminal, not a civil, case.  One mystery solved. Tweet