Is a House Vote Required to Release the Clemens Tape?

Last week the Clemens defense team asked the judge to grant it access to the audiotape of the February 5, 2008 deposition in which congressional staff questioned Clemens regarding his use of steroids. COGR had previously provided the prosecution and defense with the transcript of this deposition, at which Clemens made many of the alleged false statements with which he is charged, but the tape has apparently never been released. According to this report, however, “a lawyer for the House appeared in court Wednesday and told U.S. District Judge Reggie Walton that the House clerk has the tape and it can only be released by a House resolution.”

I infer from the House’s position that the tape has been archived under House Rule VII, which provides in part that “[a]t the end of each Congress, the chairman of each committee shall transfer the records to the Clerk any noncurrent records of such committee.” Once the records have been transferred to the Clerk (who stores them at the Center for Legislative Archives in the National Archives), their public availability is governed by other provisions of Rule VII.

Any committee record that was not public prior to archiving will remain unavailable to the public for at least 30 years (unless an order of the committee during the Congress in which the record was created provides for a different period). However, more sensitive committee records, such as “[a]n investigative record that contains personal data relating to a specific living person (the disclosure of which would be an unwarranted invasion of personal privacy) . . . or a record relating to a hearing that was closed under clause 2(g)(2) of rule XI,” are kept closed for 50 years. Thus, under normal circumstances the Clemens tape would not be available to the public until 2038 at the earliest, and possibly not until 2058.

If Clemens issues a subpoena for the tape, however, as the article indicates he will, Rule VII would not provide the governing authority. House Rule VIII governs responses to subpoenas, and Clause 5(a) of Rule VII provides that “[t]his rule does not supersede rule VIII.” Thus, it would seem that the tape would have to be produced in response to a subpoena unless the provisions of Rule VIII dictate otherwise.

One relevant part of Rule VIII is the requirement that the recipient of a subpoena certify that compliance would be “consistent with the rights and privileges of the House.” Since the audiotape of the Clemens would be privileged under the Speech or Debate Clause (at least in the D.C. Circuit), it might be argued that producing it would be inconsistent with the rights and privileges of the House. But it would seem odd to say that this provision requires a vote of the House to release the audiotape. After all, COGR has acted as the holder of the privilege in the Clemens case and has chosen to assert or waive the privilege in various contexts. Why would permission of the House be required to waive the privilege as to the tape?

The only other relevant provision is Clause 6(b) of Rule VIII, which provides that “[u]nder no circumstances may minutes or transcripts of executive sessions, or evidence of witnesses in respect thereto, be disclosed or copied.” The term “executive session” most clearly refers to committee meetings or hearings that are closed by a vote of the committee pursuant to House Rule VI. House parlance often uses the term “executive session materials” to refer more broadly to non-public materials, particularly of an investigative nature, but I am not sure whether there is any specific House precedent as to whether those materials generally, or staff depositions in particular, would qualify as “executive session” within the meaning of Clause 6(b). Absent such precedent, I would expect that the Parliamentarians would be consulted on the proper interpretation of Clause 6(b).

Even if staff depositions are considered to be “executive sessions” under Clause 6(b) of Rule VIII, however, it seems very doubtful that this provision would justify withholding of the tape under the present circumstances. After all, the “transcript” of this “executive session” has already been released. Any interest that the House might have had in keeping the deposition confidential has already been eliminated.

I could be wrong, but I am skeptical that the Parliamentarians would insist on a vote of the House under these circumstances.