House Mulls Appeal of SEC Subpoena Decision

Judge Gardephe of the federal district court for the Southern District of New York has issued his long-awaited ruling in SEC v. Committee on Ways & Means, an enforcement action by the SEC to require the House committee and its former subcommittee staff director to comply with administrative subpoenas. The court rejected the House’s broadest arguments (by which it sought to avoid compliance with the subpoenas entirely), but it issued guidelines allowing the House to withhold certain information pursuant to the Speech or Debate Clause. The House was initially given ten days to comply with the subpoenas as limited by the court’s ruling (which would have meant complying during the week of Thanksgiving).

Personally, I think the decision was about as favorable to the House as reasonably could be expected (with one exception, which I will get to in a minute). It should have been no surprise that the court rejected the House’s sovereign immunity argument (see here and here). Judge Gardephe surveyed prior case law on inter-branch subpoenas and flagged House Rule VIII, which expressly mandates compliance with administrative subpoenas. See op. at 12-18. He concluded: “Given that no court has ever held that sovereign immunity applies to an inter-branch subpoena, and given that House rules appear to acknowledge that no blanket sovereign immunity applies to an administrative subpoena issued by a Federal agency to the House, a House member, or House staff, this Court concludes that sovereign immunity has no application here.” Id. at 18. Moreover, even if sovereign immunity applied, the court found that Congress waived it for these purposes by passing the STOCK Act. Id. at 21.

On Speech or Debate, the court agreed with the House on two key issues. First, it agreed that the Clause provides a non-disclosure privilege for documents reflecting legislative acts, disagreeing with the Third and Ninth Circuit position that Speech or Debate is merely a non-use privilege with regard to documentary evidence. Op. at 63. The court noted: “Whether an Executive Branch subpoena seeks testimony from a Member concerning a ‘legislative act’ or documents that fall ‘within the sphere of legitimate legislative activity’ is, in this Court’s view, immaterial under the Speech or Debate Clause. . . . The issuance of such subpoenas, and a judicial practice of enforcing them, also presents a significant risk of intimidation, and upsets the checks and balances the Framers envisioned, and put in place.” Id. at 58.

Second, the court agreed that the Speech or Debate Clause protects both formal and informal legislative information gathering. Op. at 58. Although the court did not define precisely the outer boundaries of informal information gathering, it seemed to take a broad view of this activity, explicitly noting that it would “extend to a legislator’s gathering of information from federal agencies and from lobbyists.” Id. at 49. Thus, for example, communications from the Greenberg law firm to Brian Sutter, the committee staffer, could be protected if they were part of the committee’s “informal information gathering concerning a matter that might be the subject of legislation.” Id. at 64.

These victories may not benefit the House much in the short term because the court’s opinion allows the SEC to obtain the information it primarily seeks, i.e., whether Sutter tipped off a Greenburg lobbyist as to a pending decision on Medicare reimbursement rates. (This result is not surprising either.) But over the longer term the court’s language and reasoning provide a useful precedent for House lawyers seeking to protect the institution from intrusive subpoenas.

There is, however, one exception. The court ordered the House to provide a privilege log for any documents that it withheld on the basis of the Speech or Debate privilege. House and Senate lawyers have always resisted providing such logs, arguing that requiring them itself intrudes on the privilege. As far as I know, neither the House nor Senate has provided such a log in the past. Requiring them as a routine matter, at least, would place a burden on Congress’s exercise of the privilege that its counsel would rather avoid.

In any event, the House has requested an extension of time to comply with the court’s order, stating that it needs to consider whether or not to appeal. Citing both the sovereign immunity and privilege log issues in particular, the House explains that the court’s ruling presents “multiple issues of tremendous institutional importance to the U.S. House of Representatives, and our structure of government in general.”

In response to the House’s request, Judge Gardephe has extended the deadline to December 7. Stay tuned.