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 the Clinton administration to sabotage Iran’s nuclear program by giving flawed blueprints for key components to a Russian nuclear scientist who had defected. The idea was that the Russian scientist, who was covertly working for the CIA, would feed the flawed designs to the Iranians. But according to the book, the CIA’s efforts went awry when the scientist got nervous and instead tipped off the Iranians to the flaws in the designs.”

The operation, codenamed “Merlin,” was sort of like a nuclear “Fast and Furious.”

Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.

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An Alternative to Speech or Debate

My last three posts (see here, here and here) suggest that a nondisclosure privilege would be an awkward fit with the text, purpose and history of the Speech or Debate Clause. A final consideration that militates against a nondisclosure privilege is the absolute nature of the Clause. If the Clause protects against disclosure of legislative information, it stands as an absolute bar to compelled disclosure of such information, no matter how relevant and admissible it might be. (Note that even the most “privileged” Speech or Debate materials may be admissible in evidence against a non-legislative party).

In rejecting the nondisclosure privilege asserted by former congressman Renzi, the Ninth Circuit stressed the absolute nature of the privilege. The court specifically pointed out that any nondisclosure privilege would prohibit review of legislative documents by the judicial branch just as much as by the executive. See Renzi, slip op. at 8552 (“If the Clause applies, it applies absolutely- there is no balancing of interests nor any lessening of the protection afforded depending on the branch that perpetrates the intrusion.”). Among other things, this would make it impossible for the courts to resolve privilege claims without first violating the nondisclosure privilege.

For all of these reasons I conclude that the Renzi court was correct in rejecting a nondisclosure privilege under the Speech or Debate Clause. I reach this conclusion reluctantly, however, because some legislative information should have protection from disclosure. Certain legislative documents, such as executive session materials and confidential ethics opinions, clearly warrant protection. There is a strong case that other legislative material, such as committee investigatory files, deliberative legislative documents, and confidential constituent correspondence, merit at least qualified protection.

There seems to be no reason why the scope of protection should follow the contours of the Speech or Debate Clause. The executive and judicial branches, neither of which is covered by Speech or Debate, enjoy protections from disclosure for certain types of confidential communications and other information.

The courts have ample power under the Federal Rules of Evidence to develop the contours of a legislative privilege outside of the Speech or Debate Clause, although they have not done so to date. The possibility is suggested by the Supreme Court’s decision in United States v. Gravel, 408 U.S. 606 (1972) which involved a grand jury investigation of the illegal leaking and publication of the Pentagon Papers. Referring to the possibility that Rodberg, a congressional aide, might be questioned about the activities of non-legislative actors who were unprotected by Speech or Debate, the Court stated: “As for inquiry of Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.” Id. at 629.

The inference is unmistakable that the district court should use its authority to prohibit inquiry into congressional activities that, although not protected from disclosure by Speech or Debate, were “no proper concern” of the other branches. A similar approach could carve out categories of congressional documents that are appropriately privileged from compelled production.

I don’t know whether the Court, should it grant cert in Renzi, would have the opportunity to consider if there is a legislative nondisclosure privilege outside of Speech or Debate. But at least it should not foreclose the possibility.

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.