Russiagate, Privilege for Me but Not For Thee

Saturday, March 21, 2020
Russiagate is barely clinging to life, with WuFlu dominating the news. Nevertheless, I persist.

Judicial Watch: House Lawyers for Adam Schiff Assert Privilege over Schiff Subpoenas of Impeachment Phone Records
Judicial Watch announced today that Representative Adam Schiff (D-CA) and the U.S. House Permanent Select Committee on Intelligence asked the U.S. District Court for the District of Columbia to dismiss the lawsuit against them for the controversial impeachment-related subpoenas for phone records, including those of Rudy Giuliani, President Trump’s lawyer. Schiff and the Committee are being represented by the Office of General Counsel for the House of Representatives.

The phone records led to the publication of the private phone records of Giuliani, Congressman Devon Nunes, journalist John Solomon, Trump attorney Jay Sekulow, attorney Victoria Toensing, and other American citizens.

In their 14-page motion Schiff and the Committee claim “sovereign immunity;” “Speech or Debate Clause” privilege; immunity from FOIA and transparency law; that the records are secret; and that Judicial Watch and public do not need to see them.

Judicial Watch filed its lawsuit under the public’s common-law right of public access to examine government records after it received no response to a December 6, 2019, records request (Judicial Watch v. v Adam Schiff and U.S. House Permanent Select Committee on Intelligence (No. 1:19-03790)):
  • All subpoenas issued by the House Permanent Select Committee on Intelligence on or about September 30, 2019 to any telecommunications provider including, but not limited to AT&T, Inc., for all records of telephone calls of any individuals
  • All responses received to the above subpoenas.
Schiff is a member of the U.S. House of Representatives, currently serving as chairman of the United States House Permanent Select Committee on Intelligence. Schiff is being sued in his capacity as Chairman of that committee.
. . .
“Schiff’s new court filing to try to avoid disclosing his abusive subpoenas of confidential phone records suggests he and Congress can secretly subpoena and publish the phone records of any American with zero accountability under law to the people,” stated Judicial Watch President Tom Fitton. “Speaker Pelosi and every House member should be asked if they agree that they are above the law and can spy on any American.”
Just The News (JTN, henceforth), Schiff claims 'immunity' in bid to keep impeachment phone subpoenas secret
In the motion, lawyers from the Office of General Counsel for the House of Representatives assert four reasons for dismissing the case, including protection under the Constitution’s Speech or Debate Clause.

“First, the doctrine of sovereign immunity deprives the Court of jurisdiction over the House Defendants, and no express and unequivocal waiver exists,” the argument says. “Second, given that the records sought by Plaintiff involve matters pursued and obtained by the House Defendants as part of the House-authorized impeachment inquiry, they are absolutely protected by the Speech or Debate Clause.”

“Third, Plaintiff fails to state a claim because Congress has created a comprehensive scheme for the review of government records—the Freedom of Information Act (FOIA)—that preempts the common law right sought to be vindicated by this litigation,” the lawyers write. “Finally, under governing case law, the records Plaintiff seeks to review are not 'public records' and, therefore, are not subject to the common law right of public access. And even if the records are 'public records,' Plaintiff has not demonstrated that the public interest in disclosure outweighs the House Defendants’ interest in non-disclosure.”
How about a good old fashioned leak?
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