Interesting Speech or Debate Clause Issue in Devin Nunes' Libel Lawsuit Against NBC

From yesterday's opinion by Magistrate Judge Sarah Netburn (S.D.N.Y.) in Nunes v. NBCUniversal Media, LLC:

The discovery issues before the Court may present questions of first impression. Because the parties did not adequately address these matters, the Court requests additional briefing.

Specifically, the Court seeks supplemental briefing on who is the holder of the constitutional Speech or Debate privilege asserted by counsel for the House Permanent Selection Committee on Intelligence ("HPSCI"). Assuming that the privilege is held only by a Member of Congress, and not a legislative committee, does a Member waive the privilege when he initiates a civil lawsuit about matters protected by the privilege? Alternatively, if the filing of a lawsuit does not constitute a wholesale waiver of the matter at issue, may a Member selectively waive the privilege as to certain relevant matters but not others? …

On March 18, 2021, when Devin G. Nunes, the Plaintiff, was a Member of Congress, NBCU, through a telecast of The Rachel Maddow Show, published a single allegedly defamatory statement: "[Devin Nunes] has refused to hand [the Derkach package] over to the F.B.I." "The Derkach package" refers to a package sent by Andriy Derkach, reportedly a Russian agent who attempted to influence the 2020 U.S. presidential election. According to Nunes, he "did not accept a package from Derkach." Rather, Nunes claims that the "package came to the House Intelligence Committee," and he "immediately turned the package over to the F.B.I."

A central issue is whether Nunes gave the Derkach package to the FBI. During the deposition of Nunes's former Director of Communications, Jacob Langer, counsel for the HPSCI repeatedly objected to questions about this subject by asserting the Speech or Debate privilege.

At Langer's deposition, HPSCI counsel invoked the Speech or Debate Clause privilege in response to questions on: (1) the receipt, handling, and transfer of the Derkach package; (2) communications with HPSCI members about the package; and (3) a July 29, 2020 HPSCI business meeting. For his part, Nunes takes a different view; Nunes asserts that Langer could testify about whether the package was delivered to the FBI, an executive agency, but that the privilege would protect against testimony that is "purely about HPSCI or its internal operations."…

The Speech or Debate Clause provides that, "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." The Clause "provides Members of Congress with two distinct privileges." First, the Clause confers immunity on legislators and their aides "from liability for their actions within the 'legislative sphere.'" Second, the Clause protects legislators and their aides from answering questions or providing documents related to legislative acts. This dispute concerns the evidentiary privilege.

The purpose of the Speech or Debate Clause privilege is "to prevent intimidations of legislators by the Executive and accountability before a possibly hostile judiciary" and to "protect a legislator from the burden of defending himself." The Court has been unable to locate a case where a Member initiated a civil lawsuit against a private party and then asserted the Speech or Debate Clause to withhold discovery.

The privilege is "invocable only by the Senator or by the aide on the Senator's behalf." Thus, when "construing the privilege a Member and his aide are to be 'treated as one. Relatedly, a Member may assert only his own privilege; he may not assert the privilege of others.

The Speech or Debate Clause privilege is absolute. A Member, however, may waive the privilege. Waiver of the Speech or Debate Clause's immunity privilege "can be found only after explicit and unequivocal renunciation of the protection."

The parties' briefing focuses on the scope of the privilege asserted by counsel for the HPSCI. But no one addresses who holds the privilege and whether Nunes's has waived his privilege for the matters at issue by filing this lawsuit. Accordingly, the Court seeks supplemental briefing. The parties and HPSCI shall address:

• Who holds the privilege that applies to Langer's testimony? To the extent the privilege applies differently to other witnesses, the parties and HPSCI should discuss that.
• If the privilege is exclusively held by Nunes, did Nunes waive the privilege as to all matters at issue in this litigation by filing this lawsuit? If the lawsuit does not constitute a waiver, what issues of fundamental fairness and due process should the Court consider?
• To the extent that this lawsuit does not act as a wholesale waiver of all matters at issue, may Nunes selectively waive the privilege as to certain matters but not others, as he suggests?
• Any other issue that bears on the Court's consideration of this…