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…

Comments

[ReaderY]

My off-the-cuff thought is that a Member of Congress who initiates a defamation action concerning statements about actions covered by the Speech and Debate Clause retains the privelege. But a Member-plaintiff who asserts the privelege cannot introduce evidence that the defendant is effectively prevented from cross-examining or discovering contrary evidence about on a critical issue, because doing so would violate the Defendant’s Due Process rights to mount a defense.

This in practice would generally give a Member in this situation the option of pursuing the claims and waiving the privelege or dropping the claims.

But a situation is conceivable where asserting the privelege would not unduly prejudice the defendant or prevent the defendant from contradicting the plaintiffs claims and evidence on critical issues. So I don’t think there would be a blanket rule that a Memebr AUTOMATICALLY waives the privelege by filing a suit. I think the issue has to be adjudged on a case-by-case basis, and a Member-plaintiff would be forced to choose only when asserting the privilege unduly inhibits the defendant from mounting a defense. Moreover, waiver, when it occurs, would not be general, but would only apply to the specific material necessary to permit the Defendant to exercise constitutional defense rights.

Were waiver always to occur, or to be general, merely filing a lawsuit would permit a fishing expedition into confidential Congressional matters, detering members of Congress from filing lawsuits and inhibiting them from asserting their rights. They could be defamed or otherwise affronted with impunity.

[ReaderY]

The practical affect would be a defendant would have to show more to get discovery than just relevance as an ordinary defendant would. The privilege would require a higher standard to overcome. And discovery couldn’t be compelled in the ordinary way. The privilege would give a member of Congress the option of dropping the evidence or claim being countered rather than comply, without consequences.

[Squirrelloid]

Of course, it doesn't appear to be Nunes who is claiming privilege here. It is the House Committee lawyer who is claiming the problematic privilege.

Nunes either doesn't believe privilege applies to the key question (the delivery of the package to the FBI), or would waive it.

Should Nunes be prevented from filing suit because lawyers for another party claim privilege?

[Lee Moore]

Seems to me that in this case, the question would be a lot easier to answer if SCOTUS had not previously extended the privilege which the Constitution reserves to Senators and Representatives, to their aides.

Which was simply an opportunistic taking of sides, since Sen Gravel's aides were on the right (ie anti war) side.

[John F. Carr]

Under New York law does a public figure plaintiff need to prove falsity? (I presume New York law applies.)

[Ridgeway]

I thought falsity was an element of all libel claims in the US (unlike the UK).

[John F. Carr]

In one of the libel cases Professor Volokh posted about a year or two ago New York put the burden on the defendant.

[mydisplayname]

This is interesting... and is a reminder to me that I should be more precise in my wording. For example, I should insert "to those who are not Members of Congress (and their aides)" in a statement I frequently make.

[Stephen Lathrop]

Looks like an incomprehensible mess. Can anyone even explain how Nunes who initiates the action outside Congress is being questioned elsewhere than Congress at some other party's initiative? Is Nunes trying to assert both a right to accuse libel, and a shield against discovery by the party he accuses?

If my questions seem to make no sense, please forgive me. What is incomprehensible for me may be clear to experts, but those seem not to include the judge in this case. Befuddled as I am, I have no inclination to criticize the judge.

If the judge responded by dismissing the suit entirely, would that be an error?

[ReaderY]

It seems to me a discovery request for Congressional deliberations etc. is facially subject to the privelege regardless of who’s the plaintiff and who’s the defendant.

Imagine a case where the defendant makes a fishing-expedition discovery request regarding sensitive Congressional deliberations. If just filing a lawsuit by itself completely waives the privelege and creates a completely open door to peer into what’s going on inside Congress, then a member of Congress would never be able to file a lawsuit because of the graymail threat.

So I would think the privelege would remain in place in general, and would be waived only if and to the extent specific material is really necessary for the defense.

[Formerly Known as Stash]

If a Congressman sues for defamation saying "defendant lied about what I did/said in Congress" it seems to me that he waives the privilege regarding what he actually did/say in Congress, albeit only with regard to that particular act. I don't think it is only due process concerns, though waiver and due process are often congruent.

If one analogizes to the attorney-client privilege, the answer, I think, would be a "subject matter" waiver. That would clearly include the first category of objections to "questions on: (1) the receipt, handling, and transfer of the Derkach package..." Since Nunes claims (1) he did not accept the package; (2) the "package came to the House Intelligence Committee," and (3) that he "immediately" turned the package over to the FBI, he has placed that subject matter in issue and has therefore waived the privilege--at least on behalf of himself.

If he had claimed "The package didn't come to me, it was delivered to my lawyer, and then I immediately turned it over to the FBI" I think the attorney would be required to answer if and for how long it was stored, and, to the extent the attorney knew, when and how it was delivered to the FBI.

The witness here is Nunes' director of communications. So, one issue, as the Court says, is who owns the privilege?

It looks like Nunes wants his guy to say, yeah, (as he alleges) the office got it and turned it over to the FBI immediately, but the House Committee's counsel objects to him answering. So, it's a roadblock for both plaintiff and defense at this point. Nunes says he owns the privilege (for his aide) and can waive on the delivery issue, but assert it as to everything else. House Committee is saying they can assert it and it can't be waived over their objection.

Given that Nunes is trying to waive, on at least some issues, I think the law governing the scope of a waiver, rather than strict due process (though the two are intertwined) is probably the right answer. Generally, privileges may only be used "as a shield, not a sword." Selective waiver is not favored. The question is, I think, the breadth of the "subject matter" of the waiver. If it is "the Derkach package" then probably everything concerning it is waived, and matters regarding that subject matter should be discoverable.

It's true that this is a constitutional, not common law, privilege. But those can be waived, e.g. self-incrimination. There may be some separation of powers issues, but it is Nunes coming to the court, not the other way around. So, all-in-all, I think if Nunes waives, it is a subject-matter waiver, not a question-by-question determination of whether the answer is crucial to the defense.

There is no "fishing expedition" problem because the discovery is limited to one subject matter. (Maddow's report was ostensibly about the occurrences at the July 29, 2020 HPSCI business meeting--closed to the public--which had been leaked to the press.)

Apparently it was reported elsewhere (by someone not sued) that the file had not been turned over to the FBI. That might be enough to convince a jury that there was no actual malice, but to the extent it was a communication or statement from Nunes or his office that was the source of that story, it would tend to be dispositive for the defense.

[Brett Bellmore]

So, even assuming the privilege is absolute, could invoking it constitute a form of spoliation? Permitting averse inferences concerning the matter he invokes it about?

[Sam Bankman-Fried]

And what’s up with Nuny’s eyes?? Creepy.

[David Nieporent]

So, even assuming the privilege is absolute, could invoking it constitute a form of spoliation?

No.

[Rev. Arthur L. Kirkland]

There are a lot of things Devin Nunes doesn't want to talk about . . .

his family's record with respect to exploiting undocumented workers

whether he provided information from a Russian agent to a law enforcement agency

whether the claims in a defamation action he filed are true

his degree in cow-milking

the details of a conspiracy he alleged the FBI to have engaged in against Donald Trump

the details of the other conspiracy theories this hayseed has endorsed

his efforts to avoid examination of Russian political interference in the United States

global warming

his efforts to prevent revelation of foreign investments in American campaigns for elected office

his support of the Muslim ban

the details concerning his flailing Benghazi investigation

his virus-flouting stupidity during the pandemic

Michael Flynn's un-American conduct

why Lindsey Graham summarized Nunes' investigative efforts by calling him "Inspector Clouseau"

Ukraine

the information generated by his many trips abroad in search of information discrediting Joe Biden

how long his tongue has been affixed to Donald Trump's scrotum

his extended record of frivolous, flailing, failed litigation

Ukraine

Ukraine-Trump issues

Devin Nunes' cow

his degree in cow-milking (in case you thought that might have been a joke . . . well, it is a joke, but . . . )

why he lied about missing Congressional votes to attend a wingnut conference

his Trump Tower wiretapping bullshit

[F.D. Wolf]

The Speech and Debate Clause is drawn nearly verbatim from the English Bill of Rights 1689: “That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.” Britain has dealt with the interplay between parliamentary privilege and defamation.

Imagine, for example, that a publication alleges a Member of Parliament was drunk during a session or committee meeting. The MP sues the publication for defamation. How can he show he wasn’t drunk? Can he call other MPs or staffers who were there to testify he wasn’t drunk? No, he can’t, because that would involve questions about Parliamentary proceedings in a court or place outside Parliament. So, he’s rally just out of luck. Parliamentary privilege CANNOT be waived, voluntarily or otherwise. It is an individual privilege, but additionally, and more importantly, it is an institutional privilege. (To address this perceived “unfairness”, in 1996, Parliament passed the Defamation Act, section 13 of which allowed MPs to waive parliamentary privilege. Section 13 was always controversial and was repealed in 2015).

In sum, if American courts follow the British courts, Nunes may be out of luck.

[Voize]

Nearly verbatim but not quite.
On its face the US privilege protects the member of Congress from being questioned, while the UK version protects the speech or debate itself and not the participant.
That difference could support the congressional privilege being waivable by a member even if doing so exposes how the sausage is made, while the parliamentary privilege is not.

[SRG2]

"The Court grants the defense motion to dismiss on the grounds that the plaintiff has no reputation to speak of, and so cannot be defamed. It is not necessary, therefore, to resolve the question of privilege,"

[Rev. Arthur L. Kirkland]

I once prevailed in litigation on behalf of a broadcaster with that precise point. Everything about that case -- the facts, discovery, the judge's conduct, the defendant's conduct -- was remarkable. The decision -- a defamation-proof claimant -- was, too.

It wasn't a defamation case. It was a lack-of-defamation case.

[Rev. Arthur L. Kirkland]

This episode precipitates a tough call -- more inept litigant, Devin Nunes or Donald Trump?

If an appeals court does not rescue Trump soon, Monday might be a fascinating and highly enjoyable day. Would circumstances incline Trump to wreck his brand by filing a personal bankruptcy petition? Will a Saudi royal or Russian oligarch (perhaps Putin himself?) become Trump's sugar daddy. Will Trump call the prosecutor's bluff . . . and will she seize a property or two to demonstrate that she is not going to reward Trump's bad behavior? Which property? Trump Tower? Mar a Lago? One of the golf courses?

[windycityattorney]

Seven Springs and his stupid plane. I think I would take the plane first as it may be the easiest to auction. I have no idea which of his various properties are leveraged more/less. Knowing Trump, they are all leveraged to the hilt.

So maybe they start with the closest properties to NY state. Then work their way out.