Sunshine Week: Lawsuit could upend Congress’s self-exemption from open records laws
Does the public have a common law right of access to congressional records?
Yesterday, I unloaded all the bad news about “Sunshine Week,” that ostensible celebration of open government by “journalists” so dedicated to pursuing the truth that they even support the censorship of work they view as distorting that “truth.”
Today a little better news. The establishment runs Sunshine Week, of course, but, that bullshit aside, there are actually lots of journalists out there reporting what they find and really trying to expose the secrets of government as best they can in this censorious atmosphere. Today, I’m going to explore what one such journalist is doing by filing a lawsuit against the Capitol police and Congress in the wake of the January 6 riot.
In the lawsuit, journalist Shawn Musgrave, a First Amendment Fellow at the Center for Investigative Reporting, is seeking access to video surveillance tapes taken during the riot, as well as congressional security manuals and reports. The defendants are the Capitol police (USCP) and Congress itself.
If successful, the lawsuit stemming from the January 6 Capitol riots could thwart Congress’s exemption of itself from the federal Freedom of Information Act (FOIA). Many experts believe the lawsuit is a long-shot, and I believe the shot is even longer than long. Nonetheless, his lawsuit is shining a needed light on the lack of transparency in Congress and of the need to do something about it, and it could lead to reforms that increase access to congressional records. Many believe the FOIA should be extended to Congress, but that by itself won’t work because of judicial interpretations of the speech and debate clause of the constitution—more about that in a second—but that’s where Musgrave’s lawsuit enters the picture.
(FYI: The conservative group Judicial Watch also has a lawsuit going to obtain the footage and emails from that day, and it’s analogous to this one, but Musgrave’s complaint better argues the common law right of public access and the speech and debate clause, so I’ll foucs on it as the most relevant case.)
It’s fitting to observe that by exempting itself from the FOIA, Congress joins just five states, including Wisconsin, that have similar exemptions; 45 states put their legislatures under their open government laws. That legislative records need to be public is absolutely vital to see who lawmakers are talking with as they make law, and, indeed, to grasp where those laws come from in the first place. One of the great perversions of our system is that special interests who donate heavily to special-interest lawmakers turn around and conspire with them to write special interest legislation, all under the shield of secrecy.
Now a caveat here. Musgrave’s lawsuit comes at this from the definitive political perspective of the left. His starting assumption is that there was indeed an insurrection—his complaint is peppered with the term—and he wants to know why the Capitol police were so unprepared and to sort out conflicting testimony about what those high up in the department knew or didn’t know. The whole thing sounds like he believes there were some on the inside who were conspiring with the “insurrectionists.”
I’ll admit that’s my speculative take on his motivation but it’s ultimately irrelevant. As trials proceed related to the events of January 6, the government has controlled what surveillance video it releases—just a fraction of the more than 14,000 hours of video that exists. This poses great peril to those seeking a fair trial. More than that, it is vital to know just what the Capitol police knew and what it didn’t, as Musgrave argues. It could be just the opposite of conspiring with the rioters; or it could be benign. One way to tamp down the speculation and inform the public about the true nature of that’s day’s events is to release all the footage, not merely to prove any political point but for the sake of transparency and an accurate historical record.
Normally, because of the FOIA exemption, any such a request for records would be a nonstarter. The Capitol police department is an agency of Congress, and all agencies of Congress are likewise exempt. But an opinion this past June by a federal circuit court opened the door at least a little, and, if the lawsuit is successful, it could open many if not most congressional records to the public, ending the impenetrable shield Congress has erected for itself over many decades.
In that June opinion, judge Karen LeCraft Henderson resurrected the ancient doctrine of the common law right of public access. In that lawsuit, the group Judicial Watch sought copies of subpoenas issued by the House during the first impeachment of former President Donald Trump.
Judicial Watch lost the case. The majority said the constitution’s “speech or debate” clause protecting congressional privilege prevailed. That clause gives lawmakers general criminal and civil immunity for all “legislative acts” taken in the course of their official responsibilities and provides complementary evidentiary and testimonial privileges. To wit, it has been used to shield records from public view.
But in a concurring opinion, Henderson said that, while she agreed with the majority, in the “right case” the doctrine of the common law right of public access could force Congress to disclose records:
Simply put, the Speech or Debate Clause should not bar disclosure of public records subject to the common law right of access in all circumstances. Instead, the Clause should be considered in weighing the interests for and against disclosure as part of the second-step balancing test.
Musgrave believes his is the right case to do just that. Let’s take a look.
The argument …