DC Circuit Hears Argument re: Transparency When Congress Transgresses - Climate Litigation Watch

DC Circuit Hears Argument re: Transparency When Congress Transgresses

Argument before federal appeals court panel examines whether public can see correspondence pertaining to donor-provided ‘staff’ to drive investigation of political opponents in aid of outside interests

CLW readers are familiar with Schilling v. Speaker, the common law right of access lawsuit seeking records about the sordid affair of House Oversight Committee Chair Maloney and Subcommittee Chair Ro Khanna bringing in donor-provided ‘staff’ — clearly a violation of House ethics rules — to advise its investigation of energy companies to gain records which the Committee then turned over to the “climate” plaintiff’s bar — so, not just unethical but lacking the required “legislative purpose”.

Journalist Rob Schilling’s complaint tells the tale of the documents and other matters which *are* public.

The DC Circuit Court of Appeals is hearing argument on the case this morning.

To recap:

  • an email from one of the Committee’s Soros/Omidyar-financed ‘staff’ just before the 2020 elections, to now-Biden ‘climate’ official Ann Carlson, suggested that if Tuesday turned out as they hoped, he would let her in on an important development. As schilling lays out, that appears to have been that the Committee was going to bring “The Phils” in to help manage the Oversight ‘investigation’ into the targets of Carlson’s climate litigation campaign.
  • This is a team that boasted in an incredibly incurious NYT puff-piece, complete with team photo in front of the Capitol, that they are there to beef up investigations because Republicans are mean and don’t fund enough staff.
  • House ethics rules say nothing of course about whether outside lobbyists/activists/donors can offer that. But they are clear that no, no one can accept that.
  • Which made it so odd that Khanna boasted that he brought in ‘a lot’ of people who helped run Waxman’s tobacco investigation (describing The Phils).
  • Omidyar, Soros foundations also boasted they fund Co-Equal to enhance congressional oversight.
    Again, a no-no if anyone accepts that.
  • Khanna gets called on it. Schilling sends requests for records. Sues when denied.
  • Khanna goes on a climatista podcast called Drilled podcast to say oh gee no I didn’t what a conspiracy theory.

Lawyers for the Speaker are expected to continue arguing that the public should not see such records, which was Speaker Pelosi’s position and one with which the activist Left wholeheartedly agree. This while MSNBC is excerised over the Speaker redacting January 6 tapes. What are you hiding. These records all need to be public! The first Capitol Hill Police tapes were released to Buzzfeed under this same claim (the common law right of access).

As such, it seems that one side thinks public records in congressional clutches should all come out…unless it airs their dirty laundry?

A recent DC Circuit opinion suggests otherwise, at least regarding a Republican Congressman’s correspondence. Per In re Sealed Case, the Court wrote:

Representative Perry argued the Clause bars the government from reviewing many of the messages stored on the phone.

As to communications with Executive Branch officials and parties outside of Congress, Representative Perry argues that his messages are necessarily privileged because they constitute “informal factfinding”—a
capacious category he asserts is always privileged and includes a Member’s attempts to obtain information related to topics of upcoming votes without express House authorization.

We disagree.

DC Circuit, In re Sealed Case, September 13, 2023

So just under two months ago the DC Circuit held that two privileges apply to a congressman’s correspondence (Scott Perry’s) (congressional phone). And ‘informal fact finding’ — one of the rhetorical excuses for bringing in outsiders to advise an investigation of opponents and litigation targets — doesn’t fall within those privileges. Which is Schilling’s argument countering the ‘oh hey this was just receiving expert insights and you don’t want to force the release of that’.

Maybe…but, as precedent indicates, only if it’s properly in the legislative sphere, which Schilling argues does not encompass putting a Committee to work for outside allies to go after their (and the administration’s promised) targets/opponents, which purpose was affirmed by the Committee’s subsequent behavior.

We will see how consistently this binding precedent is applied.