Wednesday, May 17, 2017
The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.
The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.
In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."
The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."
The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.
The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.
In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.
The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.
The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.