Looks like the RNC may have some explaining to do after all — assuming the clock doesn’t run out first. Their attempt to quash subpoenas to produce internal communications related to the January 6 rally and riot came to an abrupt halt overnight. A federal judge appointed by Donald Trump threw out their lawsuit, although Judge Tim Kelly did issue a temporary injunction until Thursday to allow for an appeal:
A federal judge late Sunday resoundingly supported the Jan. 6 select committee’s effort to obtain internal Republican National Committee data about efforts to fundraise off claims that the 2020 election was stolen.
In a landmark ruling rejecting an RNC lawsuit, U.S. District Court Judge Tim Kelly said the select committee had demonstrated its need for the party’s data on its fundraising emails between Nov. 3, 2020, and Jan. 6, 2021 — when the RNC and Trump campaign sent supporters messages falsely suggesting the election was stolen. The committee contends those emails helped sow the seeds of the violence that erupted on Jan. 6.
“[T]he Select Committee seeks reasonably relevant information from a narrow window during which the RNC sent emails promoting claims that the presidential election was fraudulent or stolen,” Kelly, an appointee of former President Donald Trump, wrote in the 53-page ruling.
The House committee attempted to get the communications from a third-party vendor, Salesforce, which promoted the rally at the White House. The operating theory of the committee is that these records could show how the RNC may have been trying to incite unrest. Salesforce personnel apparently raised those concerns internally, which the committee discovered and issued the subpoena in February to pursue. The RNC argued in filing the lawsuit that such an intrusion into political operations represented a real threat to democracy by allowing hostile Congresses to pry strategic discussions from their opposition by using the subpoena power of the legislature as well as donor information.
Kelly noted that the subpoena itself at least attempted to put up a firewall against abuse:
In a March 21, 2022 letter memorializing these conversations, the Select Committee “stress[ed]” to Salesforce that these topics did not seek “any individual records or information on donors to the RNC or those whom the RNC solicited” or “any disaggregated information about donors to the RNC, disaggregated information about recipients of solicitations from the RNC, or email addresses acquired by the RNC through voter registration drives, GOTV efforts, or coalition signups.” Id. at 2–3. Further, in light of objections Salesforce had raised about the subpoena demanding content protected by the Stored Communications Act, 18 U.S.C. § 2701 et seq., the Select Committee told Salesforce that it was not “seeking communications content covered” by the Act and that it did not expect Salesforce to produce the portion of any responsive record revealing such content. …
In summary, none of the materials at issue contains personally identifiable information of RNC donors, volunteers, or email recipients. But the subpoena does seek some of the RNC’s confidential information about its email campaigns from November 3, 2020 to January 6, 2021.
That is a fairly narrow focus and time frame. Still, that does appear to be a particularly slippery slope, especially after the previous House tried mightily to exceed its authority in seizing Trump’s records in the previous session.
The RNC sued both the committee and Salesforce in an attempt to stop the subpoena. Kelly dismissed the lawsuit summarily against the committee, noting that the Constitution’s Speech and Debate Clause holds individual members immune, plus that the court is not the proper venue for a resolution of a political question. Kelly ruled that the RNC does have standing to sue Saleforce, but that their complaints are largely without merit after the committee narrowed their language in the records they seek.
The RNC asserted six claims against the subpoena:
With these principles in mind, the Court considers the RNC’s challenges to the subpoena. The RNC asserts six claims: (1) the Select Committee lacks necessary congressional authorization to issue the subpoena; (2) the subpoena does not advance a valid legislative purpose; (3) the subpoena violates the First Amendment; (4) the subpoena violates the Fourth Amendment; (5) the subpoena is overbroad and unduly burdensome; and (6) the subpoena violates the Stored Communications Act.
Most of these are also rehashes of political disputes, in large part relying on the fight over appointing members to the committee. Kelly dispenses with these in rather mundane fashion. The real meat of the dismissal comes in points 4 and 5, which Kelly firmly rejects:
First, the Select Committee has a strong—that is, a “sufficiently important”—interest in the records demanded. See Bonta, 141 S. Ct. at 2383. The D.C. Circuit has already recognized Congress’s “uniquely weighty” and “vital interest in studying the January 6th attack,” which is being undertaken by the Select Committee to help propose “remedial legislation” that will safeguard Congress’s “constitutional and legislative operations.” See Trump, 20 F.4th at 17, 19, 35. Indeed, it is hard to imagine a more important interest for Congress than to preserve its own ability to carry out specific duties assigned to it under the Constitution. See id. at 35; Barsky, 167 F.2d at 246. Part of the study the Select Committee is tasked with doing includes investigating the “causes” and “influencing factors” of the attack. H.R. Res. 503, § 4(a)(1).
The subpoena is part of this “uniquely weighty” and “vital” study. To repeat: according to the Select Committee, its investigation and public reporting suggest that claims that the 2020 presidential election was fraudulent or stolen motivated some who participated in the attack, and emails sent by the RNC and the Trump campaign using Salesforce’s platform spread those claims. See ECF No. 8-3 at 4–5. Through the subpoena, the Select Committee seeks information that will help it understand whether and how much those email campaigns attracted attention and thus were a factor in the January 6 attack. See, e.g., ECF No. 24 at 75. And the Select Committee’s knowledge of the causes of the attack will make it “better able to fulfill its responsibility” of providing wellinformed recommendations to the House for remedial measures to avert a future attack. See Sanders, 463 F.2d at 900. In sum, the materials demanded have particular “value” to the Select Committee “in the exercise of legislative duty,” and its interest in this information is strong.
The RNC raises some reasonable questions about privacy, but that horse has already bolted the barn in this case:
But upon closer inspection, less is at stake than the RNC represents. For example, at least some of the email “cadence” information is already publicly available or readily deducible from publicly available sources. As House Defendants point out, several online databases have collected the emails sent by the RNC during the relevant time, and these databases include the date and time the emails were sent. See ECF No. 17 at 17 n.12. So the subpoena’s demand for this information does not seek the disclosure of “confidential” internal materials and does not add to the RNC’s burden.13 See AFL-CIO, 333 F.3d at 177. And while the RNC raises the specter that its employees’ communications with Salesforce could, in theory, include discussions about data related to the performance of its email campaigns, see ECF No. 8-1 at 22, the RNC has provided no basis for the Court to find that such communications exist despite presumably having its own copies of them from @gop.com email addresses. See generally ECF No. 8-2; ECF No. 21-1.
For the information the parties acknowledge exists but is currently confidential—such as the performance data of the RNC’s email campaigns during this period—the strength of the Select Committee’s interest in this information outweighs any actual burdens imposed by its disclosure to the Select Committee.
All of this dispenses with the RNC’s Fourth Amendment challenge as well:
The leading Supreme Court case on Fourth Amendment challenges to legislative subpoenas (and one of the “few federal cases” on point) is McPhaul, 364 U.S. 372. See 1 Bus. & Com. Litig. in Fed. Cts. § 6:15 (Robert L. Haig, Ed., 5th ed. 2021 update). In McPhaul, a House committee issued to the executive secretary of the Civil Rights Congress a subpoena that demanded production of “all records, correspondence[,] and memoranda pertaining to the organization of, the affiliation with other organizations[,] and all monies received or expended by the Civil Rights Congress.” See 364 U.S. at 374. The subpoena’s recipient argued that it was “so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment.” Id. at 382. The Supreme Court recognized that the subpoena was “broad,” but it reasoned that the committee’s inquiry was a “relatively broad one” and thus the “permissible scope of materials that could reasonably be sought was necessarily equally broad.” See id. And it ultimately held that the subpoena was not so broad “such as to violate the Fourth Amendment.” Id. at 383.
So too here. As discussed above, the subpoena demands documents within the permissible scope of materials that the Select Committee may seek in its investigation. Also as discussed above, the information at issue that could shed some light on the RNC’s political strategy is no more sensitive than the McPhaul subpoena’s demands for information about the Civil Rights Congress’s “organization” and affiliates. Moreover, in this case, unlike in McPhaul, the subpoena is time-limited to a few months of records. Thus, because the subpoena is “not more sweeping” than the one “sustained against challenge” in McPhaul, the Court “cannot say that the breadth of the subpoena [is] such as to violate the Fourth Amendment.”15 See McPhaul, 364 U.S. at 383.
Kelley’s reasoning appears fairly solid in principle, but still arguable in scope. Allowing this much access to political parties’ strategic discussions through a third-party vendor’s standing is a precedent that will beg for mischief down the road. Kelly may be correct in his tacit finding that this is a political rather than legal question, one which should inform the formation of such investigative efforts in the House and Senate. True enough, but Kelly’s decision could force courts in the future to settle those political questions as matters of taste rather than law.
Undoubtedly, the RNC will appeal this decision, and it’s almost certain to end up before the Supreme Court one way or another. At this stage, it likely wouldn’t even get oral arguments until after the midterms. If so, a Republican wave election could end up mooting the lawsuit as well as the subpoenas. Let’s hope that the appellate process operates deliberately and cautiously.