Bean LLC v. John Doe Bank ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEAN LLC d/b/a FUSION GPS, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-2187 (RJL)
)
JOHN DOE BANK, )
)
Defendant, ) F I L E D
) - h
and ) JAN 2018
) C|erk, U.S. District & Bankruptcy
PERMANENT SELECT COMMITTEE ) Courts for the District of Columbla
ON INTELLIGENCE OF THE )
UNITED STATES HOUSE OF )
REPRESENTATIVES, )
)
Intervenor. )
MEMOR DUM ()PINION
January , 2018 [Dkt. #23]
Bean LLC, doing business as Fusion GPS (“Fusion” or “plaintiff”), applies to this
Court for an order enjoining the enforcement of a Congressional subpoena (“the
Subpoena”) that requires the production of certain financial records from Fusion’s bank,
Defendant Bank (“th.e Bank”).l The Subpoena, issued by the Permanent Select
Committee on Intelligence of the U.S. House of Representatives (“the Committee”),
' On the same day that it filed its Complaint, Fusion moved for Def`endant Bank to proceed under a
pseudonym, arguing that, “if` the name of its bank Was[sic] made public, hackers interested in Plaintiff`s’
confidential information would go after the Defendant Bank’s records.” Mot. for Def`. to Proceed Under a
Pseudonym [Dkt. #3] 3. The Court granted the motion. See 10/20/17 Minute Order.
l
seeks records ol"Fusion’s financial transactions with certain clients and contractors The
Committee issued the Subpoena in conjunction with its investigation into Russian active
measurcs”i.e., Russian conduct, direct and indirect in nature, calculated to advance
Russia’s political agenda»directed at the 2016 U.S. presidential election (“the 2016
Presidential election”). The Subpoena followed revelations in the press that Fusion had a
role in compiling a series ofmemos#together commonly known as “the Trump Dossier”
(also referred to herein as “the Dossier”)#that alleges ties between President Donald
Trump and the Kremlin.
Although the Subpoena was issued to Defendant Bank»not to Fusion_Fusion
liled a motion for a temporary restraining order and preliminary injunction, seeking to
enjoin the Bank from complying with the Subpoena on the ground that it is overly broad,
unauthorized and requests records ol"Fusion’s business transactions that are irrelevant to
the Coininittce’s investigative inquiry. While the Committee and Fusion were able to
negotiate a narrowing of the thousands of records responsive to the Subpoena, they
unfortunately could not agree as to seventy of those records. As to th`ese, Fusion asserts
that the Subpoena violates its First Amendment rights to speech and association, as well
as its rights under certain financial privacy laws. This matter is now fully briefed and
ripe l"or resolution. Upon consideration of the pleadings, oral argument, and the entire
record herein, Fusion’s Renewed Motion for a Temporary Restraining Order and
Preliminary lnjunction is DENIED.
BACKGROUND
The House Permanent Select Committee on lntelligence is a standing committee
of the United States House of Representatives, charged with oversight of the intelligence
community and intelligence-related activities and programs of the United States
Government. See H.R. Res. 658, 951h Cong. (1977). Pursuant to those oversight
responsibilities1 the Committee is currently conducting an investigation into Russian
interference with the 2016 Presidential election. See Press Release, U.S. House of
chresentatives Permanent Select Comm. on lntelligence, lntelligence Committee
Chairman, Ranking l\/lember Establish Parameters for Russia lnvestigation (l\/lar. l, 2017)
(“l\/larch l, 2017 Press Release”).2 Among other things, the Committee’s investigation is
seeking answers to the following questions: (l) “What Russian cyber activity and other
active measures were directed against the United States and its allies?” and (2) “Did the
Russian active measures include links between Russia and individuals associated with
political campaigns or any other U.S. Persons?” ld.
l"`usion is a research firm that provides strategic intelligence, opposition research_
including research on political candidates_and due diligence services to corporations,
law 1'ir1ns, and investorsl Decl. ofPeter Fritsch (“Fritsch Decl.”) [Dkt. #2-2] ij 6. During
the 2016 Presidential election campaign, an unknown third party engaged Fusion’s
services to conduct political opposition research on then-candidate Donald J. Trump
(“l\/[r. Trump”). [d. at il 9; Decl. of l\/lark R. Stewart (“Stewart Decl.”) [Dkt. #12-1] 11 5.
2 Tliis press release is available on the Committee’s website at littps://intclligenee.house.gov/
news/docuinentsingle.aspx?DocumentlD:767.
ln early 2016, that unknown client terminated its contract with l<`usion, but another client
took over the contract, seeking the same opposition research. Stewart Decl. il 5. As part
ol` this research, Fusion hired a former British intelligence ofliccr, Christopher Steele
("Stecle"), to research l\/lr. Trump’s ties to Russia. Id. at 1111 4, 6; Fritsch Decl. 11 9.
Steele’s research led to a series of memos that has become known in the press as the
“Trump Dossier.” Stewart Decl. 1111 4, 6; Fritsch Decl. 11 9. The Dossier made unverified
allegations of misconduct regarding l\/lr. Trump’s relationship with Russian individuals,
as well as allegations of collusion between the Trump campaign and representatives of
the Russian government during the 2016 Presidential election. Stewart Decl. il 6.
lt was later revealed that Steele was paid an undisclosed sum of money for work
he performed on behalf of the FBI, and that the 'l`rump Dossier was provided to the FBI
in 2016. /c/. at 1[11 4¢7, 9. lt also came to light that other individuals in the lntelligence
Community were aware ol" the 'l`rump Dossier and its contents, and that they provided
briefings about the Dossier to both President Obama and President-elect Trump in
January 2017. Ia’. at il 9. As a result, the Committee is seeking to discover, inter alia,
who paid Fusion for the Trump Dossier, who received it, whether steps were taken to
verify its accuracy, and whether the FBI relied on the Dossier as grounds for its
counterintelligence investigation into potential coordination between the Trump
campaign and the Russian government to influence the 2()16 Presidential election.3 Ia’. at
int 9~-10.
3 ()n I\/larch 2(), 2017, during the Colnmittee’s lirst public hearing on its Russia investigation, then-I~`Bl
director, .lames B. Comcy (“C<)iiiey”), revealed that, as part ofthe FBl’s counterintelligence effort, it
4
Af`ter unsuccessful attempts to obtain relevant documents and testimony from
Fusion itself, see, e.g., Stewart Decl. 1111 12-13, Committee Chairman Devin Nunes
(“Chairman Nunes”) issued subpoenas for testimony and documents to each of Fusion’s
principals [a’. at 11 14. Fusion’s principals objected to these subpoenas, but on October
18, 2017, two of them appeared for compelled testimony, during which they invoked
constitutional privileges not to testify pursuant to the First and Fifth Amendments. Ia’. at
111 16»17.
()n ()ctober 5, 2017, the Committee served the Subpoena at issue in this dispute on
l,)el`cndant Bank, seeking “all documents sufficient to identify Fusion GPS’s banking
transaction history, among other items, from August 1, 2015 to October 4, 2017.” Ia’. at
11 14; Decl. of Joshua A. Levy (“Levy Decl.”) Ex. A [Dkt. #2-31. The Bank initially
raised a number of objections to the Subpoena, but after the Committee rejected all of
those objections, the Bank, on October 19, 2017, agreed to comply and produce all
responsive documents by 9 A.l\/l. on October 23, 2017. Stewart Decl. 11 18.
ln response, l*`usion immediately filed the instant action on October 20, 2017,
seeking to enjoin the Bank from turning over records of Fusion’s financial transactions to
the Committee See Compl. 11 3. Curiously, Fusion did not name the Committee as a
began investigating Russian interference in the 2016 Presidential election in July 2016. According to
Comcy, that investigation included inquiry into “possible links between the Trump campaign and the
Russian government_and whether there was any coordination.” l\/latthew Rosenberg, Emlnarie
Huetteman, & l\/liehael S. Schmidt, Comey Confirms F.B./'. lnqul'ry on RL/.s'sia,' See.s' N() Evicience of
W/'/”e/clppi)ig, N.Y. 'l`|l\/II'ZS, l\/lar. 20, 2()17, https://www.nytimes.eom/20l7/03/20/us/politics/intelligence-
committee-russia-donald-trump.litinl (noting that Comey “publicly confirmed an investigation into
Russian interference in the presidential election and whether associates of 1President Trump] were in
contact with l\/loscow”).
defendant, but instead listed only Defendant Bank. See id. at 11 9. This case was initially
assigned to my colleague, .ludge Tanya Chutkan, and she held a telephonic hearing with
all interested parties---including the Committee-mat 5 P.l\/l. on the day the suit was 'filed.
See l()/20/l7 l\/linute Entry; 'l`elephone Conference Tr., Oct. 20, 2017 [Dkt. #181. The
Committee formally intervened in this case the following day. See l\/lot. to lntervene
1Dkt. #71; 10/21/17 l\/linute Order (granting the Committee’s Motion to lntervene).
After reviewing the pleadings, the Court again held a telephonic hearing with the
parties on October 24, 2017. See 10/24/17 Minutc Entry. Noting her “reluctan[ce] to
wade into this dispute because it presents issues on which there is very little authority,
and because it involves a congressional investigation in which 1the Court does] not wish
to intrude,” the Court stated that “both sides have an interest in resolving this dispute
short ofjudicial involveinent.” 'l`elephone Conference 'l`r. 4:16~18, 5;22~25, Oct. 24,
2017 [Dkt. #171. 'l`he Court accordingly “strongly encourage|:ed] the parties to try and
arrive at an agreement,” and gave them until 6 P.l\/l. on October 26, 2017 to do so. [a’. at
5:24~25; 10/24/17 l\/linute l§intry.
Spurred by the Court’s directive, the parties were able to find common ground,
and they entered into a Confidential Agreement that provided a mutually agreeable
process by which the Committee could review the requested documents. The Court
entered a Stipulation and Order binding the parties to the terms ofthe Confidential
/\greement, and it also entered a Sealed Protective Order to preserve the confidentiality
of the records sought by the Subpoena. See Stipulation & Order [Dkt. #191 l. Two days
later, the Court dismissed the case, but it retained jurisdiction, should any disputes arise.
Icz’. at 2; Order ofDismissal [Dkt. #211.
While these events were unf`olding, however, the Committee learned from a
Washmgl'orz Post report that the Clinton campaign and the Democratic National
Committee (“DNC”) had provided funding to Fus'ion for the research that resulted in the
fl`rump Dossier. Decl. ol`Seott l,/. Glabe (_“Glabe Decl.”) [Dkt. #37-21 1 ll. Speciiically,
the Wash/,'nglon Pr)Sl' reported that l\/lark E Elias, an attorney with the law firm Perkins
Coic-~who represented both the Clinton Campaign and the DNC_was the individual
who retained 1j usion for the purposes of gathering opposition research on l\/lr. Trump. Ia’.
'l`he Committee also learned from public reporting that Fusion was accused of acting as
an unregistered agent of the Russian government, in violation of the Forcign Agent
Registration /\ct, based on work it performed for Prevezon Holdings (“Prevezon”), a
Russian state-owned company. [a’. at 11 6. 'l`his same report revealed that Prevezon
organized its lobbying efforts through the law firm Baker Hostetler, which was also
providing litigation services for Prevezon on a criminal asset forfeiture case being
brought by the U.S. Justice Department in the Southern District of`New York. Id. at 1111 6,
21 . 'l`ogether, these reports confirmed that various law firms and businesses had retained
'l"usion on behalf of their clients to perform Russia-related work, thus triggering the
Committee’s investigative interest in identifying other businesses that sought Fusion’s
services during the same relevant time period. Id. at 1111 20-22.
On October 27, 2017, pursuant to the terms of the parties’ Confidential
Agreement, the Bank produced certain responsive records, and the Committee reviewed
7
them. [d. at 1111 12~15. 'l`he Committee’s review was informed, in part, by classified
information in the Committee’s possession Id. at 11 19. On November l, 2017, the
Committee identified eighty-two transactions necessary for its investigation that had not
been previously produced by the Bank. Id. at 11 18. The Committee also sought re-
production of thirty transactions already produced in the initial production Id. ln total,
the Committee requested that Fusion instruct the Bank to produce, or re-produce, records
of one hundred and twelve transactions [d. To support its requests, the Committee also
submitted ajusti'fication for each payor or payee, explaining the nexus between the
records sought and the Committee’s investigation [a’.
'1`hat same day, Fusion objected to the Committee’s requests, arguing that the
requested records»which contained financial transactions between Fusion and certain
law firms, media companies, journalists, and contractorsiwere irrelevant to the Russia
investigation See Reply in Supp. of Pl.’s Renewed Appl. for a TRO & Mot. for Prelim.
lnj. (“Pl.’s Renewed Reply”) Ex. C 1Dkt#35-31. On November 3, 2017, the Bank
produced twelve of the requested transactions, leaving seventy previously unproduced
transactionsiand thirty rc-productions#outstanding. Glabe Decl. 11 33. The parties
were ultimately unable to come to an agreement on these seventy remaining transactions,
so plaintiff moved to reopen this case and filed its renewed motion for a temporary
restraining order and preliminary injunction on Novembcr 3, 2017. See Mot. to Reopen
Case [Dkt. #221; Pl.’s Renewed Appl. for TRO & Mot. for Prelim. lnj. (“Pl.’s Renewed
1\/lot.”) 1:Dkt. #231. Shortly thereaf`ter, Judge Chutkan recused herself, and this case was
randomly reassigned to me on November 9, 2017. See Reassignment of Civil Case [Dkt.
#291.
On November 15, 2017, l held the first hearing since plaintiff filed its renewed
motion See l l/l5/l7 l\/linute Entry. During this initial hearing, l consolidated plaintiff”s
motion for a temporary restraining order and motion for a preliminary injunction
l\/lotions flr’g Tr. 6:16~24, 7:2»6, Novcmber l5, 2017 [Dkt. #411. l also expressed
concern that all of the pleadings had been filed under seal. Noting that “having public,
open hearings on a matter is in the best interest of all concerned,” l ordered that the
pleadings “be reconstituted and refiled not under seal.” [a’. at 7110~11, 7:16~17.
Although l permitted the parties to file certain documents under seal, the bulk of the
pleadings were refiled in a redacted, public format. After reviewing the filings, l held
oral argument on November 30, 2017, bifurcating the hearing into a public session for
legal arguments, and a sealed session to discuss any confidential issues that might need to
be addressed by the parties See l 1/30/17 l\/linute Entry. Plaintiff"s motion is now ripe
for my review.
LEGAL STANDARD
Plaintif`f is seeking a preliminary injunction, which requires compliance with the
same standard as a temporary restraining order. Hal/ v. Jolmson, 599 F. Supp. 2d l, 3 n2
(l).l).C. 2009). “/-\ plaintiff seeking a preliminary injunction must establish 111 that he is
likely to succeed on the merits,4 121 that he is likely to suffer irreparable harm in the
4 'fliere is tension in the case law regarding whether a plaintiff seeking a preliminary injunction must
show a c‘likelihood of success on the merits” or a “substantial likelihood ofsuccess on the merits.”
(,`<)/'71/%/1”€ Wiwler v. Ncif. Res. Dq/.` C()wici/, lnc., 555 U.S. 7, 20 (2008) (requiring the plaintiff to show
9
absence ofpreliminary relief, 131 that the balance of equities tips in his favor, and 141 that
an injunction is in the public interest.” Aamer v. Obama, 7421".3d 1023, 1038 (D.C. Cir.
2014) (internal quotation marks omitted). Beeause the reliefFusion seeks is “an
extraordinary remedy,” a preliminary injunction “should be granted only when the party
seeking the relief", by a clear showing, carries the burden of persuasion” Chaplaz`ncy of
Fu// Gospel Churches v. Eng[cmd, 454 F.3d 290, 297 (D.C. Cir. 2006).
ANALYSIS
Fusion opposes the Subpoena on four independent grounds: (1) it lacks a valid
legislative purpose; (2) it is overbroad and seeks information that is not relevant to the
Committee’s investigation; (3) it violates l"usion’s First Amendment rights; and (4) it
violates the Right to Financial Privacy Act (“Rl"l)A”), 12 U.S.C. § 3401 et Sec]., and the
Gramm-l,ieach-Blilcy /\ct (“GLBA”), 15 U.S.C. § 1601 el'seq. For the foregoing
rcasons, this Court finds Fusion’s objections to the Subpoena to be unavailing and will
DliNY its motion l address each argument in turn
A. Fusion’s Claim that the Subpoena Lacks a Valid Legislative Purpose
Plaintiff first contends that the Subpoena is invalid because it was issued without
authority. Speci'fically, plaintiff avers that, in issuing the Subpoena, “1\/lr. Nunes has
acted alone, pursuant to no resolution” Pl.’s Appl. for a TRO & l\/lot. for Prelim. lnj.
"likely" success on the merits), w/'lh S()llel‘¢l, [m'. v. FD/f, 627 F.3d 891, 893 (D.C. Cir. 2010)(1'equiring
the plaintiff to show a “substantial likelihood” of success on the merits). Unfortunately, our Circuit has
avoided clarifying the standard See, e.g., Pursuiwg/fme/'ica ’s Greclmess v. Fec/. E/ec. C()mm., 831 1".3d
500, 505 n.l (D.C. Cir. 2016) (“We need not resolve here any tension in the case law regarding the
showing required on the merits for a preliminary injunction . . . 1because plaintiff1 meets either
stairirlzti'tl.”). But even if l"usion need only show a likelihood ofsuccess on the merits_-the less
demanding standard-iit has failed to do so. l therefore need not resolve the ambiguity our Circuit has left
in play on this issue.
10
("l)l.’s l\/lot.") 11)kt. #2-1 1 7. /-\ccording to plaintiff, the Committee was required to have
a “f"ormal public ‘unambiguous resolution’ 1to1 authoriz1e1 this investigation,” and
because no such resolution exists, “the subpoena is not part ofa legitimate legislative
activity.” [a’. l disagree
'l`o begin with, it is clear that Congress has delegated to the Committee its
investigatory power over intelligence-related activities The Constitution provides that
"'|:e1ach l*louse 1of"Congress1 may determine the Rules ofits Proceedings,” U.S. Const.
art. l, § 5, cl. 2., and the l~louse ofRepresentatives has delegated this authority to its
committees See Rules ofthe l~louse of Representatives (“House Rules”), Rule Xl.l(b)(l)
(“l'iach committee may conduct at any time such investigations and studies as it considers
necessary or appropriate in the exercise of its responsibilities.”).5 Here, the Committee’s
responsibilities include oversight of“the activities of the intelligence coinmunity.”
lelouse Rule X.3(m); see also House Rule X.l l(b)(l). And to exercise this oversight role,
the Committee is authorized to issue subpoenas for, among other things, “1t1he
production of memoranda, documents records, or any other tangible item.” Rules ofthe
Permanent Select Comm. on lntelligence (“Comm. Rules”), Rule 10(b)(2)6; see also
l~louse Rule Xl.2(m)(l)(13) (“For the purpose of carrying out any ofits functions and
duties . . . a committee or subcommittee is authorized . . . to require, by subpoena or
otherwise, the attendance and testimony of such witnesses and the production of such
5 'l`he l*louse Rules are available at littp://clerk.house.gov/legislative/house-rules.pdf.
f fl`he Committee Rules are available on the Committee’s website at https://intelligence.house.
gov/uploadedliles/lipsciirulesgof_procedure#-_l l5th_congress.pdf.
ll
books records correspondence, memoranda, papers and documents as it considers
necessary.”).
Plaintiff argues that, even if the Committee is authorized to conduct investigations
into intelligence-related issues Chairman Nunes acted ultra vires in unilaterally issuing
thc Subpoena, and thus the Subpoena is not legitimate legislative activity. Pl.’s l\/lot. 5.
Accordiiig to plaintiff, Chairman Nunes recused himself from the Committee’s Russia
investigation, and “he himself remains under investigation by the l*louse Ethics
Committee for his alleged misconduct related to 1that1 investigation” Id. Therefore,
under plaintist theory, Chairman Nunes acted outside the scope of his authority in
unilaterally issuing the Subpoena. Unfortunately for plaintiff, the record contradicts its
claims
The press release that plaintif`fcites for the proposition that Chairman Nunes
recused himself indicates that Chairman Nunes would “have Representative l\/like
Conaway . . . temporarily take charge ofthe Committee’s Russia investigation while the
l'lousc l"`ithics Committee looks into the matter,” but that he would “continue to fulfill all
1his1 other responsibilities as Committee Chairman.” Press Release, U.S. House of
Representatives Permanent Select Comm. on lntelligence, Nunes Statcment on Russia
lnvestigation (April 6, 2017).7 Nowhere in this press release did Chairman Nunes
“recuse” himselffrom the Russia investigation instead, he simply designated another
Committee member to take charge of the investigation as permitted by the Committee
7 'l`his press release is available on the Committee’s website at littps://intelligence.house.gov/news/
documeritsinglc.aspx?l)ocumentll):775.
17
¢_.
Rulcs See Comm. Rule 9(b) (“An authorized investigation may be conducted by
members of the Committee or Committee Staff designated by the Chair.”). And despite
Chairman Nunes’s decision to allow other Committee members to take charge of the
Russia investigation pending the resolution of his ethics investigation, he retained the
power to issue the Subpoena at issue in this case. Pursuant to Committee Rule 10, “1a1ll
subpoenas shall be authorized by the Chair ofthe full Coinmittee” and arc to “be signed
by the Chair.” Comm. Rule 10(a), (c). lndeed, the Subpoena would be invalid without
Chairman Nunes’s signature unless the full Committee authorized another member to
sign it, which it did not. See Comm. Rule 10(c). Plaintiff`s claim that Chairman Nunes’s
decision to allow chresentative Conaway to take charge of the investigation somehow
stripped him of his powers as Chairman is therefore unfounded
Plaintiff counters that the Subpoena is still invalid because the Russia
investigation was not authorized by a “formal public” resolution Pl.’s Mot. 7. Fusion’s
theory appears to be that every Congressional investigation must be authorized by a
separate formal resolution in order to qualify as legitimate legislative activity. To say the
least, that is wishf`ul thinking l ln considering the scope of the Congressional
investigative power, the Supreme Court has required only a grant of authority “sufficient
to show that the investigation upon which the 1Committee1 had embarked concerned a
subject on which ‘lcgislation could be had.”’ Easllono’ v. U.S. Servz'cemen ’s Funo’, 421
U.S. 491, 506 (l975) (quoting McGrair/z v. Dougherty, 273 U.S. 135, l77 (1927)). Here,
the l'louse Rules authorize the Committee to “review and study on a continuing basis
laws programs and activities ofthe intelligence coinlnunity.” l*louse Rule X.3(m). And
13
the Committee Rules empower the Committee to “conduct investigations only if
approved by the Chair, in consultation with the Ranking Minority l\/lember.” Comm.
Rule 9(a). The record makes clear that the Committee’s Russia investigation, which
implicates the intelligence community’s response to Russian active measures directed
against the United States has been so authorized by both the Chairman and the Ranking
l\/lember. See l\/larch l, 2017 Press Release (“Ranking 11\/1inority1 l\/lember Schiff stated,
"fhe llouse lntelligence Committee must conduct a bipartisan investigation into Russia’s
interference in our election”’). Plaintiff"s insistence that this Court require more has no
basis in the law. l therefore conclude that the Subpoena was a valid part ofthe
Committee’s legitimate legislative investigation
B. Fusion’s Challenge to the Breadth of the Subpoena and the Relevance of the
Records Sought
l"usion next asserts that the Subpoena is overbroad because it seeks to compel
production of` records not pertinent to the Committee’s investigation Pl.’s Renewed l\/lot.
8. Spccifically, Fusion objects to the Committee’s request for bank records related to its
transactions with ten law firms on the ground that “1n1one of the law firms about which
lntervenor seeks information (other than Perkins Coie and Baker Hostetler) contracted
with Fusion GPS to perform work related to Russia or Donald Trump, in any way.” Id. at
9. Fusion similarly alleges that the request for records of transactions between Fusion
and certain media companies journalists and businesses are “not pertinent.” Io’. at 9-1 l.
Plaintiff therefore asks that l enjoin the Bank’s compliance with the Committee’s
14
outstanding request for the seventy responsive transactions on the ground that those
records are irrelevant to the Committee’s legitimate Congressional inquiry.
This Court, however, lacks the authority to restrict the scope of the Committee’s
investigation in the manner plaintiff suggests Congress’s power to investigate “is as
penetrating and far-reaching as the potential power to enact and appropriate under the
Constitution.” Eczsllamz’, 421 U.S. at 504 n.15. lndeed, “1t1he power ofinquiry has been
employed by Congress throughout our history, over the whole range ofthe national
interests concerning which Congress might legislate or decide upon due investigation not
to lcgislate." Bore/'zblall v. UnitedSloles, 360 U.S. 109, 111 (1959). And the Supreme
Court has left no doubt that the issuance of subpoenas is “a legitimate use by Congress of
its power to investigate.” Eastlano’, 421 U.S. at 504. While Fusion is correct that
“Congress’ investigatory power is not, itself, absolute” and that it “is not immune from
judicial review,” Pl.’s Renewed 1\/lot. 5, this Court will not~and indeed, may not_
engage in a line-by-line review ofthe Committee’s requests Cf McSzrrely v. McClellcm,
521 F.2d 1024, 1041 (D.C. Cir. 1975) (“There is no requirement that every piece of
information gathered in 1a Congressional] investigation bejustified before the
judiciary.”).
instead, where, as here, an investigative subpoena is challenged on relevancy
grounds “the Supreme Court has stated that the subpoena is to be enforced ‘unless the
district court determines that there is no reasonable possibility that the category of
materials the Government seeks will produce information relevant to the general subject
of the . . . investigation.”’ Semzte Selecl Comm. on Ethl'cs v. Pockwooa’, 845 F. Supp. 17,
15
21 (D.D.C. 1994) (quoting Unileo’Sloles v. R. E//ilerprl`ses, [nc., 498 U.S. 292, 301
(1991)). ln determining the proper scope of the Subpoena, “this Court may only inquire
as to whether the documents sought by the subpoena are ‘not plainly incompetent or
irrelevant to any lawful purpose 1of the Committee1 in the discharge of 1its1 duties.”’
Poc/cwooo’, 845 1*`. Supp. at 20»21 (quoting McP/iaul v. UnitedStotes, 364 U.S. 372, 381
(196())). And "‘1t1he burden ofshowing that the request is unreasonable is on the
subpoenaed party.” FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977).
A'fter reviewing the record in this case, l cannot say that the documents sought by
the Subpoena are “plainly incompetent or irrelevant” to the Committee’s lawful purpose.
Pac/cwooo’, 845 l*`. Supp. at 20-21. Public reporting has revealed that two law firms
Perkins Coie and Baker l*lostetler, engaged plaintiff"s services on matters directly related
to the Committce’s investigation Glabe Decl. 1111 20~22. 'fhis fact alone provides a
reasonable basis to believe that liusion’s transactions with other law firms during the
same time frame may reveal similarly relevant information
'fhe Committee also has intelligence suggesting that Fusion directed Steele to
meet with at least five major media outlets to discuss his work on the il`rump Dossier. [o’.
at 11 27. lt is thus reasonable for the Committee to pursue records containing Fusion’s
transactions with various media companies and journalists to determine whether they,
too, had involvement with the fl`rump Dossier or with Russian active measures directed at
the 2016 Presidential election And the same is true with respect to the Committee’s
request for records of transactions related to certain businesses the Committee possesses
intelligence that links these businesses_to Russia and Russian operatives and thus the
16
transactions between liusion and these businesses could potentially enable the Committee
to investigate the nature of these relationships lo’. at 1111 28-30. While Fusion assures the
Court that the requested records do not, in fact, contain any transactions that are pertinent
to the Committee’s Russia investigation Pl.’s Renewed l\/lot. 9»1 1, “it is manifestly
impracticable to leave to the subject of the investigation alone the determination of what
information may or may not be probative of the matters being investigated.” Pczckwooo’,
845 F. Supp. at 21. 'l`his is particularly true here, where the full scope of the Committee’s
investigation is classified, and thus plaintiff cannot possibly know the complete
justifications for the Committee’s requests for certain documents See Glabe Decl. 11 19.
Because the Committee possesses the power to investigate Russian active
measures directed at the 2016 Presidential election and there is a reasonable possibility
that the records requested will contain information relevant to that investigation the
Subpoena is not impermissibly broad, even ifthe records turn out to be unfruitful avenues
of investigation See East!cmo’, 42 U.S. at 509 (“Nor is the legitimacy ofa congressional
inquiry to be defined by what it produces The very nature ofthe investigative
function-alike any research-_is that it takes the searchers up some ‘blind alleys’ and into
nonproductive enterprises To be a valid legislative inquiry there need be no predictable
end result."'). 'l`his is particularly true in light ofthe fact that, at this stage ofthe
proceedings the Committee is acting as the “legislative branch equivalent ofa grand
jury, in furtherance of an express constitutional grant of authority.” Pac/cwooa’, 845 F.
Supp. at 21. lt is “well-established that such investigative bodies enjoy wide latitude in
pursuing possible claims of wrongdoing, and the authority of the courts to confine their
17
investigations is extremely limited.” [o'. il`hus conscious ofthe significant separation of
powers principles at play in this litigation and in light of my finding that the records the
Committee has requested could reasonably produce information relevant to the general
subject of the Committee’s inquiry, l need inquire no further into the scope of the
Subpoena in this casc. C].` Barenb/olt, 360 U.S. at 132 (“So long as Congress acts in
pursuance of` its constitutional power, the .1udiciary lacks authority to intervene on the
basis ofthe motives which spurred the exercise ofthat power.”).
C. Fusion’s First Amendment Challenge
Plaintiff’s third basis for enjoining the Bank’s compliance with the Subpoena is
grounded in l*`irst Amendment considerations Speci'fically, Fusion asserts that the
Bank’s compliance with the Subpoena “would abridge Plaintiff’s First Amendment rights
to engage in free political speech, free political activity, and free association.” Pl.’s l\/lot.
l l. According to plaintiff, disclosure of its financial records would reveal the identity of
its clients and thus would hinder them from contracting anonymously with l*`usion in the
f`uture. 'l`o bolster this assertion plaintiff submitted affidavits from anonymous law firm
partners and owners of consulting firms who asserted that they would not have engaged
liusion’s services ifthey had known that their association would not be kept con'fidential.
See, e.g., Pl.’s Reply in Supp. of Appl. for a TRO & Mot. for Prelim. lnj. (“Pl.’s Reply”)
Ex. 5 [Dkt. #13-31; Pl.’s Reply Ex. 7 [Dkt. #13-51. lfFusion’s commercial relationship
with its clients were revealed, plaintiff insists it would chill Fusion’s ability to do certain
kinds of political work and associate with its clients anonymously. Pl.’s l\/lot. 12-14. At
bottom, Fusion’s argument amounts to a claim that the Subpoena intrudes on its
18
associational rights under the First Amendment because it would hinder its ability to
associate anonymously with its clients and would thus chill its protected political
activity. Unfortunately for plaintif`f, l cannot agree.
Plaintiff alleges that the Committee’s disclosure requests violate the private nature
ofplaintif"f"s relationships with its customers_relationships that plaintiff claims are
protected by the First Amendment. But plaintiff points to no authority to support its
theory that the freedom ofassociation protects financial records And this is not
surprising, given that commercial transactions do not give rise to associational rights
even where the subjects of`those transactions are protected by the liirst Amendment.
lndeed, courts have uniformly held that the kind of commercial relationships Fusion
seeks to shield from governmental inquiry here are not protected as associational rights
under the First Amendment.
For example, in FEC v. Aulomal'eo’ Bus. Servs., 888 F. Supp. 539 (S.D.N.Y. 1995),
the court rejected a First Amendment challenge to subpoenas that were issued to vendors
who engaged in business with political associations lt did so on the ground that the
subpoenas sought “information regarding corporate and business transactions not
information regarding any political association the 1vendor1 may have had with 1its
customer`|.” [o'. at 541¢42 (emphasis added). The Court reasoned that, “1a11though
members of a political association and contributors to a political association have First
Amendment associational rights that may be implicated when an administrative agency
serves that political association with a subpoena, the \/endors have failed to cite any law
in support of the proposition that a party that vends goods or services to a political
19
association is entitled to similar First Amendment protection.” Io’. (internal citations
omitted).
Similarly, in [n re Grano'./Wy Subpoena Served Upon Crown Vz'a'eo Unfl'ml'leo’,
[nc., 630 F. Supp. 614 (E.D.N.C. 1986), the court held that the commercial relationship
between a customer and a video store owner “is not protected as an association right
arising under the 11*`1irst 1`A1iiiendineiit” because “1t1here has been no showing that any of
the subpoenaed corporations in tandem with their respective clients have advocated
political, economic, religious or cultural beliefs through their commercial relationship.”
lof at 619. 'l`hus, while the court held that the videotapes involved in the commercial
transactions were a form of speech protected by the First Amendment, the commercial
relationship was not. lo'. The same principle applies here.
While the opposition research l"usion conducted on behalf of its clients may have
been political in nature, Fusion’s commercial relationship with those clients was not, and
thus that relationship does not provide Fusion with some special First Amendment
protection from subpoenas C/f.` Unileo' Slales v. Bell, 414 F.3d 474, 485 (3d Cir. 2005)
(tax professional’s customer list not protected); [DK, Inc. v. Czy. ofClar/c, 836 F.2d 1185,
1 193-95 (9th Cir. 1988) (escort-client relationship not protected); [n re Grcma’ Jury
Subpoena Served Upon PHE, Inc., 790 F. Supp. 1310, 1317 (W.D. Ky. 1992)
(commercial relationship between publisher and customers not protected). To hold
otherwise would be to allow any entity that provides goods or services to a customer who
engages in political activity to resist a subpoena on the ground that its client engages in
political speech. Surely, to recast a line from the great Justice Robert H. Jackson the
20
l"irst /\mcndment is not a secrecy pact l See Termim'e/[o v. Ci'ly ofC/ii'cogo, 337 U.S. 1,
37 (1949) (Jackson, .1., dissenting). l*lere, while Fusion’s clients may have First
Amendment rights associated with their political affiliations Fusion has failed to
establish that it is entitled to similar First Amendment protection on the basis of its
clients’ political activities
l\/loreover, it is worth noting that the likelihood of Fusion’s financial
transactions_let alone the nature of the work being performed for Fusion’s clients_
being made public is quite low. The financial records the Committee seeks show only the
name ofthe payor or payee, the amount ofthe payment, and certain identifying
information; they do nol indicate what the payment was for. And the Committee’s
executive session rules~which require subpoenaed materials including the seventy
transactions at issue in this case, to be kept confidential_are designed to prevent the
disclosure that plaintiff fears See Comm. Rule 12(a)(1) (“1l\/l1embers ofthe Committee
and Committee Staff shall not at any time, either during that person’s tenure as a member
of the Committee or as Committee Staff, or anytime thereafter, discuss or disclose, or
cause to be discussed or disclosed . . . 1a1ny information received by the Committee in
executive session.”); l*louse Rule Vlll.3(b) (“Under no circumstances may minutes or
transcripts of executive sessions or evidence of witnesses in respect thereto, be disclosed
or copied.”); Stewart Decl. 11 20 (“Consistent with Committee and House Rules it is the
Committec’s standard and consistent practice to handle any documents produced to the
Committee pursuant to a subpoena as executive session material.”).
21
Plaintiff`, not surprisingly, rejoins that the Committee’s “assurance that the records
will be maintained in confidence . . . gives no comfort.” Pl.’s Reply 5. To support its
fears l"usion alleges that the Committee “leaked the identity ofDefendant Bank to the
media” and leaked the fact that l"`usion’s principals asserted constitutional privileges
during their executive session interviews Io’, Thus, according to plaintiff, the
Committee cannot be trusted with other confidential information even if it promises to
protect that in formation as executive session material. But apart from plaintiff”s blanket
accusations in its briefing and at oral argument, Fusion has provided no evidence to
support these allegations il`he mere fact that confidential information was disclosed to
the public, without more to show that the Committee played a role in the disclosure, casts
no doubt on the Committee’s compliance with its executive session rules This is
especially true in light of the fact that Fusion itself has played a role in publicizing
aspects of this litigation and the Committee’s investigation See, e.g., Jeremy Herb &
l:ivan Perez, Fus/,`o/t GPS Partners Pleoo’ Ft'/`th Before Hottse lntel, CNN, Oct. 18, 2017,
(noting that Fust`on ’s attorney revealed that Fusion’s principals invoked their Fifth
Amendment rights not to answer questions before the Committee).8 Therefore, absent
evidence to suggest that the Committee will not follow its own rulesfand plaintiff has
presented this Court with none;l must presume that those rules are being followed. See
111 re Navy Chaplat`ncy, 850 F. Supp. 2d 86, 94 (D.D.C. 2012) (1W1ell-settled caselaw
3 'l`liis article is available at littp://www.cnncom/2017/10/18/politics/fusion-gps-partners-plead-fifth-
before-house-intel/index.litml.
22
. . . requires a court to presume that government officials will conduct themselves
properly and in good faith.”).`)
l*`or all of` these reasons l find that li`usion has failed to show that compliance with
the Subpoena poses an actual, meaningful threat to its First Amendment rights.l(’
D. Fusion’s Challenges Pursuant to the RFPA and the GLBA
Finally, plaintiff argues that compliance with the Subpoena would violate two
distinct statutory schemes First, plaintiff asserts that the RFPA, 12 U.S.C. § 3401 et
sec/., “prohibits banks from releasing customer records to a Government authority,” and
thus the Bank’s release ofthe disputed records would violate that Act. Pl.’s l\/lot. 8.
Second, plaintiffalleges that the GLBA, 15 U.S.C. § 1601 et seq., prohibits the Bank
from "disclos1ing1 to a nonaf`filiated third party any nonpublic personal information” and
because l*`usion did not receive the statutorily mandated notice and opportunity to opt out,
the Subpoena cannot be enforced Id. at ll. Ultimately, l find both ofplaintiff"s
arguments to be without merit. How so?
To begin with, plaintiffhas no rights under the RFPA because it is not a “person”
who may qualify as a “customer” for the purposes of that statute. A “customer” is
" Needless to say, l fully expect the Committee to abide scrupulously by all of its representations before
the Court on this issue.
'° Fusion also asserts that the Subpoena “will violate Plaintiff’s . . . confidentiality obligations” and its
“privacy rights.” Pl.’s Renewed l\/lot. 3¢4. With respect to plaintiffs alleged privacy rights the Supreme
Court has made clear that there is no constitutional right to privacy in bank records See United States v.
Ml`//er, 425 U.S. 435, 442 (1976) (noting “1t1he lack of any legitimate expectation of privacy concerning
the information kept in bank records”). And with respect to plaintiffs alleged confidentiality obligations
plaintiff has cited no contractual obligation to retain the confidentiality of its commercial transactions but
even if it had, courts routinely enforce disclosure ofclient identities as part ofa legitimate investigation
See, e.g., Um'/eu’S/cz/e.s' v. Rt'/chie, 15 li.3d 592, 602 (6th Cir. 1994) (“1V1irtually every court to consider
the issue has concluded that client identity and payment of fees is not privileged information”).
Plaintiff’s arguments on these points are to no avail.
23
defined under the RFPA as “any person or authorized representative of that person who
utilized or is utilizing any service ofa financial institutioii.” 12 U.S.C. § 3401(5). A
“person” is defined in the Rl"l’A as “an individual or a partnership of five or fewer
individuals.” ld. at § 3401(4). Plaintiffis a limited liability company organized under
Delaware law, see Compl. 11 6; it is not a partnership or an individual. Fusion insists that
a limited liability company “is akin to a limited partnership,” and thus it should be treated
as a customer under the RFP/-\. l’l.’s Reply 18. But in construing the terms ofthe RFPA,
l “adher|'_e] strictly to the explicit, unambiguous definition of customer found in the Act.”
Ri'a’geley v. Merchants State Bank, 699 F. Supp. 100, 102 (N.D. 'fex. 1988). Because the
RFPA’s definition of person is not ambiguous but instead is clearly set out in the
definitions section of the statute, l must apply its plain ordinary meaning. See Pittsbttrgh
Nat ’l Bo)i/c v. United States 771 F.2d 73, 75 (3d Cir. 1985) (“1A1 definition which
declares what a term means excludes any meaning that is not stated.” (internal citations
alterations and quotation marks omitted)). lndeed, other courts to address this issue
have reached the same conclusion See, e.g., Exchange Pol`nt LLC v. SEC, 100 F. Supp.
2d 172, 174 (S.D.N.Y. 1999) (“'l`he Court concludes that 1\/lovant, as a limited liability
company, is not a person as defined by the Rl-`"l’A and does not have standing to object to
thc Subpoena.”). Fusion accordingly may not object to the Subpoena by invoking the
protections of the RFPA.
Unfortunately for plaintiff, the text of the statute equally forecloses Fusion’s claim
of rights under the GLBA. 'l`he GLBA applies to the disclosure of“nonpublic personal
information” ofa “consumer.” 15 U.S.C. § 6802(a). The Act defines a “consumer” as
24
“ziii individual who obtains from a financial institution financial products or services
which are to be used primarily for personal, f`amily, or household purposes” or “the legal
representative of such an individual.” [o’. at § 6809(9). Plaintiffis a limited liability
company, not an individual, see Compl. 11 6, and thus the GLBA does not shield plaintiff
from the Committee’s document requests
CONCLUSION
"l`he Subpoena at issue in today’s case was issued pursuant to a constitutionally
authorized investigation by a Committee of the U.S. House of Representatives with
jurisdiction over intelligence and intelligence-related activities#eactivities designed to
protect us from potential cyber-attacks now and in the future. The Subpoena seeks the
production of records of financial transactions that have a “reasonable possibility,”
I)ac/cwooo,’, 845 1*`. Supp. at 21, of producing information relevant to that constitutionally
authorized investigation Although the records being sought by the Subpoena are
sensitive in nature~and merit the use of appropriate precautions by the Committee to
ensure they are not publicly disclosed_the nature ofthe records themselves and the
Committec’s procedures designed to ensure their confidentiality, more than adequately
protect the sensitivity of that information
il`hus because l find all of Fusion’s objections to the Subpoena to be unavailing,
l`<`usion cannot satisfy the first factor of its burden for obtaining a preliminary
25
injunction_a likelihood of success on the merits_and l need go no further.ll Plaintiff’s
motion must therefore be DENIED. x
RICHARD J.
United States District Judge
" Our Circuit has traditionally evaluated the four factors required for a preliminary injunction on a
“sliding scale” approach, such that, “1i1f the movant makes an unusually strong showing on one of the
factors then it does not necessarily have to make as strong a showing on another factor.” Davis v.
Pertsion Bert. Guar. Corp., 571 F.3d 1288, 1291~92 (D.C. Cir. 2009). lt is not clear, however, whether
our Circuit’s sliding-scale approach survives the Supreme Court’s decision in Winter, 555 U.S. at 7. See
Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (“1W1e read Winter at least to suggest if not to
hold that a likelihood of success is an independent, free-standing requirement for a preliminary
injunction.” (internal quotation marks omitted)). l need not, however, resolve our Circuit’s lack of clarity
on this issue because l conclude that a preliminary injunction is improper “even under the less demanding
sliding-scale analysis.” Ia’.
First, plaintiff cannot establish irreparable harm because it has not proffered any “proof that the
harm has occurred in the past and is likely to occur again or proof that the harm is certain to occur in the
near future.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Plaintiff makes only
conclusory allegations that its business associations will be harmed and its First Amendment rights will
be chilled ifl do not grant a preliminary injunction Pl.’s Mot. 11~14. But as l have already concluded,
see supra pp. 21~22, plaintiffs fears that its private information will be publicly disclosed are misplaced
in light of the fact that the Committee has guaranteed that any records produced by the Bank will be
protected as executive session material. See Stewart Decl. 1120;Exx0n Corp. v. F.T.C., 589 F.2d 582, 589
(D.C. Cir. 1978) (“1T1here is no indication that disclosure to the Subcommittee . . . will in any way harm
the appellants We have heretofore held that release of information to the Congress does not constitute
‘public disclosure.’ . . . The courts must presume that the committees of Congress will exercise their
powers responsibly and with due regard for the rights of affected parties.”). Plaintiff accordingly has not
met its burden of establishing irreparable harm.
Second, the balance of equities weighs in favor of denying the inj unction, given that the
Committee’s investigation concerns issues of national importance, and the investigation has already been
substantially delayed by the Committee’s inability to review the documents at issue in this case. And
third, there is a strong public interest in allowing Congress to complete its investigation expeditiously to
ensure the integrity of our national elections and the security of our intelligence community. lndeed,
there is a “clear public interest in maximizing the effectiveness of the investigatory powers of Congress,”
and thus it “would . . . require an extremely strong showing . . . to succeed in obtaining an injunction in
light of the compelling public interest in denying such relief.” Ia’. at 594. Plaintiff has not made such a
showing here. l therefore hold that plaintiff has failed to satisfy its burden on all four elements ofa
preliminary injunction regardless of which test l apply.
26