Republican National Committee v. Pelosi ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPUBLICAN NATIONAL COMMITTEE,
Plaintiff,
v. Civil Action No. 22-659 (TJK)
NANCY PELOSI et al.,
Defendants.
MEMORANDUM OPINION
On January 6, 2021, a mob attacked the U.S. Capitol as the House of Representatives and
Senate were set to count and certify the Electoral College vote for the 2020 presidential election.
Later that year, the House established the Select Committee to Investigate the January 6th Attack
on the United States Capitol and tasked it with investigating, among other things, the causes of the
attack. The Select Committee asserts that some in the mob that day were motivated by claims that
the 2020 presidential election was fraudulent or stolen—claims advanced in emails sent by the
Republican National Committee and former President Trump’s campaign. For that reason, the
Select Committee issued a subpoena for related documents and testimony to a third-party vendor
for the RNC. The RNC, in turn, sued Speaker Nancy Pelosi, the Select Committee, its members,
and the third-party vendor, to challenge the subpoena on several grounds.
This case presents an unusual thicket of procedural and substantive issues, in part because
of the way the Select Committee decided to defend the case; in part because of the exceedingly
rare spectacle of a congressional committee subpoenaing the records of one of our country’s two
major political parties; and in part because those records reside with the RNC’s third-party vendor,
rather than the RNC itself. After navigating the thicket, for the reasons explained below, the Court
will dismiss the claims against all defendants except the third-party vendor as barred by the Con-
stitution’s Speech or Debate Clause, dismiss as moot one of the claims against the third-party
vendor, and enter judgment against the RNC on the rest of its claims against the third-party vendor.
I. Factual Background
A. The January 6, 2021 Attack on the U.S. Capitol
The 2020 presidential election was held on November 3, 2020. On December 14, 2020,
the Electoral College met, and a majority of the electors cast their votes for Joseph R. Biden and
Kamala D. Harris. See ECF No. 17 at 19. On January 6, 2021, a mob attacked the U.S. Capitol,
where the House and Senate were set to count and certify the Electoral College vote. According
to the RNC, “[m]any in the mob intended to interfere” with Congress’s counting and certification.
ECF No. 8-1 at 9–10. And some “attacked Capitol police officers, vandalized portions of the
Capitol itself, and forced their way into the Senate chamber.” Id. at 10. At the time, the RNC
described the events of the day as “an attack on our country and its founding principles.” Id.
B. House Resolution 503 and the Select Committee
On June 30, 2021, the House of Representatives established the Select Committee to In-
vestigate the January 6th Attack on the United States Capitol (“Select Committee”). See H.R. Res.
503, § 1, 167 Cong. Rec. H3322–24, H3335 (June 30, 2021). The House instructed the Select
Committee to “investigate and report upon the facts, circumstances, and causes relating to” the
attack, including “the influencing factors that fomented” it. Id. § 3(1). To fulfill that task, the
House empowered the Select Committee to investigate “how technology . . . may have factored
into the motivation, organization, and execution” of the attack, id. § 4(a)(1)(B), including by ex-
amining the roles of any relevant “public and private” entities, id. § 4(a)(1)(C). The Select Com-
mittee must issue a “final report” to the House containing “such findings, conclusions, and
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recommendations for corrective measures . . . as it may deem necessary.” Id. § 4(a)(3). These
“corrective measures” include any “changes in law, policy, procedures, rules, or regulations that
could be taken” to prevent “future acts of violence . . . including acts targeted at American demo-
cratic institutions.” Id. § 4(c)(1).
The authorizing resolution states that the Speaker of the House “shall appoint 13 members
to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.”
H.R. Res. 503, § 2(a). And it empowers the Speaker to designate “one member to serve as chair
of the Select Committee.” Id. § 2(b).
On July 1, 2021, Speaker of the House Nancy Pelosi appointed eight members to the Select
Committee—Representative Bennie Thompson as Chair and Representatives Zoe Lofgren, Adam
Schiff, Pete Aguilar, Liz Cheney, Stephanie Murphy, Jamie Raskin, and Elaine Luria as members.
See 167 Cong. Rec. H3597 (July 1, 2021). House Minority Leader Kevin McCarthy recommended
five more members to Speaker Pelosi: Representative Jim Banks (to serve as Ranking Member)
along with Representatives Rodney Davis, Jim Jordan, Kelly Armstrong, and Troy Nehls. See
ECF No. 6 ¶ 68; ECF No. 17 at 24. Speaker Pelosi agreed to appoint Representatives Davis,
Armstrong, and Nehls but declined to appoint Representatives Banks and Jordan, and she asked
Minority Leader McCarthy to recommend two other members. ECF No. 6 ¶ 69; ECF No. 17 at
24–25 & n.39. That same day, Minority Leader McCarthy decided to withdraw all five of his
recommended appointees in protest. ECF No. 6 ¶ 70; ECF No. 17 at 25 & n.40. A few days later,
Speaker Pelosi appointed Representative Adam Kinzinger as the ninth member of the Select Com-
mittee. See ECF No. 6 ¶ 70; 167 Cong. Rec. H3885 (July 26, 2021). Since then, the Select Com-
mittee has operated as a nine-member body. See ECF No. 6 ¶¶ 67, 70, 86, 118; ECF No. 17 at 25.
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On September 2, 2021, Chairman Thompson named Representative Cheney “Vice Chair” of the
Select Committee. ECF No. 6 ¶ 71; ECF No. 17 at 25.
C. The Select Committee’s Subpoena Procedures
The Select Committee’s authorizing resolution establishes its procedures, including those
procedures relating to the issuance of subpoenas. See H.R. Res. 503, § 5. Among other things, it
makes Rule XI of the Rules of the House of Representatives applicable to the Select Committee.
See id. § 5(c). Rule XI, Clause 2(m)(3)(A)–(D) permits a House committee to issue investigative
subpoenas for documents or testimony to “any person or entity.” See Rules of the House of Rep-
resentatives, 117th Cong. (Feb. 2, 2021). The authorizing resolution also provides that the Chair
of the Select Committee, “upon consultation with the ranking minority member, may order the
taking of a deposition, including pursuant to a subpoena, by a Member or counsel of the Select
Committee.” See id. § 5(c)(6)(A).
D. The Salesforce Subpoena
On February 23, 2022, Chairman Thompson issued a subpoena to Salesforce.com, Inc.
(“Salesforce”). See ECF No. 6 ¶ 2; ECF No. 8-3 at 2. The subpoena ordered Salesforce to produce
documents by March 9, 2022 and to testify at a Select Committee deposition on March 16, 2022.
See ECF No. 8-3 at 2.
In a cover letter accompanying the subpoena, Chairman Thompson laid out the Select
Committee’s rationale for issuing it to Salesforce. According to the letter, “[i]nformation provided
to the Select Committee and public reporting indicate that during the 2020 election cycle,
Salesforce provided its services to President Donald Trump’s reelection campaign and to the
[RNC]” and that between November 3, 2020 and January 6, 2021, “the Trump campaign and the
RNC jointly sent out hundreds of emails to supporters using a Salesforce-owned tool.” ECF No.
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6-1 at 4. The letter cited public reports characterizing the tenor of the emails as “inflammatory,
with nearly every email suggesting that the election was fraudulent, that Democrats had stolen the
election, and that Congress needed to be pressured to overturn the results to keep Trump in power.”
Id. The letter also stated that those same reports noted that nearly every email asked supporters to
donate money. Id. at 4–5. The letter highlighted one email, allegedly sent on January 6, that read:
We have the TRUTH . . . TODAY will be a historic day in our Nation’s his-
tory. . . . Every single Patriot from across the Country must step up RIGHT NOW
if we’re going to successfully DEFEND the integrity of this Election. President
Trump is calling on YOU to bolster our Official Defend America Fund.
Id. at 5. The letter asserted that the Select Committee had evidence that “numerous defendants”
facing January 6-related charges were motivated by “false claims about the election.” Id. at 5.
And it noted that, according to public reports, Salesforce itself had acknowledged that, because
“there remain[ed] a risk of politically incited violence across the country,” it had taken “action to
prevent [the RNC’s] use of our services in any way that could lead to violence.” Id.
For these reasons, the Select Committee informed Salesforce that it was subpoenaing in-
formation “regarding whether and how the Trump campaign used Salesforce’s platform to dissem-
inate false statements about the 2020 election” in the lead-up to January 6. ECF No. 6-1 at 5. The
schedule accompanying the subpoena specified five categories of records demanded. See id. at 6.
Specifically, the subpoena demanded information “referring or relating to” these topics:
1. [For the time period of November 3, 2020, to January 6, 2021, a]ll perfor-
mance metrics and analytics related to email campaigns by or on behalf of
Donald Trump for President, Inc. (“Trump Campaign”), the Republican Na-
tional Committee (“RNC”), or the Trump Make America Great Again Com-
mittee (“TMAGAC”), including but not limited to delivery metrics (send
rates and bounce rates), engagement metrics (opens, open rates, clicks, click
rates, and click-to-open rates), time attributes, and message attributes.
2. [For the time period of November 3, 2020, to January 6, 2021, a]ll records
related to login sessions by individuals associated with the Trump
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Campaign or the RNC into Salesforce’s Marketing Cloud platform, includ-
ing all related metadata.
3. For the time period of January 1, 2021, to January 31, 2021, all documents
and communications concerning investigative reports or analyses con-
ducted by Salesforce regarding the protests, marches, public assemblies,
rallies, or speeches in Washington, D.C. on January 5, 2021, or January 6,
2021 (collectively, the “Washington Rallies”).
4. For the time period of November 3, 2020, to January 31, 2021, all docu-
ments and communications concerning investigative reports or analyses
conducted by Salesforce regarding the use of Salesforce’s platforms by the
RNC or the Trump Campaign and related materials.
5. For the time period of November 3, 2020, to January 31, 2021, all commu-
nications between Salesforce representatives and representatives of the
RNC or the Trump Campaign concerning the 2020 Presidential election, the
continued use of Salesforce’s platforms by the RNC or the Trump Cam-
paign, the Washington Rallies, or any of the facts and circumstances of the
topics that are the subject of any of the above requests.
Id. On February 24, Salesforce notified the RNC of the subpoena. See ECF No. 6 ¶ 41.
E. The Materials at Issue
After issuing the subpoena, the Select Committee engaged with Salesforce to clarify what
information, exactly, the subpoena demanded. See ECF No. 17-3 at 2. In a March 21, 2022 letter
memorializing these conversations, the Select Committee “stress[ed]” to Salesforce that these top-
ics 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 infor-
mation 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
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produce the portion of any responsive record revealing such content. See ECF No. 6 ¶ 137; ECF
No. 17-3 at 3 & n.1.
The Select Committee and Salesforce have made additional representations to the Court
about the materials the Select Committee is demanding from Salesforce in connection with the
subpoena and what Salesforce is preparing to produce. The Select Committee has emphasized that
it is “not seeking any information that would individually identify” any of the RNC’s donors,
volunteers, or email recipients, such as names, home addresses, email addresses, giving history, or
the like. See ECF No. 24 at 73–74. And Salesforce confirmed that it would not be producing any
such information. Id. at 117, 121.
For the first topic identified by the subpoena, the Select Committee explained that it seeks
data by which it can learn how well the RNC’s email campaigns performed in engaging their
recipients from November 3, 2020 to January 6, 2021. See ECF No. 24 at 75–76. In response,
Salesforce is preparing to produce reports that it creates and sends to the RNC containing the
specified metrics for each email (i.e., send rates, bounce rates, opens, open rates, clicks, click rates,
and click-to-open rates), the date each email was sent (i.e., time attributes), and the RNC’s internal
name for each email campaign (i.e., message attributes). See id. at 61–63, 67, 118. The RNC’s
internal name often reflects general details about who among the RNC’s email recipients the email
campaign is targeting—for example, “Detroit Volunteers June 2020”—thus shedding some light
on how the RNC targets its email campaigns. See, e.g., ECF No. 8-2 ¶ 17(j); ECF No. 21 at 16;
ECF No. 24 at 61, 91–92.
For the second topic, the Select Committee represented that it is seeking information to
determine who at the RNC worked on these email campaigns, and when they did, to discover who
might have more information about them. See ECF No. 24 at 76–77. In response, Salesforce is
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preparing to produce its login-session logs that identify individuals who logged in to its platform
and contain technical information about each login session such as login and logout times as well
as user activity during the login session. See id. at 118–19.
For the third and fourth topics, the Select Committee stated that it seeks any reports and
analyses that Salesforce itself conducted about the rallies in Washington, D.C. on January 5th and
6th, the RNC’s and Trump campaign’s use of its platforms, and Salesforce’s own internal com-
munications related to any such reports and analyses. See ECF No. 24 at 77–79. Salesforce plans
to assert its own privilege objections to a “large amount” of the materials responsive to this topic
because much of the material that exists was prepared by Salesforce’s counsel. See id. at 119–20.
But it is preparing to produce some ancillary records responsive to this topic, such as “abuse re-
ports,” which are reports about email recipients complaining about email solicitations, with all
personally identifiable information redacted from those reports. Id.For the fifth topic, the Select Committee explained that it is seeking communications be-
tween Salesforce and the RNC or the Trump campaign about the 2020 presidential election, their
continued use of Salesforce’s platforms, the rallies in Washington, D.C. on January 5th and 6th,
or any of the other topics in the subpoena. See ECF No. 24 at 80. In response, Salesforce is
preparing to produce some emails between itself and @gop.com email addresses, which “may”
contain “some data about the RNC’s use of the platform” but have no donor information or per-
sonally identifiable information of the RNC’s email recipients. See id. at 120. Neither Salesforce
nor the RNC, which presumably has copies of these emails, has further described their contents.
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.
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II. Procedural History
On March 9, 2022, the RNC—the national party committee of the Republican Party—sued
Speaker Pelosi, the Select Committee, and each member of the Select Committee (“House De-
fendants”), to challenge the subpoena. See ECF No. 1 ¶¶ 11–22. On March 15, the RNC filed an
amended complaint, adding Salesforce as a defendant while explaining that it did so merely “to
ensure [the RNC] can obtain effective and complete emergency relief until this dispute is finally
resolved on the merits,” and not because it believed that “Salesforce has breached any contractual
or other duty to the RNC.” See ECF No. 6 ¶¶ 23, 49–50. In its amended complaint, the RNC also
explained that the Select Committee had extended the subpoena return date (i.e., the production
deadline) to March 16. Id. ¶ 47.
The RNC’s amended complaint asserts six claims against all defendants: that (1) the sub-
poena violates the First Amendment; (2) the subpoena violates the Fourth Amendment; (3) the
subpoena does not advance a valid legislative purpose; (4) the Select Committee lacks the neces-
sary congressional authorization to issue the subpoena; (5) the subpoena is excessively broad and
unduly burdensome; and (6) the subpoena violates the Stored Communications Act. See ECF No.
6 ¶¶ 74–142; see also ECF No. 24 at 49; ECF No. 27 at 9 n.1. For relief, the RNC seeks a multitude
of different declarations and injunctions, some in the alternative. See ECF No. 6 at 29–30. The
RNC seeks to enjoin both Salesforce’s production of materials and its deposition testimony in
response to the subpoena, but the RNC does not identify any pertinent distinctions between the
two for purposes of its claims. See id. ¶¶ 38, 74–142; id. at 29–30; ECF No. 24 at 120–21.
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At the same time the RNC filed its amended complaint, it also filed a motion for prelimi-
nary injunction. 1 See generally ECF No. 8. The next day, the Court held a status conference,
during which House Defendants agreed to postpone the subpoena’s return date to April 6. See
Minute Order of March 16, 2022; Minute Entry of March 16, 2022. The Court also set a briefing
schedule and ordered a hearing on the motion on April 1. See Minute Order of March 16, 2022.
Salesforce responded to the motion, mainly to note that it is “essentially a third-party to
this dispute.” See ECF No. 15 at 1–2. House Defendants opposed the motion, arguing both that
their legislative immunity under the Speech or Debate Clause, see U.S. Const. art. I, § 6, cl. 1,
barred the RNC’s lawsuit and that the RNC’s claims failed on the merits. See ECF No. 17 at 28–
49. House Defendants also asked the Court to “‘advance the trial on the merits and consolidate it
with the hearing.’” Id. at 13 (quoting Fed. R. Civ. P. 65(a)(2)). The RNC replied. ECF No. 21.
On April 1, the Court held a hearing on the motion. See ECF No. 24 at 1. During that
hearing, the RNC agreed to House Defendants’ proposal to proceed immediately to the “trial on
the merits.” See id. at 5. For that reason, House Defendants then agreed not to enforce the sub-
poena, and Salesforce agreed not to comply with it, until April 20, 2022, when the Court antici-
pated resolving the merits. See id. at 70–71, 118.
As the hearing progressed, previously unbriefed issues emerged affecting the Court’s abil-
ity to proceed immediately to a final judgment. House Defendants retreated from what appeared
to be their position in their briefing that the Speech or Debate Clause barred the entire lawsuit,
arguing instead that the Clause barred only the claims against them. See ECF No. 23 at 2; ECF
No. 24 at 83–84, 94–97. And the RNC contended that even if the Court dismissed House
1
The National Republican Senatorial Committee (“NRSC”) filed an amicus brief in support of the
RNC’s motion. See ECF No. 18.
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Defendants on that basis, it could still assert all the claims in the amended complaint against
Salesforce as a standalone defendant. See ECF No. 24 at 125–28. Thus, the Court ordered the
RNC and House Defendants—and “invited” Salesforce—to file supplemental briefs addressing
questions potentially bearing on those issues. 2 See ECF No. 23. The parties have since filed those
briefs. See ECF Nos. 25–29. House Defendants later agreed to postpone the return date of the
subpoena to May 2 to allow the Court to fully consider those issues.
III. Legal Standards
The Court must dismiss an action—or any portion of it—if it lacks subject matter jurisdic-
tion. See Fed. R. Civ. P. 12(b)(1), (h)(3). The plaintiff bears the burden of establishing subject
matter jurisdiction by a preponderance of the evidence. See Kokkonen v. Guardian Life Ins., 511
U.S. 375, 377 (1994); Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011)
(citing Lujan v. Def. of Wildlife, 504 U.S. 555, 561 (1992)). When a defendant raises a jurisdic-
tional immunity from suit as a bar to claims, the plaintiff must overcome that defense to avoid
dismissal. See Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006). Further, a plaintiff has
the burden of establishing “‘the irreducible constitutional minimum of standing,’” a jurisdictional
2
The Court asked the parties to address whether (1) the RNC had standing to assert its claims
against Salesforce; (2) whether Rule 19 of the Federal Rules of Civil Procedure required dismissal
of the entire lawsuit if the Speech or Debate Clause required dismissal of House Defendants; and
(3) assuming the entire case should not be dismissed for one reason or another, how the RNC could
assert its claims (almost all of which depend on state action) against Salesforce, a private party
that had no role in issuing the subpoena. See ECF No. 23 at 2–3. The RNC appears to fault the
Court for raising these questions. See ECF No. 27 at 11–12, 21. But the Court had an independent
duty to raise both standing and Rule 19. See, e.g., Schindler Elevator Corp. v. WMATA, 514 F.
Supp. 3d 197, 202 (D.D.C. 2020); Eco Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 390
(D.D.C. 2017). As for the question about proceeding on the merits against only Salesforce, the
Court sought to ensure that Salesforce—which to that point the parties had treated as almost a
neutral third-party—had a “full opportunity to present [its] respective case[]” before the Court
entered a final judgment, potentially against it alone. See Univ. of Tex. v. Camenisch, 451 U.S.
390, 395 (1981) (internal quotation marks omitted).
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requirement. G.Y.J.P. ex rel. M.R.P.S. v. Wolf, No. 20-cv-1511 (TNM), 2020 WL 7318009, at *2
(D.D.C. Dec. 11, 2020) (quoting Lujan, 504 U.S. at 560). When “deciding questions of jurisdiction
under Rule 12(b)(1),” the Court “is not confined to the pleadings and may consider outside mat-
ters.” See Jackson, 448 F. Supp. 2d at 200.
The Court must grant summary judgment if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A dispute is “gen-
uine” if the evidence is such that a reasonable factfinder could return a verdict for the non-moving
party. Scott v. Harris, 550 U.S. 372, 380 (2007). A fact is “material” if it is capable of affecting
the outcome of the litigation under the applicable substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). 3
IV. Analysis
The Court now proceeds into the thicket. To begin with, the RNC’s claims against House
Defendants must be dismissed. As the Framers intended, House Defendants are immune from suit
under the Speech or Debate Clause. Further, the Court lacks subject matter jurisdiction to pass on
the merits of the claims against them in the alternative, as they urge. Turning next to the RNC’s
claims against Salesforce, the Court finds that the RNC has standing to pursue them. But on the
merits, those claims come up short—except one, which is moot—given the highly deferential
3
The Court finds that “the record is sufficient for a determination on the merits under the summary
judgment standard, or, where reliance on the record is unnecessary, under the motion to dismiss
standard.” See March for Life v. Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015). Thus, with
the consent of the parties, the Court consolidates the preliminary injunction motion with the trial
on the merits on all claims under Federal Rule of Civil Procedure 65(a)(2). See id.; cf. Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 511 n.17 (1975) (instructing district courts to give “the
most expeditious treatment” to cases in which “one branch of Government is being asked to halt
the functions of a coordinate branch”).
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review the Court must give Congress’s investigative power and the nature of the materials at issue.
Even so, the RNC identified important First Amendment interests implicated by the subpoena that
would have presented a much different question for the Court had the materials at issue not been
narrowed after discussions between the Select Committee and Salesforce.
A. The Court Lacks Subject Matter Jurisdiction over the RNC’s Claims Against
House Defendants Because They Are Immune from Suit Under the Speech or
Debate Clause
The Speech or Debate Clause provides that “for any Speech or Debate in either House,
[Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6,
cl. 1. Its purpose is “to protect the individual legislator, not simply for his own sake, but to preserve
the independence and thereby the integrity of the legislative process.” United States v. Brewster,
408 U.S. 501, 524 (1972). The Clause “serves the additional function of reinforcing the separation
of powers so deliberately established by the Founders.” Eastland, 421 U.S. at 502 (quoting United
States v. Johnson, 383 U.S. 169, 178 (1966)). When it applies, the Clause provides immunity from
both criminal and civil suits. See id. at 502–03. And, in our Circuit, it is a jurisdictional bar. See,
e.g., Howard v. Off. of Chief Admin. Officer of U.S. House of Reps., 720 F.3d 939, 941 (D.C. Cir.
2013). It may be invoked as a defense to suit where, as here, congresspersons or their adjuncts are
sued—that is, “made a defendant in a judicial proceeding.” See United States v. Am. Tel. & Tel.
Co., 567 F.2d 121, 130 (D.C. Cir. 1977); see also Eastland, 421 U.S. at 495, 512; Judicial Watch,
Inc. v. Schiff, 998 F.3d 989, 990, 993 (D.C. Cir. 2021).
“The Supreme Court has consistently read the Speech or Debate Clause ‘broadly’ to
achieve its purposes.” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir. 2015) (quoting Eastland,
421 U.S. at 501). Thus, although the Clause speaks of “Speech or Debate,” it protects all “legis-
lative acts.” Doe v. McMillan, 412 U.S. 306, 312 (1973). An act is “legislative” if it is “generally
13
done in a session of the House by one of its members in relation to the business before it.” Kilbourn
v. Thompson, 103 U.S. 168, 204 (1880). More specifically, the Clause covers matters that are “an
integral part of the deliberative and communicative processes by which Members participate in
committee and House proceedings with respect to the consideration and passage or rejection of
proposed legislation or with respect to other matters which the Constitution places within the ju-
risdiction of either House.” Gravel v. United States, 408 U.S. 606, 625 (1972). The “act ‘of
authorizing an investigation pursuant to which . . . materials [may be] gathered’ is an integral part
of the legislative process.” Eastland, 421 U.S. at 505 (citing McMillan, 412 U.S. at 313). And the
“[i]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to
investigate,” which “plainly” meets the test laid out in Gravel. Id. at 504.
Applying these principles here, the Court has little trouble concluding that the Speech or
Debate Clause immunizes House Defendants from this suit and that they must be dismissed for
that reason. Eastland, in which the Supreme Court resolved a challenge to a subpoena issued by
a Senate subcommittee, provides a useful analytical template.
First, the Eastland Court considered whether a Senate subcommittee investigation was “re-
lated to and in furtherance of a legitimate task of Congress.” See 421 U.S. at 505. The Court
examined the Senate resolution authorizing the subcommittee and found that it was enough to
show that the investigation “concerned a subject on which ‘legislation could be had.’” Id. at 506(quoting McGrain v. Daugherty, 273 U.S. 135, 177 (1927)). Thus, the Court held that the sub-
committee’s investigation fell “within the sphere of legitimate legislative activity.” Id. (internal
quotation marks omitted). Here, the D.C. Circuit has already held that the Select Committee’s
investigation has a “‘valid legislative purpose’ and its inquiry ‘concern[s] a subject on which leg-
islation could be had,’” as laid out in its authorizing resolution. See Trump v. Thompson, 20 F.4th
1410, 41–42 (D.C. Cir. 2021) (quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031–32
(2020)). The parties agree that these determinations bind the Court. See ECF No. 17 at 12, 33;
ECF No. 21 at 9; ECF No. 24 at 40, 42.
Second, the Eastland Court then inquired into “the propriety of making [the subpoena tar-
get whose bank records were demanded] a subject of the investigation and subpoena.” See 421
U.S. at 506. But the Court stressed that “the scope of [its] inquiry [was] narrow.” Id. And it
reaffirmed that, in conducting this inquiry, “courts should not go beyond the narrow confines of
determining that a committee’s inquiry may fairly be deemed within its province.” Id. (quoting
Tenney v. Brandhove, 341 U.S. 367, 378 (1951)).
The House instructed the Select Committee to “investigate and report upon the facts, cir-
cumstances, and causes relating to” the January 6 attack, including “the influencing factors that
fomented” it. H.R. Res. 503, § 3(1). The House also empowered the Select Committee to inves-
tigate “how technology . . . may have factored into the motivation” for the attack, id. § 4(a)(1)(B),
including by examining the roles of any relevant “public and private” entities, id. § 4(a)(1)(C).
And it tasked the Select Committee with reporting to the House its “findings, conclusions, and
recommendations” for legislative remedial measures. Id. § 4(a)(3), (c).
Now, according to the unchallenged assertions of the Select Committee: (1) its investiga-
tion and public reporting suggest that the RNC and the Trump campaign used Salesforce’s plat-
form and tools to send emails between November 3, 2020 and January 6, 2021 asserting that the
2020 presidential election was fraudulent or stolen; (2) those claims, in turn, motivated some who
participated in the January 6 attack on the Capitol; and (3) Salesforce itself acknowledged that,
because “there remain[ed] a risk of politically incited violence across the country,” it had taken
“action to prevent [the RNC’s] use of [its] services in any way that could lead to violence.” ECF
15
No. 6-1 at 4–5. Through the subpoena, House Defendants seek, and Salesforce has agreed to
provide, information—limited to a few months’ time—about whether and how successfully the
RNC used Salesforce’s platform to spread these claims about the 2020 presidential election. See
id. at 5–6. Given all the above, the Select Committee’s decision to subpoena the RNC’s
Salesforce-held information may fairly be deemed within its province and thus falls within the
scope of the Clause. See Eastland, 421 U.S. at 506; Rangel, 785 F.3d at 24.
The RNC argues that the Speech or Debate Clause does not apply for several reasons, but
none are persuasive. First, it argues that the subpoena serves no legitimate legislative purpose,
and thus falls outside the Clause’s protection, because the information sought is irrelevant to the
Select Committee’s investigation. Given the above and the narrow scope of the Court’s review
under the Clause, the Court cannot agree. In these circumstances, the “wisdom of congressional
approach or methodology is not open to judicial veto.” Eastland, 421 U.S. at 509 (citing McMillan,
412 U.S. at 313). Courts routinely reject similar arguments against subpoenas issued by members
of Congress that are shielded by the Clause. See, e.g., Judicial Watch, 998 F.3d at 992.
The RNC refines this argument a bit by asserting that the subpoena is impermissibly over-
broad and that this overbreadth places it outside the immunity conferred by the Clause. The Court
notes, as described above, that negotiations between House Defendants and Salesforce greatly nar-
rowed the scope of the materials at issue. For example, House Defendants are not seeking, and
Salesforce is not producing, any disaggregated information about any of the RNC’s donors, vol-
unteers, or email recipients, including any person’s personally identifiable information. Moreover,
even the RNC’s own confidential information that is undeniably at issue is relatively narrow in
scope.
16
The RNC responds by suggesting that the Court should not credit the results of these ne-
gotiations. But courts regularly credit discussion that narrows disputes over congressional sub-
poenas. See, e.g., Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34, 37 (D.D.C. 2018). Even the
Supreme Court, at least once, has required recipients of legislative subpoenas who object to their
scope to work with Congress to narrow the dispute so that such issues can be “easily . . . remedied”
without judicial involvement. See McPhaul v. United States, 364 U.S. 372, 382 (1960). Thus, the
Court credits those negotiations, which significantly reduced the subpoena’s potential overbreadth
and made clear that the personally identifiable information of “millions” of RNC supporters is no
longer at risk of disclosure. See ECF No. 21 at 11. Obviously, should House Defendants change
course and demand, or Salesforce suggest it was preparing to produce, any materials beyond what
they have represented are at issue, that would be a different story.
Still, the RNC argues that the subpoena is overbroad because the Select Committee undis-
putedly seeks information “wholly unrelated” to the January 6 attack, such as “holiday greeting”
campaigns that took place between November 3, 2020 and January 6, 2021. However, the Speech
or Debate Clause prohibits the Court from parsing the Select Committee’s demands so finely. The
Court is unaware of any court that has ever done so when deciding whether the Clause applies.
Most obviously, the Eastland Court did not do so. To the contrary, it held that a “cursory look at
the facts” revealed the “legitimacy” of that subpoena, which sought “any and all” financial records
of a political organization, without examining whether some subset of the financial records sought
exceeded the subpoena’s legitimate scope. See Eastland, 421 U.S. at 494, 506.
Moreover, in a similar situation, the Supreme Court in McMillan declined to wade into the
particulars of a dispute over information included in the record of a Senate subcommittee’s hear-
ings and its committee report. In that case, the plaintiffs argued that congressional defendants
17
could be held liable for their decisions to include that information in those places, claiming that
the information was “unnecessary and irrelevant to any legislative purpose” served by the record
and the report. See McMillan, 412 U.S. at 312. The Court seemed to agree that the information
was not “even remotely useful” to “any legislative purpose,” but still it held that the Clause “pre-
termit[ted] the imposition of liability on any such theory” by preventing the judiciary from second-
guessing such “legislative judgment[s].” See id. at 312–13. So too here. See Eastland, 421 U.S.
at 509 (citing McMillan, 412 U.S. at 313). That is the nature of the “absolute” immunity granted
by the Clause when it applies. See Rangel, 785 F.3d at 24.
Second, the RNC argues that the Speech or Debate Clause should not apply because the
subpoena is merely an “open attempt by political foes to unearth a competing political party’s
internal deliberations and political and digital strategy,” a point the NRSC forcefully echoes.
Given the obvious political dynamics involved, this is an understandable point. And to be sure,
although the subpoena has been narrowed through negotiation, the Court recognizes the highly
unusual nature of the Select Committee’s demand for what is mostly the RNC’s information and
documents, even though they are in Salesforce’s possession. The problem for the RNC is that this
Court may not examine House Defendants’ motives when evaluating whether the Clause applies.
Courts “are not the place for such controversies.” See Tenney, 341 U.S. at 378. Instead, “[w]hether
an act is legislative” for purposes of the Clause “turns on the nature of the act, rather than on the
motive or intent of the official performing it.” See Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).
Thus, when acts are “legislative,” as the subpoena is here, the Clause “protects against inquiry
. . . into the motivation for those acts.” See Brewster, 408 U.S. at 525.
Third, the RNC argues that the Court cannot decide whether the Clause applies until it
addresses the merits of the RNC’s “congressional authorization” claim. The RNC contends that
18
the Court must first decide whether the Select Committee is duly constituted and lawfully permit-
ted to issue subpoenas despite having only nine members, no “ranking member,” and no member
recommended by Minority Leader McCarthy. Like the RNC’s prior argument, this has intuitive
appeal, but again, precedent forecloses it. An “act does not lose its legislative character” for
Speech or Debate Clause purposes “simply because a plaintiff alleges that it violated the House
Rules.” Rangel, 785 F.3d at 24. Instead, legislative immunity applies whether the disputed legis-
lative action “was regular, according to the Rules of the House, or irregular and against their rules.”
See Kilbourn, 103 U.S. at 203 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808)); accord Tenney,
341 U.S. at 373–74. Thus, House Defendants are immune from suit even assuming the subpoena
was issued irregularly and against the House’s rules governing the committee. 4 See, e.g., Judicial
Watch, 998 F.3d at 992–93.
In sum, the subpoena falls “within the ‘legitimate legislative sphere.’” See Eastland, 421
U.S. at 503. Thus, “the Speech or Debate Clause is an absolute bar” to the RNC’s claims against
House Defendants, and they must be dismissed because the Court lacks subject matter jurisdiction
over the claims against them. See id. at 503, 512; Judicial Watch, 998 F.3d at 993.
* * *
Because House Defendants must be dismissed based on the Court’s lack of subject matter
jurisdiction over the claims against them, the Court cannot reach the merits of those claims. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); Ex parte McCardle, 74 U.S. (7
4
In arguing otherwise, the RNC relies on a line of cases for the proposition that “rules of Congress
and its committees are judicially cognizable.” See Yellin v. United States, 374 U.S. 109, 114
(1963). And this is true, at times. But in none of these cases was the immunity conferred by the
Clause at issue. See, e.g., id.; Christoffel v. United States, 338 U.S. 84 (1949); Exxon Corp. v.
FTC, 589 F.2d 582 (D.C. Cir. 1978).
19
Wall.) 506, 514 (1868). The only way the Court can consider the merits of this case is if the Court
has subject matter jurisdiction over the RNC’s claims against Salesforce.
House Defendants argue otherwise, asserting that Lesesne ex rel. B.F. v. District of Colum-
bia, 447 F.3d 828 (D.C. Cir. 2006), permits the Court to “issue a merits-based alternative holding”
even if it concludes that it lacks subject matter jurisdiction over the case. See ECF No. 30 at 2–3.
Unsurprisingly, Lesesne does not stand for this proposition. There, the D.C. Circuit held merely
that a district court did not erroneously reach the merits after finding the case moot because the
district court was wrong to find the case moot and so “did, in fact, have jurisdiction” to reach the
merits. See 447 F.3d at 833. It also recognized that, had the district court lacked subject matter
jurisdiction on account of mootness, then it “would have been without jurisdiction to consider the
merits.” See id. (quoting Info. Handling Servs., Inc. v. Defense Automated Printing Servs., 338
F.3d 1024, 1031 (D.C. Cir. 2003)).
Thus, Lesesne stands only for the point that a court with subject matter jurisdiction does
not err in exercising it, even if the court incorrectly concludes that it lacks jurisdiction. But Lesesne
is not a license for courts to find that they lack subject matter jurisdiction and then issue merits-
based alternative holdings just in case they are wrong about the jurisdictional question. House
Defendants’ reading of Lesesne runs headlong into Steel Co.’s well-known dictate that a court has
“no authority” to reach the merits, even in the “alternative,” if it concludes that it lacks subject
matter jurisdiction. See Jackson v. Off. of Mayor of District of Columbia, 911 F.3d 1167, 1171
(D.C. Cir. 2018); see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981).
B. The Court Has Subject Matter Jurisdiction over the RNC’s Claims Against
Salesforce
To repeat, the RNC asserts the same claims against both House Defendants and Salesforce.
Whether the Court may exercise subject matter jurisdiction over the claims against Salesforce turns
20
on whether the RNC has standing to pursue them. 5 See Grocery Mfrs. Ass’n v. EPA, 693 F.3d
169, 174 (D.C. Cir. 2012); Whitlock v. U.S. Dep’t of Homeland Sec., No. 21-cv-807 (DLF), 2022
WL 424983, at *4 (D.D.C. Feb. 11, 2022). The parties have identified no case in which a court
addressed whether a plaintiff had standing to pursue claims like these against a third-party recipient
of a congressional subpoena as a standalone defendant after the congressional defendants were
dismissed on Speech or Debate Clause grounds. In a few cases in which the issue might have
come up, the court had no need to address it because the congressional defendants had inter-
vened—that is, they were not “made defendants” involuntarily—rendering the Clause inapplica-
ble. See, e.g., Am. Tel. & Tel. Co., 567 F.2d at 128–30 & n.28; see also Mazars USA, 140 S. Ct.
at 2028; Bean LLC, 291 F. Supp. 3d at 39; cf. Eastland, 421 U.S. at 517–18 & n.4 (Marshall, J.,
concurring in the judgment) (observing that a court would “not necessarily” need to dismiss a case
in which the Clause requires dismissing the congressional defendants if the third-party recipient
of the subpoena had been sued as well and remained in the case). For the reasons explained below,
the Court finds that the RNC has standing to assert its claims against Salesforce.
The “irreducible constitutional minimum of standing” requires the RNC to show that it will
imminently suffer an injury-in-fact, that the injury is fairly traceable to Salesforce, and that the
injury is likely to be redressed by a favorable decision. See Lujan, 504 U.S. at 560–61. When
considering these elements, the Court “must assume arguendo the merits” of the claims at issue,
including that the plaintiff has a cause of action against the defendant to assert the claims. See
5
As explained below, the Stored Communications Act claim is moot, meaning the Court lacks
subject matter jurisdiction over it even if the RNC has standing to assert it against Salesforce. See,
e.g., Ruseva v. Rosenberg, 490 F. Supp. 3d 320, 322 (D.D.C. 2020). But for simplicity’s sake, the
Court will address this point when discussing the “merits” of each claim, and it omits that claim
from this standing analysis.
21
Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007); City of Waukesha v. EPA, 320
F.3d 228, 235 (D.C. Cir. 2003) (per curiam).
First, the RNC has established as to each of its claims that it will imminently suffer an
injury-in-fact stemming from Salesforce’s compliance with the subpoena. An injury-in-fact is,
fundamentally, a “cognizable interest” that the challenged action will impair. See Lujan, 504 U.S.
at 562–63. Each of the RNC’s claims arises out of such a “cognizable interest.” See, e.g., AFL-
CIO v. FEC, 333 F.3d 168, 176–78 (D.C. Cir. 2003) (First Amendment); Wikimedia Found. v.
NSA, 857 F.3d 193, 209–10 (4th Cir. 2017) (Fourth Amendment); Eastland, 421 U.S. at 501 n.14
(valid legislative purpose); Yellin, 374 U.S. at 114 (Rules of Congress and its Committees). And
the threatened injuries to these interests are imminent. See ECF No. 6 ¶¶ 44–50; ECF No. 8-5
¶¶ 10–12.
Second, the RNC has shown that its cognizable injuries are “fairly traceable” to
Salesforce’s imminent disclosure of the materials at issue to the Select Committee. To “show that
the alleged injury is fairly traceable to the challenged action,” the RNC “must make a reasonable
showing that but for” Salesforce’s imminent action “the alleged injury will not occur.” Am. Fed.
of Gov’t Emps., AFL-CIO v. United States, 104 F. Supp. 2d 58, 63 (D.D.C. 2000) (cleaned up).
This element may be met even if a non-party is a “key player in the causal story.” See Orangeburg
v. FERC, 862 F.3d 1071, 1080 (D.C. Cir. 2017). Here, if Salesforce produces the materials at
issue, the RNC’s injuries will occur. That is enough to make the RNC’s injuries fairly traceable
to Salesforce.
Granted, a plaintiff does not show fair traceability when another party’s action will “inde-
pendently cause[]” the alleged injuries. See Delta Constr. Co. v. EPA, 783 F.3d 1291, 1297 (D.C.
Cir. 2015). Not so here. Salesforce possesses the materials the Select Committee demands, and
22
the materials will not be disclosed without Salesforce’s compliance with the subpoena. Thus,
Salesforce’s compliance is a necessary link in the fair-traceability chain.
In addition, that Salesforce’s disclosure of the materials at issue to the Select Committee
flows from a legal duty to comply with a subpoena—rather than a voluntary choice—does not
mean that the RNC’s threatened injuries are not fairly traceable to its compliance. See ECF No. 6
¶ 41; ECF No. 6-1 at 4–10; ECF No. 24 at 117. For example, in Powell v. McCormack, a con-
gressman sued members as well as employees of the House of Representatives over a resolution
calling for his “exclusion” and sought relief against both the members and the employees. See 395
U.S. 486, 492–94 (1969). The Supreme Court held that the congressman could maintain his action
against the House employees even though they were simply “acting pursuant to express orders of
the House.” See id. at 501–06. Although the Court was not addressing standing in Powell, the
D.C. Circuit has since considered its implications in the standing context and acknowledged that
the “causal connection” between the employees’ actions and the plaintiff’s injuries was “obvious.”
See Common Cause v. Biden, 748 F.3d 1280, 1284 (D.C. Cir. 2014). Similarly, fair traceability is
present here even though Salesforce’s threatened disclosure of the RNC’s materials flows from the
Select Committee’s “express orders” rather than Salesforce’s own decision. See ACLU of Minn.
v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1091, 1093 (8th Cir. 2011); Isabel v. Reagan, 394 F.
Supp. 3d 966, 972–73 (D. Ariz. 2019).
Third, the RNC has shown redressability. “The redressability element of standing ‘is vir-
tually always merely the reciprocal of causation.’” LTMC/Dragonfly, Inc. v. Metro. Wash. Air-
ports Auth., 699 F. Supp. 2d 281, 292 (D.D.C. 2010) (quoting Viet. Veterans of Am. v. Shinseki,
599 F.3d 654, 658 (D.C. Cir. 2010)); see also Dynalantic Corp. v. Dep’t of Def., 115 F.3d 1012,
1017 (D.C. Cir. 1997). A favorable ruling from the Court on the merits of any of the RNC’s
23
challenges to the subpoena would bar Salesforce from complying with it, either in whole or in part.
See Powell, 395 U.S. at 549 n.86. Thus, just as causation is satisfied, so is redressability.
To be sure, redressability may be absent when “the court’s power to redress an injury” is
“independently impaired,” even if a defendant’s challenged action causes the injury. See Viet.
Veterans, 599 F.3d at 658 (citing Renal Phys. Ass’n v. HHS, 489 F.3d 1267, 1278 (D.C. Cir. 2007)).
For instance, as with causation, redressability is absent when the “independent choice” of parties
beyond the court’s power would still cause the harm. See Renal Phys. Ass’n, 489 F.3d at 1278;
see also LTMC/Dragonfly, 699 F. Supp. 2d at 292. This is not the case here. Again, Salesforce’s
compliance with the subpoena is necessary to cause the RNC’s injuries, and Salesforce is not be-
yond the Court’s power. Should the Court find for the RNC on the merits of its claims directed at
the subpoena, remedies targeted at Salesforce would redress the RNC’s injuries. 6
C. Summary Judgment Is Warranted Against the RNC on Its Claims Against
Salesforce
With House Defendants dismissed, and the RNC’s standing to pursue its claims against
Salesforce established, two other issues that could pose obstacles to the RNC pursuing its claims
against Salesforce require mention before the Court turns to the merits of those claims. First, Rule
19 of the Federal Rules of Civil Procedure would require dismissal of the entire action if House
Defendants were indispensable parties such that the action could not proceed against only
6
Additionally, a plaintiff cannot show redressability if the only redress the Court could grant would
be unconstitutional. See, e.g., Johnson v. Comm’n on Pres. Debates, 869 F.3d 976, 981–82 (D.C.
Cir. 2017). For example, in Johnson, the D.C. Circuit concluded that the plaintiffs had not shown
redressability because the redress available would likely violate the First Amendment. See id. No
such constitutional impediment to redress is present here. True, the Speech or Debate Clause bars
an order directed at House Defendants, but they acknowledge that the Clause does not bar redress
against Salesforce. See ECF No. 24 at 83, 85–86; ECF No. 28 at 7; cf. Rangel, 785 F.3d at 25 n.3
(“[T]he Speech or Debate Clause is technically the privilege of the Member and congressmen can
therefore waive the immunity of their aides.” (cleaned up)).
24
Salesforce. See Fed. R. Civ. P. 19(a)–(b). Second, for the RNC to prevail on most of its claims
against Salesforce—each of which challenges the subpoena issued by the Select Committee—it
would need to establish that Salesforce qualifies as a “state actor” for purposes of those claims.
See, e.g., Daniels v. Union Pac. R.R. Co., 480 F. Supp. 2d 191, 196 (D.D.C. 2007). But neither of
these issues is a jurisdictional hurdle to reaching the merits. See Lincoln Prop. Co. v. Roche, 546
U.S. 81, 90 (2005) (Rule 19); Wright & Miller, 7 Fed. Prac. & Proc. Civ. § 1611, nn.18–26 &
accompanying text (3d ed. Apr. 2022 update) (Rule 19); Johnson, 869 F.3d at 983–84 (state-action
doctrine); id. at 987 (Pillard, J., concurring in part and concurring in the judgment) (state-action
doctrine). Thus, to avoid having to decide those issues, and because the Court finds against the
RNC on all its claims on other grounds, the Court assumes without deciding that House Defendants
are not indispensable under Rule 19 and that Salesforce may be treated as a “state actor” in this
context. 7
Before turning to those claims, the Court first lays out the principles governing Congress’s
investigative power and the Court’s limited role in reviewing Congress’s exercise of that power.
Congress has no enumerated “investigations” power. See U.S. Const. art. I, § 8. But the
Supreme Court has long recognized that each house of Congress has the implied “power ‘to secure
needed information’ in order to legislate” and thus to issue subpoenas and employ other
7
Even if a Rule 19 analysis were necessary, because the Court finds summary judgment warranted
against the RNC, it is self-evident that House Defendants’ “absence” will not “as a practical matter
impair or impede [their] ability to protect the[ir] interest” and will not “prejudice” them. Fed. R.
Civ. P. 19(a)(1)(B)(i), (b)(1). In addition, Salesforce has argued that, if it were considered a “state
actor” here because of its compliance with the subpoena, it would be entitled derivatively to House
Defendants’ legislative immunity. See ECF No. 25 at 7–8. Even if that were so, especially given
how the Supreme Court has characterized an analogous “derivative” immunity, the Court sees no
reason why this defense would be a jurisdictional bar to considering the merits. Cf. Campbell-
Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016); In re U.S. Off. of Personnel Mgmt. Data Sec.
Breach Litig., 928 F.3d 42, 68–69 (D.C. Cir. 2019) (per curiam).
25
compulsory process to obtain public and private information alike. See Mazars USA, 140 S. Ct. at
2031 (quoting McGrain, 273 U.S. at 161). This power “is as penetrating and far-reaching as the
potential power to enact and appropriate under the Constitution.” Barenblatt v. United States, 360
U.S. 109, 111 (1959). Thus, it “encompasses inquiries into,” among other things, “defects in our
social, economic or political system for the purpose of enabling the Congress to remedy them.”
Mazars USA, 140 S. Ct. at 2031 (internal quotation marks omitted).
That said, because this power is justified “solely as an adjunct to the legislative process,”
there are inherent limits to it. See Mazars USA, 140 S. Ct. at 2031. First, the targets of “legislative
subpoenas retain their constitutional rights throughout the course of an investigation.” See id. at
2032, 2035. Thus, a legislative investigation may be forced to yield when it threatens a “dissipa-
tion of precious constitutional freedoms.” 8 See Watkins v. United States, 354 U.S. 178, 204 (1957).
Second, there are several related limitations reflecting the principle that both a legislative investi-
gation and a specific legislative-investigative act must have a “valid legislative purpose”—that is,
each must be “related to, and in furtherance of, a legitimate task of the Congress,” such as pursuing
a “subject on which legislation could be had.” See Mazars USA, 140 S. Ct. at 2031 (cleaned up);
see also Quinn v. United States, 349 U.S. 155, 161 (1955) (observing that the “power to investi-
gate” does not “extend to an area in which Congress is forbidden to legislate”). For instance,
Congress cannot issue a subpoena “for the purpose of ‘law enforcement.’” See Mazars USA, 140
S. Ct. at 2032. Also, “Congress has no general power to inquire into private affairs and compel
disclosures” without a valid legislative purpose to do so. See id. (cleaned up); Quinn, 349 U.S. at
161. In other words, Congress cannot “expose for the sake of exposure.” Mazars USA, 140 S. Ct.
8When the Speech or Debate Clause applies, however, it renders such rights nonjusticiable. See,
e.g., Rangel, 785 F.3d at 24; Eastland, 421 U.S. at 509–10 & n.16.
26
at 2032 (internal quotation marks omitted); Watkins, 354 U.S. at 187. Thus, investigations con-
ducted “solely” for any of these reasons are “indefensible.” See Mazars, 140 S. Ct. at 2032.
Congressional committees may wield this investigatory power when the relevant body del-
egates it to them. See, e.g., McGrain, 273 U.S. at 168. But to “issue a valid subpoena,” a “com-
mittee . . . must conform strictly to the resolution establishing its investigatory powers.” Exxon
Corp., 589 F.2d at 592; see also Bean LLC, 291 F. Supp. 3d at 42. Ordinarily, a committee’s
conformity to its authorizing resolution or governing rules is nonjusticiable. See, e.g., Metzenbaum
v. Fed. Energy Reg. Comm’n, 675 F.2d 1282, 1287 (D.C. Cir. 1982) (per curiam). But a court may
pass on this sort of challenge to a committee’s actions when “rights of persons other than members
of Congress are jeopardized by Congressional failure to follow its own procedures.” 9 See id.Although these limitations constrain Congress’s investigative power, the Court’s role in
policing whether Congress has transgressed them is itself limited, owing in large part to the sepa-
ration-of-powers concerns implicated when the judiciary is asked to decide the validity of a legis-
lative-investigative act. See Sanders v. McClellan, 463 F.2d 894, 902 (D.C. Cir. 1972). The
Court’s role is circumscribed in several ways.
First, the Court’s review is “deferential” when assessing whether an investigative act has a
valid legislative purpose, bearing in mind that the “legitimate legislative purpose bar is a low one”
and that the legitimate “purpose need not be clearly articulated.” See Comm. on Ways & Means,
U.S. House of Reps. v. U.S. Dep’t of Treasury, No. 19-cv-1974 (TNM), 2021 WL 5906031, at *5,
*12 (D.D.C. Dec. 14, 2021) (citing McGrain, 273 U.S. at 177–80). Indeed, the Court is “bound to
presume that the action” has a “legitimate object” so long as “it is capable of being so construed.”
9
Subject, once again, to the caveat that the Speech or Debate Clause renders nonjusticiable such
a challenge when the Clause applies. See, e.g., Rangel, 785 F.3d at 24; Kilbourn, 103 U.S. at 203.
27
See McGrain, 273 U.S. at 178–79 (internal quotation marks omitted). In other words, the legisla-
tive investigators need not “declare in advance what [they] meditate[] doing when the investigation
[is] concluded.” See In re Chapman, 166 U.S. 661, 670 (1897).
Second, in assessing whether the legislative purpose is a valid one, the Court must account
for Congress’s “wide boundaries” in investigating. See Barsky v. United States, 167 F.2d 241, 245
(D.C. Cir. 1948). After all, the “very nature of the investigative function . . . is that it takes the
searchers up some ‘blind alleys’ and into nonproductive enterprises.” Eastland, 421 U.S. at 509.
Thus, “Congress is not limited to securing information precisely and directly bearing on some
proposed measure” but also may seek information having “an indirect bearing on the subject.”
United States v. Bryan, 72 F. Supp. 58, 61 (D.D.C. 1947), aff’d sub. nom. Barsky, 167 F.2d 241.
And when considering the valid legislative purpose in the scope of a subpoena, the Court’s review
is limited to determining “whether the documents sought . . . are ‘not plainly incompetent or irrel-
evant to any lawful purpose’” of the committee “‘in the discharge of [its] duties.’” Senate Select
Comm. on Ethics v. Packwood, 845 F. Supp. 17, 20–21 (D.D.C. 1994) (quoting McPhaul, 364 U.S.
at 381); cf. Hutcheson v. United States, 369 U.S. 599, 618–19 (1962) (plurality opinion) (“[I]t does
not lie with this Court to say when a congressional committee should be deemed to have acquired
sufficient information for its legislative purposes.”).
Third, for the Court to find a subpoena invalid based on an improper purpose, the subpoena
must be “solely” for a prohibited purpose, such as exposing for exposure’s sake. See Mazars USA,
140 S. Ct. at 2032. Mixed purposes do not defeat an investigative act, provided one of those
purposes is a valid legislative one. See, e.g., McGrain, 273 U.S. at 180; Sinclair v. United States,
279 U.S. 263, 295 (1929), overruled on other grounds by United States v. Gaudin, 515 U.S. 506(1995). And an otherwise valid legislative purpose is not nullified by an improper motive. See,
28
e.g., Barenblatt, 360 U.S. at 132–33. Thus, when attempting to “impeach” the purpose of a legis-
lative inquiry as invalid, the challenger faces a “formidable bar.” See Comm. on Ways & Means,
2021 WL 5906031, at *5. Even “‘an impressive array of evidence’” suggesting an illegitimate
purpose may not suffice. See id. at *6 (quoting Watkins, 354 U.S. at 199–200 & n.32).
Fourth, when a litigant whose rights have been “jeopardized” by a committee’s failure to
follow its own rules challenges that failure, the Court’s determination of what the rules require is
constrained. See Metzenbaum, 675 F.2d at 1287. The Court may intervene if doing so “requires
no resolution of ambiguities.” See United States v. Durenberger, 48 F.3d 1239, 1244 (D.C. Cir.
1995). But a “sufficiently ambiguous House Rule is non-justiciable.” See United States v. Ros-
tenkowski, 59 F.3d 1291, 1306 (D.C. Cir. 1995). In that case, judicial interpretation “runs the risk”
of the Court telling the House what its own rules require, thereby “intruding into the sphere of
influence reserved” to it under the Rulemaking Clause of Article I of the Constitution. See id.Further complicating such a challenge, “the Court must give great weight to the [House’s] present
construction of its own rules,” particularly when that construction was arrived at before the “events
in controversy.” See United States v. Smith, 286 U.S. 6, 33 (1932); cf. Barker v. Conroy, 921 F.3d
1118, 1130 (D.C. Cir. 2019) (giving the House’s interpretation of its own rules controlling effect
even though the interpretation was adopted after the plaintiff sued about the rule).
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 sub-
poena 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 Commu-
nications Act. See ECF No. 6 ¶¶ 74–142; ECF No. 8-1 at 17–31.
29
1. The Select Committee Is Properly Authorized
The RNC’s broadest challenge is to the legitimacy of the Select Committee itself, which it
attacks as an indirect way to attack the validity of the subpoena. See ECF No. 6 ¶¶ 116–24; ECF
No. 8-1 at 28–30. The RNC argues that the Select Committee lacks the proper authorization to
wield investigative power on behalf of the House on three grounds: the Select Committee lacks
the required number of members; it contains none of the five Republican members recommended
by Minority Leader McCarthy; and it lacks a “ranking minority member” with whom Chairman
Thompson had to consult before issuing the subpoena.
First, the RNC argues that the Select Committee lacks authorization because it has only
nine members, when its authorizing resolution states that Speaker Pelosi “shall” appoint thirteen
members. See H.R. Res. 503, § 2(a). To the RNC, “shall” is mandatory, meaning the Select Com-
mittee is improperly constituted with only nine members. It’s not an unreasonable position. But
for a few reasons, especially given the House’s own reading of the authorizing resolution, the
Court cannot agree.
Starting with the resolution’s text, as this Court observed in upholding former President
Trump’s right to name his own acting Director of the Consumer Financial Protection Bureau, “alt-
hough ‘shall’ is usually understood as mandatory,” the word is “a semantic mess” and is sometimes
used “to mean ‘should,’ ‘will,’ or even ‘may.’” English v. Trump, 279 F. Supp. 3d 307, 323
(D.D.C. 2018) (cleaned up). Thus, that the resolution states that Speaker Pelosi “shall” appoint
thirteen members to the Select Committee is not conclusive as to whether thirteen members are
required for it to lawfully operate. Especially given this mess, the Court must give “great weight”
to the House’s own reading of § 2(a) before this lawsuit was filed. See Smith, 286 U.S. at 33l;
Barker, 921 F.3d at 1130. And the House views the Select Committee to be duly constituted and
30
empowered to act under its authorizing resolution, even though the Select Committee has only
nine members. This understanding is reflected by the House’s adoption of the Select Committee’s
recommendations to find witnesses in contempt of Congress for their refusals to comply with Se-
lect Committee subpoenas. 10 See 167 Cong. Rec. H5748, H5768–69 (Oct. 21, 2021) (Steve Ban-
non); 167 Cong. Rec. H7667, H7794, H7814–15 (Dec. 14, 2021) (Mark Meadows). If the Court
reads § 2(a)’s “shall” as mandatory, it would be “interpret[ing] the Rule differently than . . . the
[House] itself” and “would effectively be making the Rules—a power that the Rulemaking Clause
reserves to each House alone.” See Rostenkowski, 59 F.3d at 1306–07.
Second, the RNC contends that the Select Committee lacks authorization to issue the sub-
poena because it does not include the Republican members Minority Leader McCarthy recom-
mended to Speaker Pelosi to serve on the Select Committee. This argument also is based on § 2(a)
of the authorizing resolution, which states that Speaker Pelosi “shall appoint” five Select Commit-
tee members “after consultation with the minority leader.” Again, the Court cannot agree.
To the extent this argument rehashes the parties’ dispute over the word “shall,” for the
reasons already explained, the Court cannot find that the Select Committee is improperly consti-
tuted on this basis. And if it is a dispute over the authorizing resolution’s use of the word “con-
sultation,” for similar reasons, the Court cannot side with the RNC. To “consult” with Minority
Leader McCarthy, all Speaker Pelosi had to do was ask for his “advice or opinion.” See Consul-
tation, Black’s Law Dictionary (11th ed. 2019). There is no dispute that she did. That she did not
10
In addition, Speaker Pelosi—the person responsible for implementing § 2(a) and thus whose
“contemporaneous exposition” is entitled to “[g]reat weight” as a general matter, see Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 418 (1821); Edwards’ Lessee v. Darby, 25 U.S. (12 Wheat.) 206,
210 (1827)—decided to appoint only one more member to the Select Committee after Minority
Leader McCarthy withdrew his recommended appointees.
31
accept all his recommendations, and that Minority Leader McCarthy then withdrew all his recom-
mendations, does not mean that Speaker Pelosi failed to consult with him. And again, the House’s
implicit determination that the Select Committee is duly authorized without the Republican mem-
bers Minority Leader McCarthy recommended all but precludes the Court from holding otherwise.
See Rostenkowski, 59 F.3d at 1306–07.
Third, the RNC says that the Select Committee could not have lawfully issued the subpoena
because, under § 5(c)(6)(A) of the authorizing resolution, Chairman Thompson had to consult with
the “ranking minority member” before issuing it—and the RNC contends that the Select Commit-
tee does not have a “ranking minority member.” Section 5(c)(6)(A) of the resolution states that,
after “consultation with the ranking minority member,” Chairman Thompson “may order the tak-
ing of depositions, including pursuant to subpoena, by a Member or counsel of the Select Com-
mittee.” House Defendants acknowledge that this rule governs the subpoena, but they argue that
Representative Cheney qualifies as the Select Committee’s “ranking minority member” for con-
sultation purposes. See ECF No. 17 at 25; ECF No. 24 at 93–94. The RNC does not dispute that
Chairman Thompson consulted with Representative Cheney before issuing the subpoena. See ECF
No. 17 at 25.
A “ranking member” is “[t]he most senior (though not necessarily the longest-serving)
member of the minority party on a committee.” See “Ranking Member,” Glossary of Legislative
Terms, congress.gov (last accessed Apr. 11, 2022). Representative Cheney is a Republican mem-
ber of the House. See, e.g., ECF No. 6 ¶¶ 14, 72. She was appointed to the Select Committee
before Representative Kinzinger, and she meets the requirements to be considered the “most senior
. . . member” of the Republican Party on the Select Committee. True, for whatever reason the
Select Committee did not give her—or anyone else—the formal title “ranking member.” But to
32
the extent there is any uncertainty about whether she fits the bill, on this record the Court must
defer to the Select Committee’s decision to treat Representative Cheney as the ranking minority
member for consultation purposes. See Rostenkowski, 59 F.3d at 1306.
2. The Subpoena Has a Valid Legislative Purpose
Next, the RNC contends that the subpoena is unenforceable because it does not advance a
valid legislative purpose. See ECF No. 6 ¶¶ 103–15; ECF No. 8-1 at 26–28. This argument, like
the previous one, has several distinct aspects. The RNC argues that House Defendants have failed
to adequately identify the valid legislative purpose supporting the subpoena; that their “purported
legislative purpose” is a pretext for engaging in “ad-hoc law enforcement,” “harass[ing]” a “polit-
ical adversary,” and “expos[ing] for the sake of exposure”; and that the subpoena is overbroad and
thus exceeds the bounds of any possible legitimate legislative purpose. These arguments echo
those that the Court rejected when applying the Speech or Debate Clause to dismiss House De-
fendants. For similar reasons, even with the Clause removed from the equation, the Court must
do so again.
First, the RNC contends that House Defendants have not adequately identified a valid leg-
islative purpose in the records being subpoenaed, faulting them for not recommending any “draft
legislation related to the topics provided” or explaining how these topics would “further any valid
legislative end.” ECF No. 6 ¶¶ 108–09; see also ECF No. 8-1 at 27.
Again, the Court’s review here must be “deferential.” Comm. on Ways & Means, 2021
WL 5906031, at *12. To be sure, in any context, the “more detailed and substantial the evidence
of Congress’s legislative purpose” for issuing an investigative subpoena, “the better.” Cf. Mazars
USA, 140 S. Ct. at 2035–36 (identifying “special considerations” when Congress subpoenas the
President’s personal information). Even so, the Select Committee did not have to “declare in
33
advance” what legislation it may recommend based on the materials at issue to show that the sub-
poena has a “legitimate object.” See In re Chapman, 166 U.S. at 670; see also Eastland, 421 U.S.
at 509; McGrain, 273 U.S. at 172; Trump v. Thompson, No. 21-cv-2769 (TSC), 2021 WL 5218398,
at *12 (D.D.C. Nov. 9, 2021). After all, the Select Committee may investigate “what if any legis-
lation [is] necessary or desirable” to avert a future January 6-style attack. See Sinclair, 279 U.S.
at 294–95 (emphasis added). And “Congress’s decision whether, and if so how, to legislate in a
particular area will necessarily depend on what information it discovers in the course of an inves-
tigation” as “members educate themselves on the relevant facts and circumstances.” Trump v.
Mazars USA, LLP, 940 F.3d 710, 731 (D.C. Cir. 2019), vacated on other grounds by Mazars USA,
140 S. Ct. 2019.
The subpoena’s valid legislative purpose is apparent enough to sustain it against this chal-
lenge. See In re Chapman, 166 U.S. at 670. The House instructed the Select Committee to “in-
vestigate and report upon the facts, circumstances, and causes relating to” the January 6 attack,
including “the influencing factors that fomented” it. H.R. Res. 503, § 3(1). And it empowered the
Select Committee to investigate “how technology . . . may have factored into the motivation” for
the attack, id. § 4(a)(1)(B), including by examining the roles of any relevant “public and private”
entities, id. § 4(a)(1)(C). The Select Committee is tasked with reporting to the House its “findings,
conclusions, and recommendations” for legislative remedial measures. See H.R. Res. 503,
§ 4(a)(3), (c). Thus, it is “hardly disputable” that the Select Committee may investigate the causes
of the January 6 attack, and its “broad knowledge of the causes” of that day will make it “better
able to fulfill its responsibility” to make well-informed recommendations to the House. See Sand-
ers, 463 F.2d at 900.
According to the Select Committee, its investigation and public reporting suggest that
34
claims that the 2020 presidential election was fraudulent or stolen motivated some who partici-
pated in the attack, and emails sent by the RNC and the Trump campaign using Salesforce’s plat-
form spread those claims. See ECF No. 6-1 at 4–5. Salesforce itself acknowledged that, because
“there remain[ed] a risk of politically incited violence across the country,” it had taken “action to
prevent [the RNC’s] use of our services in any way that could lead to violence.” See id. at 5.
Through the subpoena, House Defendants seek, and Salesforce has agreed to provide, information
about whether and how successfully the RNC used Salesforce’s platform to spread these claims
about the 2020 presidential election. See id. at 5–6. Given all the above, the Court finds that the
subpoena for the materials at issue has a valid legislative purpose. 11
Second, the RNC argues that the Select Committee’s alleged legislative purpose is a pretext
for impermissible law-enforcement, political-harassment, and exposing-for-exposure’s-sake pur-
poses. To support this claim, the RNC points out that the Select Committee’s investigation is
being led by two former federal prosecutors and that the Select Committee has “more than a dozen
former federal prosecutors on staff.” See ECF No. 6 ¶ 54. It also identifies three tweets from
Select Committee members: one from Chairman Thompson on the first anniversary of the January
6 attack reflecting that “[w]e have been working diligently to bring justice” to “the tragedy of Jan.
6”; one from Representative Schiff in November 2021 saying that “[w]e will expose those
11
Even if the Select Committee had to provide examples of specific legislation for which the
RNC’s subpoenaed information would be relevant—and again, it does not—examples are not hard
to find. See, e.g., Trump, 2021 WL 5218398, at *12. One example of legislation that could be had
for which this information would be relevant would be a bill amending the Electoral Count Act, 3
U.S.C. § 15, to move the date of Congress’s electoral-college certification closer to election day.
See 167 Cong. Rec. H5759 (Oct. 21, 2021); see also U.S. Const. amend. XII; Trump, 20 F.4th at
42. The subpoenaed information would be relevant to that valid legislative end because, as House
Defendants argued, it might suggest that the RNC’s email campaigns had a “cumulative effect”
between election day and January 6 that led to the attack. See ECF No. 24 at 88–89.
35
responsible for Jan 6” and “[n]o one is above the law”; and one from Representative Raskin in
December 2021 observing that “[e]xec. privilege doesn’t cover criminal misconduct, like insur-
rections or coups.” Id. ¶¶ 57–59, 114. The RNC also references three public statements from
Select Committee members: one from Representative Kinzinger about how “[w]e’ll be able to
have out on the public record anything [the] Justice Department needs maybe in . . . pursuit of [a
crime]”; one from Chairman Thompson about how “we are pursuing evidence” leading to “former
President Trump or anyone else”; and one from Representative Raskin about how neither attorney-
client nor executive privilege “operate[s] to shield participants in a crime from an investigation
into a crime.” Id. ¶¶ 56–57, 59. The RNC further points out “public reporting” that has “widely
confirmed” that “the Select Committee’s investigation aims to produce criminal referrals.” Id.
¶ 62.
This evidence falls short of the RNC’s goal in several ways. To begin with, these staffing
decisions and statements are not nearly enough to overcome the “formidable bar” the RNC faces
to “impeach” the Select Committee’s otherwise valid legislative purpose. See Comm. on Ways &
Means, 2021 WL 5906031, at *5. For example, in Watkins, the Supreme Court described an “im-
pressive array of evidence” from several formal sources suggesting that the “sole purpose” of the
inquiry at issue was to expose for exposure’s sake. 354 U.S. at 199 & n.32. Even so, the Court
found that the “solution” to the “problem” before it was “not to be found in testing the motives of
committee members.” Id. at 200. The RNC’s evidence of an illegitimate purpose here is substan-
tially less “impressive” than the evidence in Watkins. Thus, it does not come close to showing that
the Select Committee’s proffered legislative purpose is merely a pretext.
In addition, even assuming this evidence shows that the subpoena is serving an additional,
illegitimate, quasi-law-enforcement purpose—perhaps a reasonable conclusion to draw—
36
precedent dictates that this purpose “takes nothing from the lawful object” the Select Committee
is also pursuing. See McGrain, 273 U.S. at 180. Similarly, even if this evidence reflects an unto-
ward motive of certain Select Committee members, that too is irrelevant given the Select Commit-
tee’s valid legislative purpose. So long as “Congress acts in pursuance of its constitutional power,
the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of
that power.” Barenblatt, 360 U.S. at 132; see also Watkins, 354 U.S. at 200.
Third, the RNC argues that the subpoena is overbroad because it seeks information “unre-
lated to any potential legislation.” See ECF No. 6 ¶ 126; see also id. ¶¶ 106, 110–11; ECF No. 8-
1 at 28. This argument focuses on two general categories of information. The first category is any
personally identifiable information of RNC donors, volunteers, and email recipients. See ECF No.
6 ¶¶ 1, 5, 7–8, 39, 81–84, 94, 110. But as discussed above, the Select Committee is not demanding,
and Salesforce is not preparing to produce, any such information. The second category is what the
RNC describes as confidential information about its “operations and activity wholly unrelated” to
the January 6 attack that reflects its email-outreach strategy. ECF No. 21 at 12; see also ECF No.
6 ¶¶ 5, 7, 9, 32, 88, 110, 129. For example, the parties agree that the materials at issue include
data about emails sent in connection with elections besides the 2020 presidential election and
emails sent for the RNC to extend holiday greetings to its supporters. See ECF No. 24 at 44, 75.
In assessing whether these records exceed the Select Committee’s valid legislative purpose,
the Court’s role is limited to asking whether they “are ‘not plainly incompetent or irrelevant to any
lawful purpose’” of the Select Committee “‘in the discharge of its duties.’” Packwood, 845 F.
Supp. at 20–21 (brackets omitted) (quoting McPhaul, 364 U.S. at 381); see also Eastland, 421
U.S. at 509 (recognizing that the “nature of the investigative function . . . is that it takes the
37
searchers up some ‘blind alleys’”). The Court cannot say that the Select Committee has exceeded
the “wide boundaries” it must be afforded here. See Barsky, 167 F.2d at 245.
For starters, the Select Committee is hardly on an unconstrained “fishing expedition[]” into
the RNC’s records. See Sinclair, 279 U.S. at 294. It has requested information only relating to
emails sent from November 3, 2020 to January 6, 2021. That two-month window is plainly rele-
vant to its investigation into the causes of the January 6 attack. Granted, some of those emails will
be “unrelated to the presidential election, post-election recount, or litigation efforts.” ECF No. 21
at 12. But some of those emails may have included claims that the presidential election was fraud-
ulent or stolen. And though some may not, the Select Committee’s “collection of facts may cover
a wide field” and can include “matters that may have an indirect bearing on the subject” being
investigated. See Bryan, 72 F. Supp. at 61. As House Defendants explain, this information will
give the Select Committee the context to understand how much attention and interest was gener-
ated by emails that asserted the election was fraudulent or stolen. ECF No. 24 at 75. By providing
this “context,” this information will “‘materially aid’” the Select Committee’s valid legislative
purpose. See Comm. on Ways & Means, 2021 WL 5906031, at *11 (brackets omitted) (quoting
McGrain, 273 U.S. at 177).
3. The Subpoena Does Not Violate the First Amendment
The RNC next argues that the subpoena violates its First Amendment associational rights
by compelling the disclosure of the RNC’s confidential, strategic information. 12 See ECF No. 6
¶¶ 74–90; ECF No. 8 at 1; ECF No. 8-1 at 9, 17–18. This argument has some force, especially
12
The RNC also asserted that the subpoena violates the First Amendment because it compels dis-
closure of the personally identifiable information of its donors, volunteers, and email recipients.
See, e.g., ECF No. 6 ¶¶ 83–84; ECF No. 21 at 14. But again, the Select Committee is not demand-
ing, and Salesforce is not preparing to produce, any such information.
38
given that the Select Committee is dominated by members of the Democratic Party, whose candi-
dates compete with RNC-backed candidates in almost every federal election. But, as explained
below, the Court ultimately concludes that the subpoena does not violate the First Amendment, in
part because of the limited materials at issue.
The RNC has the right to “organize itself” and “conduct its affairs” free from government
interference as integral to the freedom of association guaranteed to it by the First Amendment. See
Eu v. S.F. Cnty. Dem. Cent. Comm., 489 U.S. 214, 230 (1989). By extension, the RNC also has a
First Amendment interest in keeping confidential its internal, strategic materials pertaining to how
it organizes itself and conducts its affairs. See AFL-CIO, 333 F.3d at 176–78. And compelled
disclosure of such materials can violate those First Amendment rights in some cases. See id. For
example, in AFL-CIO, the D.C. Circuit held that a Federal Election Commission regulation that
compelled “public disclosure” of political organizations’ “confidential internal materials” of a stra-
tegic nature “intrude[d]” on the organizations’ First Amendment associational rights because that
disclosure would “directly frustrate the organizations’ ability to pursue their political goals effec-
tively by revealing to their opponents ‘activities, strategies and tactics’” that the organizations had
pursued and would “likely follow in the future.” See id. at 177.
The RNC relies on AFL-CIO as the basis for its First Amendment claim arising out of the
threatened disclosure of its confidential, strategic information about digital outreach to its donors,
volunteers, and email recipients. See, e.g., ECF No. 6 ¶¶ 75–78; ECF No. 8-1 at 13, 18–19; ECF
No. 21 at 13–14; ECF No. 24 at 57, 91, 130. But AFL-CIO is not on all fours with this case because
that decision focused on the “extensive interference with political groups’ internal operations and
with their effectiveness” flowing from compelled “public disclosure” of such information. See
333 F.3d at 176–78. And ordinarily, “release of information to the Congress does not constitute
39
‘public disclosure.’” See Exxon Corp., 589 F.2d at 589. The RNC suggests this is of no moment
because, in Americans for Prosperity Foundation v. Bonta, the Supreme Court emphasized that
“disclosure requirements” can infringe associational rights “even if there is no disclosure to the
general public.” 141 S. Ct. 2373, 2388 (2021) (cleaned up). Fair enough. But Bonta is not entirely
on point, either, because the Court there considered a challenge to a California regulation requiring
tax-exempt organizations to disclose to the state the names and addresses of certain donors—in-
formation, unlike that here, that could directly chill individual associational rights. See id. at 2380,
2387–88.
All that said, the Court is persuaded that the RNC has a cognizable First Amendment claim
here. The materials at issue include “confidential internal materials” relating to how the RNC used
Salesforce’s platform to engage its donors, volunteers, and email recipients, as well as certain
communications between the RNC and Salesforce, in which the RNC has a First Amendment in-
terest. See AFL-CIO, 333 F.3d at 176–77. And disclosure of these materials by Salesforce to the
Select Committee should be considered more like disclosure to the public than merely disclosure
to the government. See id. The Court reaches this conclusion for two reasons.
First, House Defendants have not represented that they will keep this information confi-
dential. Cf. Bean LLC, 291 F. Supp. 3d at 47 (finding that the likelihood of public disclosure was
“quite low” where the committee’s rules “require[d] subpoenaed materials . . . to be kept confi-
dential” and there was insufficient “evidence to suggest” that the committee would not “follow its
own rules”). To be sure, the Court “must presume” that the Select Committee “will exercise [its]
powers responsibly and with due regard for the [RNC’s] rights” in handling the information, see
Exxon Corp., 589 F.2d at 589—a point about which House Defendants repeatedly remind the
Court, see ECF No. 24 at 90, 98, 134. But House Defendants’ failure to reassure the Court on that
40
point looms large. And as the RNC points out, according to at least one newspaper article, the
Select Committee—or at least persons associated with it—have shared with the media “infor-
mation regarding private communications” the Select Committee obtained. See ECF No. 8-1 at
35. Second, perhaps more importantly, given the unusual circumstances here, the RNC’s infor-
mation need not be leaked to the media to impact its First Amendment interests. By providing the
information to the Select Committee, dominated by members of the Democratic Party, Salesforce
would be directly handing the RNC’s information to those in a position to use it to “frustrate the
[RNC’s] ability to pursue [its] political goals.” AFL-CIO, 333 F.3d at 177. This Court “would
have to be that ‘blind’ Court” not to recognize these political realities. See United States v. Rumely,
345 U.S. 41, 44 (1953).
The next question is what test applies to determine whether the subpoena survives the
RNC’s First Amendment challenge. The RNC argues that the Court should review this claim
under “exacting scrutiny” as refined in Bonta, according to which “there must be a substantial
relation between the disclosure requirement and a sufficiently important governmental interest,”
with the required disclosure being “narrowly tailored to the government’s asserted interest.” See
141 S. Ct. at 2383 (cleaned up). House Defendants assert that the governing standard is a more
general “balancing” of “the competing private and public interests at stake in the particular cir-
cumstances shown” without a narrow-tailoring requirement. See Barenblatt, 360 U.S. at 126.
As a practical matter, the Court does not see much if any difference between the approaches
the parties suggest. Setting aside the narrow-tailoring issue, the Barenblatt Court recognized that
NAACP v. Alabama, 357 U.S. 449 (1959), applied the “the same principles” it applied in “balanc-
ing” the interests at stake. See 360 U.S. at 127. And the Bonta plurality recognized that the “ex-
acting scrutiny” standard, referred to as such in Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per
41
curiam), had its origins in NAACP v. Alabama as well. See Bonta, 141 S. Ct. at 2382–83. These
tests, then, appear to be different ways of saying much the same thing. See, e.g., AFL-CIO, 333
F.3d at 176 (“When facing a constitutional challenge to a disclosure requirement, courts . . . bal-
ance the burdens imposed on individuals and associations against the significance of the govern-
ment interest in disclosure . . . .” (citing Buckley, 424 U.S. at 64–68)).
Less clear is whether the narrow-tailoring requirement applies when a legislative subpoena
is being challenged on First Amendment grounds, and the parties have identified no case in which
a court addressed this question. See ECF No. 17 at 37; ECF No. 21 at 15. The Court assumes that
the narrow-tailoring requirement applies here, “[w]here exacting scrutiny applies.” See Bonta,
141 S. Ct. at 2384. Even so, applying that requirement is not straightforward because the “contours
of the narrow-tailoring inquiry . . . must be calibrated to fit the distinct issues raised” in the context
of each case. See Grutter v. Bollinger, 539 U.S. 306, 333–34 (2003). And the context here is not
a law or regulation of general applicability, but a legislative investigation in which Congress gen-
erally “has broad discretion in determining . . . the scope and extent of the inquiry,” see Bryan, 72
F. Supp. at 61; see also Eastland, 421 U.S. at 509, and a subpoena for which the responsive docu-
ments have been narrowed by negotiation.
As it turns out, the standards governing legislative investigations fairly track the compo-
nents of narrow tailoring as they might apply to such investigations, providing the contours for
what a “fit that is . . . reasonable” looks like in this unusual context. See Bonta, 141 S. Ct. at 2384
(quoting McCutcheon v. FEC, 572 U.S. 185, 218 (2014) (plurality opinion)). To start, the records
demanded must be “reasonably relevant” to the investigation. See McPhaul, 364 U.S. at 381–82
(cleaned up); cf. Bonta, 141 S. Ct. at 2386 (finding a lack of tailoring where the information at
issue was basically irrelevant to the purpose for disclosure). Related to that, the investigative
42
demand should not be “substantially” overbroad, meaning that a “substantial portion” of the infor-
mation sought “does not serve to advance” the investigative “goals.” See Ward v. Rock Against
Racism, 491 U.S. 781, 799 (1989) (footnote omitted); see also Bonta, 141 S. Ct. at 2386 (finding
a “dramatic mismatch” that rendered the regulation insufficiently tailored). Also, the subpoena
must not cause an “unnecessary and unreasonable dissipation of precious constitutional free-
doms.” See Watkins, 354 U.S. at 204. An “unnecessary” burden is imposed when, for instance,
there are “multiple alternative mechanisms” for obtaining the information without imposing the
burden. See Bonta, 141 S. Ct. at 2385, 2387. Finally, while assessing the adequacy of the tailoring,
the Court must be “loath to second-guess the Government’s judgment” about the relevance of the
information demanded and the necessity of the burdens imposed. See Bd. of Trs. of State Univ. of
N.Y. v. Fox, 492 U.S. 469, 478 (1989). That is, even in the face of a First Amendment challenge,
the Court may not “lightly interfer[e]” with an investigative act, see Sanders, 463 F.2d at 902–03,
and “every reasonable indulgence of legality must be accorded” it, see Watkins, 354 U.S. at 204.
To sum up, then, the Court applies exacting scrutiny to the RNC’s First Amendment chal-
lenge to the subpoena, and it considers as part of that analysis whether the scope of the Select
Committee’s demand is narrowly tailored to its interest. See Bonta, 141 S. Ct. at 2383. For the
subpoena to withstand exacting scrutiny, the “strength” of the Select Committee’s interest “must
reflect the seriousness of the actual burden” imposed by the subpoena on the RNC’s First Amend-
ment rights. See id. at 2383, 2387. And for the subpoena to pass the narrow-tailoring requirement,
the materials demanded must be “reasonably relevant” to the Select Committee’s inquiry and not
substantially overbroad, the burdens imposed must not be “unnecessary,” and the Court must re-
main reticent to “second-guess” the Select Committee’s judgment about these points. As
43
explained below, the Court finds that the subpoena, as narrowed by negotiations that clarified the
materials at issue, does not violate the First Amendment.
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 safe-
guard 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 pres-
idential 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 well-
informed recommendations to the House for remedial measures to avert a future attack. See Sand-
ers, 463 F.2d at 900. In sum, the materials demanded have particular “value” to the Select Com-
mittee “in the exercise of legislative duty,” and its interest in this information is strong. See Bar-
enblatt v. United States, 240 F.2d 875, 884 (D.C. Cir. 1957), vacated and remanded, 354 U.S. 93044
(1957) (per curiam), adhered to by 252 F.2d 129 (D.C. Cir. 1958) (en banc), aff’d, 360 U.S. 109(1959).
Second, the strength of the Select Committee’s interest here reflects the seriousness of the
“actual burden” the subpoena imposes on the RNC’s First Amendment rights. See Bonta, 141 S.
Ct. at 2383. The Court considers “in the concrete” both the materials at issue and the RNC’s
alleged burden from their disclosure. See Barenblatt, 360 U.S. at 112. As the RNC has put it, the
confidential internal materials at issue will shed light on what goes into making its email cam-
paigns successful—such as how the RNC targets its email campaigns; the “cadence” or timing
strategy of its email transmissions; and information showing the efficacy of those strategies, con-
sisting mostly of performance-related data (for example, how many recipients opened a given
email), and potentially including communications with Salesforce in which such information is
referenced or discussed. See, e.g., ECF No. 6 ¶¶ 7, 32, 88, 110; ECF No. 8-1 at 14; ECF No. 21
at 12–13, 16; ECF No. 24 at 61–67. The RNC fears that disclosure of this information will “frus-
trate” its “ability to pursue political goals such as winning elections and advocating for its poli-
cies.” ECF No. 6 ¶ 88; see also ECF No. 8-1 at 13. Like many of its others, these are not unrea-
sonable arguments.
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 col-
lected 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
45
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. See Bonta, 141 S. Ct. at 2383, 2386–87. The RNC’s alleged burden is
the subpoena’s interference with the RNC’s “ability to pursue political goals such as winning elec-
tions and advocating for its policies.” See ECF No. 6 ¶ 88; see also AFL-CIO, 333 F.3d at 177(recognizing that compelled public disclosure of strategic information can violate the First Amend-
ment when the disclosure causes “extensive interference” with political organizations’ “effective-
ness”). But because this alleged burden does not outweigh the Select Committee’s interest, the
“balance . . . must be struck in favor of the latter.” See Barenblatt, 360 U.S. at 134.
The Court strikes this balance mainly because disclosure of the material at issue is not
nearly as burdensome for the RNC as disclosure of the “detailed descriptions of training programs,
member mobilization campaigns, polling data, and state-by-state strategies” was for the AFL-CIO
and Democratic National Committee in AFL-CIO. See 333 F.3d at 176–77. Public disclosure of
that kind of information would obviously “seriously interfere[]” with a political organization’s
13
Similarly, the RNC has suggested a First Amendment harm from disclosure because someone
could use the information to create a “mosaic” of RNC supporters’ “political activities and beliefs.”
See, e.g., ECF No. 21 at 14. But again, the personally identifiable information that would provide
almost the entire basis for this revealing “mosaic” is not at risk of disclosure.
46
“effectiveness.” See id. at 178. The Court cannot reach the same conclusion about the information
here, at least on the record before it. Nothing suggests that the Select Committee is demanding,
or that Salesforce is preparing to produce, internal RNC memoranda laying out its digital strategy.
The RNC’s representations on this front appear to assume that if all the material it feared was at
stake were disclosed—including, for example, granular personal information about its donors,
such as their giving history—the information “could” be used to create a “mosaic” of its email-
outreach strategy that its political rivals could then use to better compete with the RNC in the
digital arena. See ECF No. 8-1 at 21; ECF No. 6 ¶ 88; ECF No. 8-2 ¶¶ 18, 24–25. No doubt.
But—again, to return to one example—the RNC’s donors’ personal information and giving histo-
ries are not being demanded or produced. True, some of the internal names of the RNC’s email
campaigns could reveal some of its strategic decisions, such as the general audiences to which the
RNC targets certain communications. And obviously, information that shows which email cam-
paigns attracted more attention, and which attracted less, has some strategic value. But on the
record here, whatever competitive harm may come to the RNC from disclosure of the actual ma-
terial at issue is too “logically attenuated” and “speculative” to defeat the Select Committee’s
weighty interest. See United States v. Salvation Army S. Territory, No. 13-mc-341 (ABJ/JMF),
2013 WL 2632639, at *3 (D.D.C. June 12, 2013); see also Buckley, 424 U.S. at 71–72 & n.88; cf.
AFL-CIO, 333 F.3d at 177 (rejecting a per se rule that any “action that places a political association
at a disadvantage relative to its opponents violates the First Amendment”).
Third, the Select Committee’s demand is narrowly tailored to its interest. As the Court has
already explained, the 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. See ECF No. 8-3 at 4–6. And the material being demanded is not overbroad
47
because even information about those email campaigns the RNC argues are irrelevant will provide
helpful “context” that will “‘materially aid’” the Select Committee. See Comm. on Ways & Means,
2021 WL 5906031, at *11 (brackets omitted) (quoting McGrain, 273 U.S. at 177); see also ECF
No. 24 at 43–44, 75; ECF No. 8-1 at 14, 21–22. As for the necessity of the burden, the RNC has
not argued that the subpoena is insufficiently tailored because of viable “alternative mechanisms”
for the Select Committee to get the information it seeks. See Bonta, 141 S. Ct. at 2385, 2387; see
also ECF No. 8-1 at 17, 19–22; ECF No. 21 at 13, 16. Thus, the Court will not “second-guess”
the Select Committee’s “judgment” as to its chosen means. See Fox, 492 U.S. at 478. For these
reasons, the Select Committee’s demand is “in proportion to the interest served”—that is, it is
narrowly tailored. See Bonta, 141 S. Ct. at 2384 (quoting McCutcheon, 572 U.S. at 218). 14
4. The Subpoena Does Not Violate the Fourth Amendment
The RNC also argues that the subpoena violates the Fourth Amendment’s prohibition on
unreasonable searches and seizures because its breadth “exceeds any lawfully authorized purpose”
of the Select Committee. See ECF No. 6 ¶¶ 91–102; ECF No. 8-1 at 22–26. The parties dispute
14
The RNC also argues that it should have a right to review documents Salesforce is preparing to
produce to the Select Committee as responsive to the third, fourth, and fifth categories outlined in
the subpoena before they are produced to the Select Committee because the RNC cannot be sure
that its First Amendment-protected material is not included in these documents. See ECF No. 8-1
at 22. As to categories three and four, the RNC has provided no specific basis for the Court to find
that such First Amendment-protected material may exist in responsive documents, nor has it ex-
plained why the Court should strike the balance any differently than it already has here as to any
such material. See id.; ECF No. 21-1 ¶¶ 13–16; ECF No. 24 at 19. Moreover, Salesforce’s repre-
sentations about the documents it is withholding as privileged and those it is preparing to produce
underscore the lack of any reasonable basis to conclude that such protected material is at issue.
See ECF No. 24 at 119–20. As for the fifth category, the RNC also has provided no specific basis
for the Court to find that such First Amendment-protected communications may exist despite pre-
sumably having its own copies of them from @gop.com email addresses. See generally ECF No.
8-2; ECF No. 21-1. And again, the Court has no reason to suspect it would strike the balance any
differently as to any such First Amendment-protected material present.
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whether the RNC has a Fourth Amendment interest in the Salesforce-held information that the
subpoena demands. Compare ECF No. 17 at 39, with ECF No. 21 at 18–22. Even assuming the
RNC retains such an interest, the subpoena does not violate the RNC’s Fourth Amendment rights.
The leading Supreme Court case on Fourth Amendment challenges to legislative subpoe-
nas (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 com-
mittee 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 rea-
sonably 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 Con-
gress’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
49
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.
5. The Subpoena Is Not Overbroad and Unduly Burdensome
In its complaint, the RNC asserted a standalone claim that the subpoena is “excessively
broad and unduly burdensome.” See ECF No. 6 ¶¶ 125–33. This claim raises the same issues that
the Court has already addressed. See id. Confirming its redundancy, the RNC did not advance
this claim in its preliminary injunction motion despite devoting sections of that motion to each of
its five other claims. See ECF No. 8 at 1–3; No. 8-1 at 17–31. Thus, this claim fails for all the
reasons already explained above.
6. The RNC’s Stored Communications Act Claim Is Moot
Finally, the RNC brings a claim under the Stored Communications Act, 18 U.S.C. § 2701et seq., because the subpoena “appears to seek the actual content of communications” covered by
the Act. See ECF No. 6 ¶¶ 134–42. But a “federal court does not have subject matter jurisdiction
over claims that are moot.” Amin v. Nyack Sch. of Adult & Distance Educ., 710 F. Supp. 2d 80,
15
The RNC also argues that the Select Committee’s failure to put in place “safeguards” such as a
“taint team or analogous filter” for its protected information renders the subpoena unreasonable
under the Fourth Amendment. See ECF No. 8-1 at 24–26. For this, it relies on Packwood, in
which Senator Robert Packwood raised a Fourth Amendment challenge to the Senate Ethics Com-
mittee’s subpoena for his “personal diaries.” See 845 F. Supp. at 21–22. The court, aware of the
“peculiarly sensitive nature of personal diaries,” factored into its Fourth Amendment reasonable-
ness analysis the “protocol” the committee planned to follow in examining these diaries, consisting
of “a focused, temporally limited review of a fraction of the diaries of most recent origin with
many passages masked” that would take place “in the presence of Senator Packwood’s counsel,”
after which the diaries would be “returned immediately to Senator Packwood.” Id. at 22. No such
similarly sensitive personal—and potentially irrelevant—information is at issue here. Thus, the
court’s determination that the presence of such protocols in Packwood helped support the reason-
ableness of the search there does not mean they are required here. Of course, “whether a search
and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts
and circumstances of each case.” See Cooper v. California, 386 U.S. 58, 59 (1967).
50
82 (D.D.C. 2010). And a “claim for relief that has already been realized is moot.” Id. That is the
case here.
As the RNC noted in its complaint, Salesforce objected to the subpoena “to the extent it
[sought] the disclosure of the contents of electronic communications maintained on behalf of the
RNC in violation of the Stored Communications Act.” See ECF No. 6 ¶¶ 44, 137. But after “con-
versations” with Salesforce, the Select Committee confirmed that it was not seeking communica-
tions content covered by the Act. See ECF No. 15-1 at 3 & n.1; see also ECF No. 17 at 49. House
Defendants reaffirmed to the Court that they were “not seeking any materials that would be cov-
ered” by the Act. See ECF No. 24 at 100. And Salesforce has since informed the Court that it is
not preparing to produce any material covered by the Act. See ECF No. 25 at 2, 4. In other words,
the RNC has already realized its claim for relief to prevent Salesforce from producing matter cov-
ered by the Stored Communications Act to the Select Committee. Thus, this claim is moot.
V. Administrative Injunction
Before concluding, the Court recognizes that the subpoena’s return date is currently Mon-
day, May 2, 2022. Thus, the RNC has little time to move for an injunction pending appeal. See
Fed. R. Civ. P. 62(d), (g); Fed. R. App. P. 8(a)(2). And all the RNC’s claims could become moot
before it can do so. That is so because, once Salesforce discloses the materials at issue to the Select
Committee, “the separation of powers, including the Speech or Debate Clause, bars this [C]ourt
from ordering” the Select Committee to return or destroy the subpoenaed documents. See Senate
Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080, 1086 (D.C. Cir. 2017).
Under the All Writs Act, the Court “may issue all writs necessary or appropriate in aid” of
its jurisdiction and “agreeable to the usages and principles of law.” See 28 U.S.C. § 1651(a). The
All Wits Act is a “residual source of authority” by which the Court may “issue writs . . . not
51
otherwise covered by statute” when “the need arises.” Pa. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34, 43 (1985); see also Adams v. United States ex rel. McCann, 317 U.S. 269, 272 (1942).
The authority conferred by the Act includes issuing injunctive relief. See, e.g., Trump v. Comm.
on Ways & Means, 415 F. Supp. 3d 38, 44, 50 (D.D.C. 2019); ITT Cmty. Dev. Corp. v. Barton,
569 F.2d 1351, 1359 n.19 (5th Cir. 1978). One circumstance when the “need arises” to issue such
relief is when it is necessary to “preserve the availability of meaningful judicial review.” See
Astrazeneca Pharms. LP v. Burwell, 197 F. Supp. 3d 53, 56 (D.D.C. 2016); see also TRAC v. FCC,
750 F.2d 70, 76 (D.C. Cir. 1984). Thus, injunctive relief under the All Writs Act “may be appro-
priate when a claim is not yet ripe for judicial review but may both ripen and become moot almost
instantaneously, thereby depriving the court of jurisdiction to decide the claim.” Comm. on Ways
& Means, 415 F. Supp. 3d at 44.
Here, the RNC’s ability to seek an injunction pending appeal could ripen and then very
quickly become moot. Thus, to preserve the availability of meaningful judicial review, the Court
will enter an “administrative injunction” to ensure the RNC has time to seek an injunction pending
appeal. See Trump v. Thompson, No. 21-5254, 2021 WL 5239098, at *1 (D.C. Cir. Nov. 11, 2021)
(per curiam). The administrative injunction will dissolve automatically on May 5, 2022 if the RNC
has not moved for an injunction pending appeal by then. If the RNC does so move by then, the
administrative injunction will dissolve automatically upon the resolution of that motion.
VI. Conclusion
For all these reasons, the Court will dismiss all the claims against House Defendants, dis-
miss as moot the Stored Communications Act claim against Salesforce, enter judgment against the
52
RNC on the rest of its claims against Salesforce, and enter an administrative injunction to give the
RNC time to seek an injunction pending appeal. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 1, 2022
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