Wrangling over Jan. 6 footage could force open congressional records

By | August 18, 2021

A new lawsuit is demanding that Congress release a vast trove of Capitol riot surveillance video currently the subject of legal tussles involving judges, prosecutors, defense attorneys and the press.

Past efforts to use the courts to force disclosure of congressional records like the videos have gotten little traction, but the Jan. 6-related case seizes on an opinion a D.C. Circuit judge issued in June. The new legal fight has the potential to set a new precedent for what kinds of information Congress must disclose, and when — and is squarely aimed at upending decades of law that shielded the institution from public scrutiny.

In her June opinion, Judge Karen LeCraft Henderson concluded that House and Senate records could sometimes be subject to a centuries-old “common-law right” of public access. The conservative watchdog group Judicial Watch had filed a suit seeking copies of subpoenas the House Intelligence Committee issued during the first impeachment investigation into former President Donald Trump.

The appeals court ruled that the Constitution’s “speech or debate” clause precluded the group’s suit, but Henderson — an appointee of former President George H. W. Bush — said in a solo concurrence that in the right case it might be possible to force Congress to disclose some of its records.

“Simply put, the Speech or Debate Clause should not bar disclosure of public records subject to the common law right of access in all circumstances,” she wrote.

The suit filed early Wednesday in U.S. District Court in Washington is aimed at exploring whether Henderson’s relatively robust view of the common-law right is shared by any of her D.C. Circuit colleagues. The case was brought by the public-interest law firm National Security Counselors on behalf of Shawn Musgrave, a California-based freelance journalist.

“The public’s right to know what its government is up to has been around as long as our nation, but until recently that right has generally only been exercised against the executive and judicial branches,” said attorney Kel McClanahan, who is representing Musgrave. “This doesn’t change the fact that there are numerous public records being currently withheld by the legislative branch which should be widely available, especially now that some of the failings on 1/6 can be fairly traced back to the lack of transparency and oversight.”

In addition to the video footage captured by security cameras on Jan. 6, the new suit seeks information about a series of reports Congress instructed House and Senate officials to prepare, including a catalog of unreleased Capitol Police inspector general reviews dealing with security vulnerabilities and other issues.

The suit also presses longstanding fights to bring more transparency to Congress, by demanding manuals containing House and Senate rules for handling classified information and details on a process the Capitol Police were supposed to set up for release of their records in a fashion similar to the Freedom of Information Act, which applies only to Executive Branch agencies.

The video footage at the heart of the new lawsuit has already triggered disputes in several of the more than 500 prosecutions stemming from the Capitol riot. Defense attorneys have claimed that too much video has been designated as “highly sensitive” by prosecutors and that prosecutors have approved release of incriminating video clips during bail hearings, while omitting others that paint the defendants in a more favorable light. Prosecutors deny that, but have opposed some disclosures at the request of the Capitol Police, who contend that a mass, public release of the surveillance video could reveal security weaknesses as well as indications of which areas are beyond the view of cameras.

Meanwhile, Chief Judge Beryl Howell of the federal district court in Washington is pushing prosecutors to put videos on the court record and potentially in the public domain even when Capitol riot defendants are pleading guilty.

On Sunday, Howell ordered prosecutors to give the court access to video clips described in a court filing made in preparation for an expected guilty plea from Tennessee resident Eric Torrens.

Prosecutors made nine videos available to the court Monday, but continued to oppose release of the five that come from closed-circuit Capitol surveillance cameras. Howell wasn’t satisfied with that response and demanded “a more fulsome explanation” by Wednesday of why the video can’t be made public.

Although records of federal government agencies are accessible through the Freedom of Information Act and judges have found most court records to be open under the common law and, sometimes, the First Amendment, the status of Congressional records is murkier.

Henderson noted in her opinion suggestions in various cases that some of Congress’s records are covered by a common-law presumption of access, but judges have generally been loath to dictate to Congress what must be made public.

In a letter to McClanahan last month, House General Counsel Douglas Letter said: “While the D.C. Circuit has generally stated that the common law right of access applies to all three branches of government, we are unaware of any case holding the right [applicable] to Congress much less one requiring the production of Congressional records.”

A Senate attorney, Thomas Caballero, sent McClanahan a similar letter Tuesday. Caballero said the Senate has the power to decide which of its records to make public. He also said that in the case of the Senate Security Manual “any public interest in disclosure would be outweighed by the significant national security interests implicated by its release.”

Letter also argued that the House records sought are “absolutely protected” by the speech or debate clause, that the House’s security manual only amounts to “advice, guidance and direction,” and that none of the records record any official decision of the House or its committees.

McClanahan said some of Letter’s contentions are inaccurate, including the claims that the House manual on classified information handling and access is just advice. “It is a set of rules. It is not guidance,” McClanahan said.

Transparency advocates and some executive branch officials have long complained that Congress has largely escaped the transparency mandates it imposes on federal agencies through the Freedom of Information Act and other access statutes. Some expenditure, lobbying and personal financial disclosure records are routinely made public, but there is no real mechanism for members of the public to force disclosure of congressional records.

Although House and Senate attorneys have argued that any mechanism for outsiders to force disclosure of congressional records is constitutionally suspect, in nearly every U.S. state public records laws apply at least in part to the work of state legislatures.

McClanahan and Musgrave also filed a separate suit Wednesday seeking public release of the unabridged version Senate Intelligence Committee’s report on interrogation methods used by the Central Intelligence Agency during the war on terror. After much wrangling with the CIA, the Senate panel released a 525-page executive summary of the review, widely known as the “torture report” because of its contention that waterboarding and other techniques the spy agency used against so-called high-value detainees amounted to torture.

However, the roughly 6,000-page, extended version of the report has never been made public.

Two senators who have at times served as intelligence committee chair, Dianne Feinstein (D-Calif.) and Richard Burr (R-N.C.), have jockeyed over the full report for years with Feinstein pressing for release and Burr opposing it. Burr even demanded that executive branch agencies return their copies.

Before leaving office, former President Barack Obama considered taking steps that could have led to release of a sanitized version of the full report, but decided simply to make it part of his presidential records, delaying release for five years or more.

The D.C. Circuit ruled in 2016 that the report was still under the control of Congress, despite being in the possession at that time of several executive branch agencies.

As a legislative record, the report was deemed beyond the reach of FOIA requesters, but the new suit seeks to leverage Henderson’s recent opinion to seek release of the report under the common-law right to public records she suggested extends to Congress.