Some Schocking Information About Congressional Records

Former congressman Aaron Schock, under investigation for financial misconduct while in office, has been in various disputes with the Justice Department about documents prosecutors are seeking from him. One of those disputes involves the somewhat peculiar legal status of documents from a Member’s personal congressional office. So the blog having been on hiatus for a couple of months, I will ease back into things with a discussion of this obscure topic.

You may be aware, unless you happen to be former Secretary of State Hillary Clinton, that the records of federal agencies and the executive branch generally are subject to extensive regulation and control by various statutes, including the Federal Records Act, the Freedom of Information Act and the Presidential Records Act. You may or may not be surprised to know, however, that few if any of these laws apply to Congress. As the House Rules Committee observed in this 1988 report, the Privacy Act and FOIA explicitly exempt Congress from their coverage, and “[n]o statute comparable to the Presidential Recordings and Materials Preservation Act has ever been enacted with respect to congressional records.” Hmm, I wonder how that happened.

The Rules Committee proposed a resolution establishing standards for archiving and public availability of House records, making clear its view that this was a matter for the House alone to determine:

It is the committee’s unequivocal intent that the resolution is an exercise of the rulemaking power of the House, and that the judgment of the House with respect to its records is an exercise of its absolute, and unreviewable, constitutional prerogatives. In exercising judgments under the rule, Members, officers and employees of the House may find some of the experiences under FOIA illuminating, but the committee determines all statutes—and precedents under those laws—wholly inapplicable to congressional records.

But even though congressional records may not be regulated by statute, the institutional records of each house are clearly public records governed by the rules and regulations established by that body. Thus, House Rule VII, which largely derives from the resolution proposed by the Rules Committee in 1988, prescribes how the records of House committees and officers are to be archived and ultimately made available to researchers and members of the general public.

Rule VII, however, does not govern the papers of Members acting in their individual representative capacities, such as the records generated by their personal congressional offices. Historically, the use and disposition of these papers have not been regulated by the legislative body. As the 1988 report explains, “[a]lthough Congress has never specifically so provided by rule or law, it is relatively clear that Members’ papers have been regarded as their personal property. . . .”

It should be noted that this treatment of Members’ papers, though it may seem odd today, is consistent with how presidential papers were regarded prior to Nixon’s resignation and the enactment of the Presidential Recordings and Materials Preservation Act. See Nixon v. Administrator of GSA, 433 U.S. 425, 533 (1977) (Burger, C.J., dissenting) (“under our constitutional traditions, Presidential papers have been, for more than 180 years, deemed by the Congress to belong to the President.”). As a practical matter, the most significant implication of this principle relates to how a Member’s papers are treated when he leaves Congress. Departing Members can choose to take their papers with them, donate them to a library or academic institution, or simply discard them. The Clerk will prepare the papers for shipping and send them to wherever the Member directs.

This is all very inside baseball and generally of little interest to anyone outside of Congress. On rare occasions, however, the question of who owns a Member’s papers becomes relevant to whether he can assert a Fifth Amendment “act of production” privilege in response to a subpoena for those documents.

The act of production doctrine allows an individual who is subpoenaed to produce documents to assert that the very act of producing the documents would be testimonial and incriminating. This might be the case, for example, where admitting that one possessed the documents in question would itself be incriminating. (By contrast, the Fifth Amendment privilege does not generally apply to the contents of documents so that whether the documents contain incriminating information is irrelevant for these purposes).

The act of production privilege, however, does not apply to the documents of “collective entities” such as corporations and government agencies because such entities do not have the right to assert the Fifth Amendment. The collective entity doctrine means that a subpoena seeking production of public records from a government official or agency ordinarily is not subject to an act of production privilege objection.

Yet in the case of a subpoena for the documents of a congressman’s personal office, it could be argued (and in fact has been argued) that the collective entity doctrine is inapplicable because the documents do not belong to a collective entity but to the congressman personally. For example, it is my understanding that one reason the Justice Department sought a search warrant for Congressman Jefferson’s office was that his attorneys were asserting the act of production privilege to avoid compliance with a subpoena.

Prosecutors tend to be incredulous when they hear a Member of Congress may assert the act of production privilege with respect to public records. This is no doubt partly because they are surprised to learn that the House considers the records to be the personal property of the Member. Beyond this, however, they are indignant that a Member of Congress would assert a Fifth Amendment privilege with respect to documents created and maintained at taxpayer expense for the use and benefit of public officials carrying out official business.

Indignation aside, I tend to agree with the prosecution perspective on this. It is true that the House regards the documents as belonging to Congressman X, rather than to the “Office of Congressman X.” But in the context of the act of production privilege this seems to me to elevate form over substance.  For many purposes, the “Office of Congressman X” functions like a collective entity and its documents are treated as if they belong to that entity. For example, under the Congressional Accountability Act the proper defendant in an employment action is the congressional office, rather than the member individually, and the documents would be treated (I believe) as belonging to the office for purposes of the litigation. See generally Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006). Moreover, the House does not treat a Member’s papers as purely personal for other purposes, such as responding to a subpoena. See House Rule VIII.

When a sitting Member receives a subpoena for documents from his personal congressional office, any Fifth Amendment issue can be obviated by having the chief of staff or another staffer act as the records custodian for purposes of identifying and producing responsive documents. This, rather than asserting an act of production privilege, seems to me to be the best way to deal with any testimonial aspect of responding to such a subpoena.

But suppose a subpoena is directed to a former member, such as Schock? Here the argument for recognizing an act of production gets both stronger and weaker. It is stronger with respect to any documents that the former member has taken with him and which remain in his custody and control. These documents are now fully his personal property and can be commingled with other personal papers. There is no longer the possibility of appointing a staffer as records custodian. Thus, the assertion of an act of production privilege would seem to be reasonable.

On the other hand, there would appear to be little reason at all to recognize an act of production privilege with respect to documents that have been left behind in the custody of the Clerk. This is so regardless of whether the documents are in the Clerk’s custody because her staff is organizing them for archiving or shipment to the departed member, because the former member abandoned them, because electronic copies exist in computer systems belonging to the House or the Clerk (as probably happens with some frequency) or because, in the case of a former member like Schock who leaves before his term is expired, the Clerk is supervising a temporary “Office of the 18^th Congressional District of Illinois” pursuant to House Rule II (2)(i)(1). In any of these events the Clerk or her designee may comply with a document subpoena for the former member’s records without implicating the act of production privilege.

Most of the pleadings in Schock’s case are under seal, but from what I glean from published reports and this brief filed by the government, it appears that the government issued subpoenas to Schock and his office before his resignation, and Schock asserted an act of production privilege (though perhaps not until he had already left office). Initially, the court rejected the act of production privilege, holding that “the congressional office was a collective entity” and therefore the privilege was inapplicable. However, after the House Bipartisan Legal Advisory Group filed an amicus brief on Schock’s behalf, the court reversed its ruling, but gave the government an opportunity to move for reconsideration. The government did so, citing “the importance of the issue to this litigation and the unprecedented consequence of recognizing an act-of-production privilege to Schock and therefore all current and future Members of Congress as to their publicly-funded, non-private, public or official Congressional records.”

Unfortunately, the sealing of the subsequent pleadings leaves it unclear what, if anything, happened with the motion for reconsideration. It is also unclear whether anyone made the distinction between current and former members suggested above. Schock did apparently agree that the government could obtain responsive documents from the Clerk, but his lawyers claimed that the government refused this offer and insisted that Schock obtain the documents himself and then produce them.  If this is so, it seems to me that the government’s position is unreasonable, but it is hard to make any firm judgments without more information.

Perhaps we will eventually get a ruling from the district court or the Seventh Circuit on this novel issue.