If a member of Congress (e.g. Representative Schiff) subpoenas phone records of people (which is allowed) and releases them directly (in a report) or indirectly (leaked to press). Does this violate any (e.g. privacy) US Laws? Or, if there is law for a court subpoena to keep records private (e.g. a Grand Jury), did/could Congress exempt itself from these laws?

  • The Speech and Debate Clause only covers actions taken as a member, so the answer will depend on how the information is released. If it is part of a committee report, or entered into the record, the member is covered. That is why Mike Gravel read parts of the Pentagon Papers into the Record. He is also covered if he is engaged in "legislative activity." Otherwise, he is not covered (ie, Gravel was not covered when he leaked the Pentagon Papers to Beacon Press, since leaking is not a legislative activity.) – Just a guy Dec 7 '19 at 20:51

The power to issue subpoenas is created by rule, so while an individual Congressman cannot currently issue a subpoena (instead a committee does), the rule can be changed. So it would be possible for a Congressman to issue a subpoena. He could release information obtained via the subpoena, and is immunized from legal repercussions by the Speech and Debate Clause of the Constitution. However, there is no immunity against action by Congress, so he could be disciplined under House or Senate rules. Disclosure might be a violation of House rule VII 3.(b)(2), or committee rules established under Rule X(11)(f) or XI 3.(a)(4), or other House rules or committee rules, which can be modified by majority vote. The House has no power to imprison its members, but they can be censured, or expelled by vote of 2/3 of the members (Art. 1 sec 5 of the Constitution).

  • But under current rules, is there anything wrong with the behavior? – George White Dec 7 '19 at 19:10
  • I think so: rule VII 3.(b)(2). But the House has the sole power to make that determination. – user6726 Dec 7 '19 at 19:19
  • @user6726 Rule VII applies to House Records that have been archived, so it probably does not apply to this situation. – Just a guy Dec 7 '19 at 20:37
  • You're right, the rules are more narrowly focused, and there no general rule. I think we need more information about the hypothesized situation to be able to guess if there is a rule at present. – user6726 Dec 7 '19 at 20:57

If the heart of your question is, under the current rules, has anything been done wrong, I would say no. Other than the special case of a grand jury, our system allows/requires public dissemination of information regarding prosecutions.

Another answer refers to House Rule VII 3.(b)(2) - it is

2) An investigative record that contains personal data relating to a specific living person (the disclosure of which would be an unwarranted invasion of personal privacy), an administrative record relating to personnel, or a record relating to a hearing that was closed under clause 2(g)(2) of rule XI shall be made available if it has been in existence for 50 years.

My reading of that is if the personal information is not made public as required by default in the immediately preceding section, it must be made available in 50 years. It does not require secrecy of anything for 50 years. It is rule about disclose, not a rule about not disclosing.

  • Plus, Rule VII is about the archiving of House Records. It is about what happens when the Clerk sends records to the Archivist for storage. Section 3 starts: "3(a) The Clerk shall authorize the Archivist..." – Just a guy Dec 7 '19 at 20:33
  • And public availability of those archived records 3. (a) The Clerk shall authorize the Archivist to make records delivered under clause 2 available for public use, subject to clause 4(b) and any order of the House. – George White Dec 7 '19 at 20:38
  • Is the question about archived records? I assumed it is about stuff obtained in this session, and thus not in the Archive. – Just a guy Dec 7 '19 at 20:43
  • @Just a guy - correct - I conflated something that must be made public at the end of a session with something being made public now. Still no rule has been pointed to about the materials received in the investigation needing to be kept from the public. The only thing mentioned, Rule VII 3.(b)(2), is irrelevant to that. – George White Dec 7 '19 at 23:51

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