In a recent opinion by Magistrate Judge Sarah Netburn (S.D.N.Y.) in Nunes v. NBCUniversal Media, LLC, the Court raised discovery issues that may be unprecedented. Due to insufficient argument from the involved parties, the Court has asked for further discussion on certain aspects.
One key point of interest is the ownership of the Speech or Debate privilege claimed by the House Permanent Selection Committee on Intelligence (“HPSCI”). If the privilege belongs solely to a Member of Congress and not the committee itself, does the Member waive the privilege by filing a civil lawsuit on protected matters? Moreover, if filing a lawsuit does not constitute a complete waiver, can a Member selectively decide which parts of the privilege to waive?
The case revolves around a statement made on The Rachel Maddow Show by NBCU regarding Devin Nunes and the Derkach package. Nunes, a former Member of Congress, disputed the claim and stated that he had turned the package over to the FBI upon receiving it.
One central issue is whether Nunes indeed handed the Derkach package to the FBI. During a deposition of Nunes’s former Director of Communications, Jacob Langer, counsel for the HPSCI repeatedly used the Speech or Debate privilege to object to questions on this topic.
The Speech or Debate Clause provides legislators with immunity for actions within the legislative sphere and safeguards them from answering inquiries related to legislative acts. The purpose is to shield legislators from external pressures and legal accountability.
The privilege can only be invoked by the Member or their aide. A Member can waive the privilege, but it requires explicit and clear renunciation. The ongoing dispute questions who holds the privilege and whether Nunes has relinquished it by initiating this lawsuit.
Additional arguments are needed to clarify the privilege’s scope, the party holding the privilege, potential waivers by Nunes, and other relevant issues. The Court awaits further briefing from the involved parties and HPSCI to address these essential matters in the case.