Lawsuit uses Jan. 6 to challenge secrecy of Congress

Lingering questions about whether the Capitol riot could have been prevented are breathing new life into an effort to make the legislative branch more transparent.

Critics argue that Congress’s decision to exempt itself from public records laws has fostered a bureaucracy that is far less transparent and accountable than the rest of the government.

When Congress passed the Freedom of Information Act (FOIA) in 1964, requiring government agencies to hand over many documents to the public upon request, lawmakers chose not to apply the law to the legislative branch or its various supporting agencies.

As a result, offices like the U.S. Capitol Police (USCP), critics say, are not subject to the same kind of public scrutiny as similar organizations and often resist efforts at greater transparency.

“You can FOIA the FBI, you can FOIA the CIA, the D.C. Metropolitan Police are now required to disclose some information,” said Daniel Schuman, the policy director for Demand Progress and a longtime transparency advocate. “But the Capitol Police are a black box.”

Freelance journalist Shawn Musgrave last week filed a federal lawsuit against the Capitol Police and several other legislative branch offices for surveillance footage of the riot and records related to the Capitol complex’s security measures.

If those records were in the hands of just about any other government agency, journalists and members of the public would be able to request them and officials would have to sort through what could be released and what should be kept under wraps. But, to the frustration of watchdogs and members of the media, Congress and the agencies within the legislative branch are not covered by public records laws like FOIA.

The lack of disclosure requirements for the legislative branch has led to varying degrees of transparency among the congressional support offices. Critics say that the USCP is among the most opaque agencies within the legislative branch, often resisting efforts from the public to obtain internal records that most other law enforcement agencies would be required to hand over upon request.

“There are regular inspector general reports to the operations of the Capitol Police. They’re not available to the public. They’re not available to most members of Congress. Very few people can see those reports,” Schuman said. “Which means that the inspector general can say whatever they want but there’s no pressure exerted to fix the problem, except whatever exists internally, which has to deal with very strong countervailing pressure.”

“So the accountability mechanisms don’t work, the problems keep coming up, but nobody is alerted to it,” he added.

After Jan. 6, some government transparency advocates have argued that the storming of the Capitol by an angry mob could have been mitigated or even averted by greater public oversight that could identify flaws and push for fixes.

“The fact that there were multiple inspector general reports about security vulnerabilities that nobody did anything about, that only came out because we had an armed insurrection in the capitol,” said Kel McClanahan, a lecturer at the George Washington University law school who is representing Musgrave in the two lawsuits. “But our perspective is, had the Capitol Police been treated like any other law enforcement agency in the country, people would have discovered this a long time ago, and probably gotten annoyed enough about it to fix it and that these long-standing problems would not be long-standing problems.”

The USCP had been facing pressure to be more transparent before Jan. 6.

Last year, the House Appropriations Committee urged the agency to open itself up to allow disclosure of inspector general reports and other internal documents.

“While the USCP is not subject to the Freedom of Information Act … the Committee encourages the USCP to develop a policy and procedure for the sharing of information that follows the spirit of the Freedom of Information Act,” the committee said in a report accompanying a funding bill. “This policy should be consistent with, and not interfere with, USCP’s primary function of protecting the Congress.”

In June, the FOIA Advisory Committee, a panel convened by the National Archives in 2014, also recommended Congress enact rules or pass legislation that would apply FOIA requirements to its support offices.

Thomas Susman, who authored the advisory committee’s recommendation and was a key legislative staffer when Congress amended FOIA in 1974, said that lawmakers chose not to apply the law to themselves largely out of self interest.

“There’s really not a principled reason for Congress’ not applying the same level of transparency to those offices and agencies performing the same kind of functions that the executive branch agencies and offices do that are fully covered by congressional mandate under the Freedom of Information Act,” Susman said.

Musgrave’s lawyers argue in the lawsuit against the USCP, as well as a similar one against the Senate Intelligence Committee seeking the still mostly-redacted 2014 Torture Report, that even though Congress is not covered by FOIA, it is still subject to a “common law right of access” to its records.

The full scope of that common-law right has not been settled by the courts, but the lawsuits filed last week are aiming to convince federal judges that it should apply to the various components of the legislative branch.

In June, a three-judge panel for the D.C. Circuit Court of Appeals upheld a district court judge’s dismissal of a lawsuit filed by the conservative group Judicial Watch seeking subpoenas issued by the House Intelligence Committee as part of the impeachment inquiry against former President Donald Trump. The panel ruled that the Constitution’s Speech or Debate Clause prohibited such lawsuits against Congress.

But one of the judges, Karen LeCraft Henderson, wrote a concurring opinion in which she said, “I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing.”

McClanahan said he saw Henderson’s opinion as an opening to raise the issues around legislative branch transparency in court.

“She’s basically inviting somebody to bring a case that would pit an insanely high degree of public interest against an insanely weak speech or debate immunity argument. And we have just the case,” McClanahan said.

McClanahan, the executive director of the public interest law firm National Security Counselors, said that the type of transparency and oversight that he’s seeking from the USCP would make it more accountable as an institution.

“I’m not going to say that January 6 happened because of lack of transparency. That would be insane,” he said. “But it definitely would have played out differently if there were some transparency on the Hill and especially in the Capitol Police. And so this is not aimed at figuring out where to place the blame, this is aimed at making sure it doesn’t happen again.”

Updated 1:27 p.m.