Unconstitutional?? Continuing Resolution Includes Section For House Offices to Quash Third Party Subpoenas of “House Data” – Disregards Separation of Powers Doctrine

When control of the US House shifted after the 2022 midterms in favor of Republicans, there was not much that could be accomplished in terms of conservative legislation given the Democrat control that remained in both the Senate and the White House.  However, that didn’t stop the House investigations into numerous issues within the federal government.  From the January 6th Committee to the Hunter Biden Laptop to mass censorship collusion between the government and Big Tech, and most importantly, the overall weaponization of the Department of Justice against a political rival, the 118th Congress was never going to be much more than “strongly worded letters” and “kick the can down the road” legislation.

However, that all changed following the 2024 Presidential Election when President Trump and the MAGA-led GOP, as admitted by Mitt Romney this week, won not only an electoral landslide and the popular vote, but also maintained control of the House, and most notably, regained the Senate by a 53-47 majority.  The “mandate” from the American people has been made clear.

Given that mandate, it is simply mind-boggling why Speaker Mike Johnson would introduce a Continuing Resolution (CR) that contained a section essentially mandating a court to “quash or modify any legal process directed to the provider for a House office if compliance…would require the disclosure of House data of the House office.”

Section 605 Treatment of Electronic Services Provided for House Offices does just that.

Guys this section of the CR is insane.

Why is this included in a spending bill? Why are they trying to make this a thing at all?

WHAT ARE THE HIDING? https://t.co/LHIc5dgK7l pic.twitter.com/ckQuAGNCvV

— Jon Herold (@patel_patriot) December 18, 2024

The relevant sections read:

Notwithstanding any other provision of law or rule of civil or criminal procedure, the Office of the Chief Administrative Officer, any officer, employee, or agent of the Office of the Chief Administrative Officer, and any provider for a House office that is providing services to or used by a House office shall not be barred, through operation of any court order or any statutory provision, from notifying the House office of any legal process seeking disclosure of House data of the House office that is transmitted, processed, or stored (whether temporarily or otherwise) through the use of an electronic system established, maintained, or operated, or the use of electronic services provided, in whole or in part by the Office of the Chief Administrative Officer, the officer, employee, or agent of the Office of the Chief Administrative Officer, or the provider for a House office.

This section seemingly permits the Chief Administrative Office (CAO) or any “electronic communications service” (think: Gmail) to notify a “House office” that their data has been subpoenaed.  This isn’t unusual, unless the subpoena disallows it, such as an accompanying gag order.  However, “shall not be barred, through operation of any court order or any statutory provision, from notifying the House office” seems to be a direct conflict with the Constitution’s separation of powers doctrine.

The next section becomes even more concerning.  It reads:

MOTIONS TO QUASH OR MODIFY.—Upon a motion made promptly by a House office or provider for a House office, a court of competent jurisdiction shall quash or modify any legal process directed to the provider for a House office if compliance with the legal process would require the disclosure of House data of the House office.

Not only does this section of the CR permit “electronic communications services” to notify a House office if they are subject of a subpoena, even if that subpoena has an accompanying gag order, it then allows the House office to motion to quash the subpoena and, shockingly, mandates that a “court of competent jurisdiction shall quash or modify” the subpoena.

This CR is putting in a section that allows them to “quash or modify any legal process…if compliance with the legal process would require the disclosure of House data…”

House data = “any electronic mail or other electronic or data communication”

They’re also applying… https://t.co/YHt9nIOXuH pic.twitter.com/iIaOhrxN9n

— Jon Herold (@patel_patriot) December 18, 2024

This would essentially give the House office exclusive jurisdiction over their records.  If the House office says something does not exist, the trail would essentially go “cold” despite the possibility of an “electronic communications service” potentially having relevant records.  In terms of the investigations that the House has begun under the 118th Congress, and will likely continue into the 119th, any investigative powers to obtain records and data is essentially now beholden to the word of the House office that the data is being sought from.

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