A lawsuit filed in D.C. federal court is demanding Congress disclose thousands of hours of Jan. 6 Capitol riot surveillance videos that are the crux of a mounting legal battle between prosecutors and the press.
The suit, filed Wednesday by the nonprofit law firm National Security Counselors on behalf of freelance journalist Shawn Musgrave, could have major effects on laws governing what information the legislature is required to make public.
The lawsuit states that Mr. Musgrave’s request for the videos was denied by the U.S. Capitol Police (USCP) because the police claim the footage is not a public record subject to the common law right of access to public records.
The California-based journalist, however, argues the videos are indeed public records subject to the law because the surveillance tapes are being used to prosecute those who participated in the riot.
The USCP’s interest in keeping them secret, he said, is outweighed by the public’s interest in their disclosure because the video footage is “likely to help shine a light on how congressional security works and how it may be improved.”
Kel McClanahan, who represents Mr. Musgrave, told The Washington Times on Thursday that it could “be the first case to conclusively apply the common law right of access to congressional records, as opposed to merely stating that it exists in some hypothetical form.”
“Once a concrete example has been established, then people can start working out how far it extends, but until that happens, legislative branch offices are going to continue to act as though an impenetrable cone of silence sits over Capitol Hill,” Mr. McClanahan said.
The 17-page complaint points to a concurring opinion from a District appellate court judge in a case earlier this year brought by Judicial Watch, which sought subpoenas from the House Intelligence Committee’s impeachment inquiry into then-President Donald Trump.
Judge Karen LeCraft Henderson agreed that the common law right did not apply to the subpoenas because Judicial Watch did not adequately argue that its interest in public disclosure outweighs the protection afforded by the speech or debate clause in the Constitution.
She noted, however, that the clause did not clearly give “absolute protection from disclosure — including protection from a common law right of access claim,” because if it did “the district court’s ’public records’ analysis would have been unnecessary.”
“Nevertheless, the fundamental importance of the common law right of access to a democratic state … cautions against the categorical extension of Speech or Debate Clause immunity to the [common law] right,” the judge wrote.
Mr. Musgrave describes himself in the suit as a “representative of the news media” whose work has been featured in publications including Politico, the Boston Globe and the Intercept.
An online search by The Washington Times shows he has written about legal issues including federal prosecutors accused of misconduct, a Massachusetts state-run drug lab scandal and a court case seeking personnel records of a Massachusetts medical examiner, among other topics.
Mr. Musgrave is also suing for the release of additional records that he had requested, which were either denied or have gone unanswered.
The other requests include documents about an information-sharing policy that the House told USCP to develop, as well as the most recent edition of the House Security Policy Manual. He also wants a copy of a report, requested last year by the House, on which USCP investigator general reports produced over the previous three years could have been made public.
“These records requests focused on the insurrection of 6 January 2021, the lack of USCP transparency surrounding the insurrection and more generally, and the lack of transparency from the House Sergeant at Arms and the Office of Senate Security on matters pertaining to Congressional treatment of sensitive information,” the lawsuit states.
Defendants named in the suit include the USCP, the Office of the House Sergeant at Arms, the Office of the Secretary of the Senate and their top officials.
• Emily Zantow can be reached at ezantow@washingtontimes.com.
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