Once again, Judge Christian N. (“Speedy”) Weiler referees a discovery face-off between IRS and Carl B. Barney, Docket No. 5310-22, filed 5/8/24, with IRS looking for privilege wherever they can find it. You’ll find some backstory in my blogpost “A Retrieved Deposition,” 3/5/24. And if you’re a fan of unscrambling frittatas, Judge Speedy Weiler reprises Carl’s give-and-go with his for-profit colleges, and why Carl wants to bail from his Section 453 installment sale election, Order, at pp. 2-3.

As part of the bail, Carl filed three (count ’em, three) 1040-Xs, one for each year at issue. But before IRS could bounce them and hit Carl with a SNOD, IRS had to get an OK from the Joint Committee on Taxation (JCT), Congress’ uber-guru on taxation.

Much of the Order deals with IRS’ responses to Carl’s trusty attorneys’ last round of objections to what IRS claimed was privileged, which is the deliberative privilege of the Executive Branch and the client-attorney commonlaw privilege. Judge Speedy Weiler has the Cliff Notes in the Order, at p. 5.

But of course Carl’s trusty attorneys demand production of the Joint Committee stuff, to which IRS ripostes with US Const. Art. I, §6, cl. 1: “[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.”

“The privilege is rooted in the separation-of-powers doctrine. Its ‘”central role” . . . is to “prevent intimidation of legislators by the Executive and accountability before a hostile judiciary.’” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502 (1975). The Supreme Court has held that the Speech and Debate Clause provides ‘protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.’ Id. Legislators acting within the sphere of legitimate legislative activity ‘should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).

“In determining whether particular activities other than literal speech or debate fall within the ‘legitimate legislative sphere’ we are to look at whether the activities took place ‘in a session of the House by one of its members in relation to the business before it.’ See Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). To that end, we must determine whether the activities are ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.’ Gravel v. United States, 408 U.S. 606, 625 (1972).” Order, at p. 6.

Judge Speedy Weiler’s biographical sketch doesn’t state whether he was on law review at Loyola of New Orleans, but if he wasn’t, he should have been. 

IRS flunks most of the privilege claims.

“There also remains the significant issue of whether the asserted speech and debate privilege extends beyond members of Congress or delegated congressional staff to include staff of the JCT. While we refrain from deciding the issue (which appears to be one of first impression), we are not inclined to extend the privilege beyond a member of Congress or his or her delegated congressional staff. Gravel, 408 U.S. at 625–28. In any event, respondent’s possession of the JCT documents may constitute a waiver of the congressional privilege. For example, while respondent has withheld a letter from JCT Chief of Staff Thomas Barthold to former IRS Commissioner Charles Rettig, it is unclear whether Mr. Barthold sent the letter at the behest of a committee member and why this letter remains privileged as it was sent to a member of the executive branch.” Order, at p. 8.

Anyway, IRS’ privilege log is “…incomplete or at a minimum too vague to determine whether a privilege applies. We do not accept respondent’s contention that ‘providing any additional information about the documents would reveal information subject to the asserted privilege;’ since we fail to see how disclosing the sender, recipient, date, or subject matter would otherwise disclose the underlying information within the document.” Order, at p. 8.

So Carl’s motion is granted in part, denied in part, and anyway without prejudice. Emphasis by the Court, and cheers from discovery geeks everywhere.