United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. #23]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
LLC, doing business as Fusion GPS ("Fusion" or
"plaintiff), applies to this Court for an order
enjoining the enforcement of a Congressional subpoena
("the Subpoena") that requires the production of
certain financial records from Fusion's bank, Defendant
Bank ("the Bank"). The Subpoena, issued by the
Permanent Select Committee on Intelligence of the U.S. House
of Representatives ("the Committee"), seeks records
of Fusion's financial transactions with certain clients
and contractors. The Committee issued the Subpoena in
conjunction with its investigation into Russian active
measures-- i.e., Russian conduct, direct and
indirect in nature, calculated to advance Russia's
political agenda-directed at the 2016 U.S. presidential
election ("the 2016 Presidential election"). The
Subpoena followed revelations in the press that Fusion had a
role in compiling a series of memos-together commonly known
as "the Trump Dossier" (also referred to herein as
"the Dossier")-that alleges ties between President
Donald Trump and the Kremlin.
the Subpoena was issued to Defendant Bank-not to
Fusion-Fusion filed a motion for a temporary restraining
order and preliminary injunction, seeking to enjoin the Bank
from complying with the Subpoena on the ground that it is
overly broad, unauthorized, and requests records of
Fusion's business transactions that are irrelevant to the
Committee's investigative inquiry. While the Committee
and Fusion were able to negotiate a narrowing of the
thousands of records responsive to the Subpoena, they
unfortunately could not agree as to seventy of those records.
As to these, Fusion asserts that the Subpoena violates its
First Amendment rights to speech and association, as well as
its rights under certain financial privacy laws. This matter
is now fully briefed and ripe for resolution. Upon
consideration of the pleadings, oral argument, and the entire
record herein, Fusion's Renewed Motion for a Temporary
Restraining Order and Preliminary Injunction is DENIED.
House Permanent Select Committee on Intelligence is a
standing committee of the United States House of
Representatives, charged with oversight of the intelligence
community and intelligence-related activities and programs of
the United States Government. See H.'R. Res.
658, 95th Cong. (1977). Pursuant to those oversight
responsibilities, the Committee is currently conducting an
investigation into Russian interference with the 2016
Presidential election. See Press Release, U.S. House
of Representatives Permanent Select Coram, on Intelligence,
Intelligence Committee Chairman, Ranking Member Establish
Parameters for Russia Investigation (Mar. 1, 2017)
("March 1, 2017 Press Release"). Among other
things, the Committee's investigation is seeking answers
to the following questions: (1) "What Russian cyber
activity and other active measures were directed against the
United States and its allies?" and (2) "Did the
Russian active measures include links between Russia and
individuals associated with political campaigns or any other
U.S. Persons?" Id.
is a research firm that provides strategic intelligence,
opposition research-including research on political
candidates-and due diligence services to corporations, law
firms, and investors. Peel, of Peter Fritsch ("Fritsch
Decl.") [Dkt. #2-2] ¶ 6. During the 2016
Presidential election campaign, an unknown third party
engaged Fusion's services to conduct political opposition
research on then-candidate Donald J. Trump ("Mr.
Trump"). Id. at ¶ 9; Decl. of Mark R.
Stewart ("Stewart Decl.") [Dkt. #12-1] ¶ 5. In
early 2016, that unknown client terminated its contract with
Fusion, but another client took over the contract, seeking
the same opposition research. Stewart Decl. ¶ 5. As part
of this research, Fusion hired a former British intelligence
officer, Christopher Steele (''Steele"), to
research Mr. Trump's ties to Russia. Id. at
¶¶ 4, 6; Fritsch Decl. ¶ 9. Steele's
research led to a series of memos that has become known in
the press as the "Trump Dossier." Stewart Decl.
¶¶ 4, 6; Fritsch Decl. ¶ 9. The Dossier made
unverified allegations of misconduct regarding Mr.
Trump's relationship with Russian individuals, as well as
allegations of collusion between the Trump campaign and
representatives of the Russian government during the 2016
Presidential election. Stewart Decl. ¶ 6.
later revealed that Steele was paid an undisclosed sum of
money for work he performed on behalf of the FBI, and that
the Trump Dossier was provided to the FBI in 2016.
Id. at ¶¶ 4-7, 9. It also came to light
that other individuals in the Intelligence Community were
aware of the Trump Dossier and its contents, and that they
provided briefings about the Dossier to both President Obama
and President-elect Trump in January 2017. Id. at
¶ 9. As a result, the Committee is seeking to discover,
inter alia, who paid Fusion for the Trump Dossier,
who received it, whether steps were taken to verify its
accuracy, and whether the FBI relied on the Dossier as
grounds for its counterintelligence investigation into
potential coordination between the Trump campaign and the
Russian government to influence the 2016 Presidential
election. Id. at ¶¶9-10.
unsuccessful attempts to obtain relevant documents and
testimony from Fusion itself, see, e.g., Stewart
Decl. ¶¶ 12-13, Committee Chairman Devin Nunes
("Chairman Nunes") issued subpoenas for testimony
and documents to each of Fusion's principals.
Id. at ¶ 14. Fusion's principals objected
to these subpoenas, but on October 18, 2017, two of them
appeared for compelled testimony, during which they invoked
constitutional privileges not to testify pursuant to the
First and Fifth Amendments. Id. at ¶¶
October 5, 2017, the Committee served the Subpoena at issue
in this dispute on Defendant Bank, seeking "all
documents sufficient to identify Fusion GPS's banking
transaction history, among other items, from August 1, 2015
to October 4, 2017." Id. at ¶ 14; Decl. of
Joshua A. Levy ("Levy Decl.") Ex. A [Dkt. #2-3].
The Bank initially raised a number of objections to the
Subpoena, but after the Committee rejected all of those
objections, the Bank, on October 19, 2017, agreed to comply
and produce all responsive documents by 9 A.M. on October 23,
2017. Stewart Decl. ¶ 18.
response, Fusion immediately filed the instant action on
October 20, 2017, seeking to enjoin the Bank from turning
over records of Fusion's financial transactions to the
Committee. See Compl. ¶ 3. Curiously, Fusion
did not name the Committee as a defendant, but instead listed
only Defendant Bank. See Id. at ¶ 9. This case
was initially assigned to my colleague, Judge Tanya Chutkan,
and she held a telephonic hearing with all interested
parties-including the Committee-at 5 P.M. on the day the suit
was filed. See 10/20/17 Minute Entry; Telephone
Conference Tr., Oct. 20, 2017 [Dkt. #18]. The Committee
formally intervened in this case the following day.
See Mot. to Intervene [Dkt. #7]; 10/21/17 Minute
Order (granting the Committee's Motion to Intervene).
reviewing the pleadings, the Court again held a telephonic
hearing with the parties on October 24, 2017. See
10/24/17 Minute Entry. Noting her "reluctan[ce] to wade
into this dispute because it presents issues on which there
is very little authority, and because it involves a
congressional investigation in which [the Court does] not
wish to intrude, " the Court stated that "both
sides have an interest in resolving this dispute short of
judicial involvement." Telephone Conference Tr. 4:16-18,
5:22-25, Oct. 24, 2017 [Dkt. #17]. The Court accordingly
"strongly encourage|ed] the parties to try and arrive at
an agreement, " and gave them until 6 P.M. on October
26, 2017 to do so. Id. at 5:24-25; 10/24/17 Minute
by the Court's directive, the parties were able to find
common ground, and they entered into a Confidential Agreement
that provided a mutually agreeable process by which the
Committee could review the requested documents. The Court
entered a Stipulation and Order binding the parties to the
terms of the Confidential Agreement, and it also entered a
Sealed Protective Order to preserve the confidentiality of
the records sought by the Subpoena. See Stipulation
& Order [Dkt. #19] 1. Two days later, the Court dismissed
the case, but it retained jurisdiction, should any disputes
arise. Id. at 2; Order of Dismissal [Dkt. #21].
these events were unfolding, however, the Committee learned
from a Washington Post report that the Clinton
campaign and the Democratic National Committee
("DNC") had provided funding to Fusion for the
research that resulted in the Trump Dossier. Decl. of Scott
L. Glabe ("Glabe Decl.") [Dkt. #37-2] ¶ 11.
Specifically, the Washington Post reported that Mark
E. Elias, an attorney with the law firm Perkins Coic- who
represented both the Clinton Campaign and the DNC-was the
individual who retained Fusion for the purposes of gathering
opposition research on Mr. Trump. Id. The Committee
also learned from public reporting that Fusion was accused of
acting as an unregistered agent of the Russian government, in
violation of the Foreign Agent Registration Act, based on
work it performed for Prevezon Holdings
("Prevezon"), a Russian state-owned company.
Id. at ¶ 6. This same report revealed that
Prevezon organized its lobbying efforts through the law firm
Baker Hostetler, which was also providing litigation services
for Prevezon on a criminal asset forfeiture case being
brought by the U.S. Justice Department in the Southern
District of New York. Id. at ¶¶ 6, 21.
Together, these reports confirmed that various law firms and
businesses had retained Fusion on behalf of their clients to
perform Russia-related work, thus triggering the
Committee's investigative interest in identifying other
businesses that sought Fusion's services during the same
relevant time period. Id. at ¶¶ 20-22.
October 27, 2017, pursuant to the terms of the parties'
Confidential Agreement, the Bank produced certain responsive
records, and the Committee reviewed them. Id. at
¶¶ 12-15. The Committee's review was informed,
in part, by classified information in the Committee's
possession. Id. at ¶ 19. On November 1, 2017,
the Committee identified eighty-two transactions necessary
for its investigation that had not been previously produced
by the Bank. Id. at ¶ 18. The Committee also
sought reproduction of thirty transactions already produced
in the initial production. Id. In total, the
Committee requested that Fusion instruct the Bank to produce,
or re-produce, records of one hundred and twelve
transactions. Id. To support its requests, the
Committee also submitted a justification for each payor or
payee, explaining the nexus between the records sought and
the Committee's investigation. Id.
same day, Fusion objected to the Committee's requests,
arguing that the requested records-which contained financial
transactions between Fusion and certain law firms, media
companies, journalists, and contractors-were irrelevant to
the Russia investigation. See Reply in Supp. of
Pl's. Renewed Appl. for a TRO & Mot. for Prelim. Inj.
("Pl's. Renewed Reply") Ex. C [Dkt #35-3]. On
November 3, 2017, the Bank produced twelve of the requested
transactions, leaving seventy previously unproduced
transactions-and thirty re-productions-outstanding. Glabe
Decl. ¶ 33. The parties were ultimately unable to come
to an agreement on these seventy remaining transactions, so
plaintiff moved to reopen this case and filed its renewed
motion for a temporary restraining order and preliminary
injunction on November 3, 2017. See Mot. to Reopen
Case [Dkt. #22]; Pl's. Renewed Appl. for TRO & Mot.
for Prelim. Inj. ("Pl's. Renewed Mot.") I Dkt.
#23]. Shortly thereafter, Judge Chutkan recused herself, and
this case was randomly reassigned to me on November 9, 2017.
See Reassignment of Civil Case [Dkt. #29].
November 15, 2017, 1 held the first hearing since plaintiff
filed its renewed motion. See 11/15/17 Minute Entry.
During this initial hearing, I consolidated plaintiff s
motion for a temporary restraining order and motion for a
preliminary injunction. Motions Hr'g Tr. 6:16-24, 7:2-6,
November 15, 2017 [Dkt. #41]. I also expressed concern that
all of the pleadings had been filed under seal. Noting that
"having public, open hearings on a matter is in the best
interest of all concerned, " I ordered that the
pleadings-'be reconstituted and refilled not
under seal." Id. at 7:10-11, 7:16-17. Although
I permitted the parties to file certain documents under seal,
the bulk of the pleadings were refilled in a redacted, public
format. After reviewing the filings, I held oral argument on
November 30, 2017, bifurcating the hearing into a public
session for legal arguments, and a sealed session to discuss
any confidential issues that might need to be addressed by
the parties. See 11/30/17 Minute Entry. Plaintiffs
motion is now ripe for my review.
is seeking a preliminary injunction, which requires
compliance with the same standard as a temporary restraining
order. Hall v. Johnson,599 F.Supp.2d 1, 3 n.2
(D.D.C. 2009). "A plaintiff seeking a preliminary
injunction must establish  that he is likely to succeed on
the merits,   that he is likely to suffer
irreparable harm in the absence of preliminary relief, 
that the balance of equities tips in his favor, and  that
an injunction is in the public interest." Earner v.
Obama,742 F.3d 1023, 1038 (D.C. Cir. 2014) (internal
quotation marks omitted). Because the relief Fusion seeks is
"an extraordinary remedy, " a preliminary
injunction "should be granted only when the ...