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Supreme Court Refuses to Stay Senate Subpoena, Highlights the Difficulties Inherent in Challenging a Congressional Subpoena

The Supreme Court today refused to block a subpoena by the Senate Permanent Subcommittee on Investigations of the online forum Backpage and its CEO Carl Ferrer. As we previously reported, Ferrer lost at the District Court in his effort to block the Senate subpoena, arguing primarily that the subpoena abridged his First Amendment rights.  Ferrer appealed the District Court’s decision to the Court of Appeals.  Since losing at the District Court, Ferrer has been fighting a parallel battle to delay the enforcement of the subpoena while the appeal is pending.

Ferrer sought a stay of the subpoena from the District Court and lost; sought a stay from the D.C. Circuit Court of Appeals and lost; and finally sought a stay from the Supreme Court. The Supreme Court delayed the enforcement of the subpoena briefly last week to permit both sides to submit briefs, but today’s action lifts that reprieve.  Ferrer will now face a short deadline with which to comply with the Senate’s demand for documents.

Ferrer had previously contended that his case met the legal standard for a stay pending the outcome of the appeal, arguing that he was likely to prevail in the appeal. Ferrer has now lost in all three courts on that question, and he will shortly be required to deliver to the Senate the documents he had long sought to protect. We wonder whether these developments will alter his approach to the appeal, as he would now be advancing the appeal primarily as a matter of principle.  The briefs in the appeal are due next month.

In our previous post, we noted that the case could have significant implications for the law related to congressional investigations and the enforceability of congressional subpoenas. At this juncture, the case serves primarily as a cautionary tale of the difficulties inherent in challenging a congressional subpoena.  Ferrer had to defy the subpoena and endure a congressional contempt resolution merely to get into court, and under today’s order from the Supreme Court, he now must produce the documents to the Senate even before his legal arguments are heard by the Court of Appeals.

© 2020 Covington & Burling LLPNational Law Review, Volume VI, Number 257


About this Author

Brian Smith, Covington, Litigation attorney
Of Counsel

Brian Smith advises clients on challenging public policy matters that combine legal and political risks and opportunities.

Mr. Smith represents companies and individuals facing high-profile and high-risk investigations, congressional investigations, and criminal and civil investigations with political or public relations implications. He assists companies and executives responding to formal and informal inquiries from Congress and executive branch agencies for documents, information, and testimony, and he conducts internal investigations to assess legal risks. He...