Shawn Musgrave v. Mark Warner , Chairman and Senate Select Committee on Intelligence

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2023 Decided June 18, 2024
No. 22-5252
S HAWN M USGRAVE,
APPELLANT
v.
M ARK WARNER , C HAIRMAN AND S ENATE S ELECT C OMMITTEE
ON INTELLIGENCE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02198)
Kelly B. McClanahan argued the cause and filed the briefs
for appellant.
Thomas E. Caballero, Assistant Senate Legal Counsel,
Office of Senate Legal Counsel, argued the cause for appellees.
With him on the brief were Morgan J. Frankel, Senate Legal
Counsel, and Patricia Mack Bryan, Deputy Senate Legal
Counsel.
Thomas Pulham, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States in support of
appellees. With him on the brief were Brian M. Boynton,

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Principal Deputy Assistant Attorney General, and Michael S.
Raab, Attorney.
Before: P ILLARD , W ILKINS and C HILDS , Circuit Judges.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: Shawn Musgrave is a freelance
journalist who seeks access to a largely classified congressional
committee report on the CIA’s use of detention and
interrogation in the wake of the September 11, 2001, terrorist
attacks. After the committee failed to respond to his request
for a copy of the full report, Musgrave filed this lawsuit
invoking a common law right of access to the committee report,
naming as defendants the committee itself and its chair. The
district court dismissed the complaint, holding that the
defendants are protected by sovereign immunity, and that the
Constitution’s Speech or Debate Clause prevents compelled
disclosure of the report. It also denied Musgrave’s request for
discovery about the report’s purpose and the Committee’s
communications with the Executive Branch about the report.
Without reaching the question whether sovereign immunity
bars Musgrave’s asserted common law right of access, we
affirm the judgment of the district court on the ground that the
Speech or Debate Clause imposes a privilege against
Musgrave’s requests for discovery and compelled disclosure of
the report.
BACKGROUND
The following allegations are drawn from Musgrave’s
complaint and matters of which we may take judicial notice. In
2009, the Senate Select Committee on Intelligence (the
Committee) initiated a study of the CIA’s use of detention and
interrogation in the wake of the September 11, 2001, terrorist

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attacks. To conduct that study, the Committee needed access
to sensitive information held by the Executive Branch,
including, for example, “the names of non-supervisory CIA
officers, liaison partners, [and] black-site locations.” See
Letter from Chairman Dianne Feinstein and Vice Chairman
Christopher S. Bond to CIA Director Leon Panetta at 3 (June
2, 2009) (“Feinstein Letter”) (available at United States
Amicus Br. Add. 1-5). To that end, the “Committee and
officials at the CIA negotiated arrangements to deal with access
to classified materials by Senators and their staff, and agreed
on rules regarding the Committee’s control over its work
product.” ACLU v. CIA, 823 F.3d 655, 658 (D.C. Cir. 2016).
As part of those arrangements, the Committee acknowledged
that “[a]ny . . . reports” arising out of the review “will carry the
highest classification of any of the underlying source
materials,” and that if the Committee wants to produce an
unclassified report for public release, it “will submit that
document to CIA . . . for classification review and, if
necessary, redaction.” Feinstein Letter at 4.
A report summarizing the study’s findings was completed
in 2014. Many congressional committee reports are made
available to the public. See Congressional Reports, GovInfo,
https://www.govinfo.gov/ app/collection/crpt (last visited June
5, 2024). Pursuant to the agreement with the CIA, however,
this report was classified. It is long—6,700 pages, 38,000
footnotes—and highly critical of the CIA’s response to 9/11.
The Committee shared full copies of the classified report with
the President and certain executive agencies. One goal of
distributing the report to relevant executive-branch actors was
to enable the federal government to learn from bitter
experience and “help make sure that the system of detention
and interrogation described in th[e] report is never repeated.”
See Report of the Senate Select Committee on Intelligence
Study of the Central Intelligence Agency’s Detention and

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Interrogation Program at i (“Unclassified Report”), S. Rep. No.
113-288 (2014), https://perma.cc/UF4U-ZPHG.
The Committee also declassified and released to the public
a redacted and abridged version, containing a foreword written
by the Committee’s then-Chair Senator Dianne Feinstein, an
executive summary, findings and conclusions, and minority
views. That version of the report runs more than 700 pages and
is readily available online. See Unclassified Report. Senator
Feinstein noted that the report’s length meant that
declassification review of the full report would have delayed
its release, so she opted to release an abridged version of the
report with substantial portions—perhaps more than
necessary—treated as classified. Id. at vi. She advised that
“[d]ecisions will be made later on the declassification and
release of the full 6,700 page Study.” Id.
In January 2015, Senator Richard Burr replaced Senator
Feinstein as Committee Chair and requested that the President
and executive agencies return their copies of the report to the
Committee. Most agencies complied with that request.
President Barack Obama, however, ordered the report
preserved as part of his official presidential records. In
addition, U.S. District Judge Royce Lamberth ordered that one
copy of the full report be kept by the Department of Defense
and another deposited for secure storage with the district court
in connection with several habeas corpus petitions related to
the treatment of Guantanamo Bay detainees. See Compl. ¶ 28
(J.A. 15).
Citing the public’s interest in reviewing the full report, a
civil liberties organization filed a Freedom of Information Act
(FOIA) lawsuit in 2013 to obtain the report from the executive
agencies. We held that the report was a congressional record,
outside the reach of the disclosure requirements FOIA imposes

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on the Executive Branch, because the Committee manifested a
clear intent to “retain control” of the document. ACLU, 823
F.3d at 658, 667. A district court in New York later came to
the same conclusion. Cox v. Dep’t of Just., No. 17-cv-3329,
2022 WL 21304584, at *5 (E.D.N.Y. Mar. 30, 2022).
Unable to obtain the report from the executive agencies,
Musgrave requested a copy directly from the Committee.
When the Committee did not respond to that request, Musgrave
filed this lawsuit, claiming a common law right of access to the
report and invoking the Larson-Dugan exception to sovereign
immunity. See Larson v. Domestic & Foreign Com. Corp., 337
U.S. 682, 689 (1949); Dugan v. Rank, 372 U.S. 609, 620-23
(1963). He named as defendants Senator Mark Warner, who
now chairs the Committee, and the Committee itself. He
sought an order requiring the defendants “to provide the
[report] to him.” Compl. at 12 (prayer for relief).
The defendants moved to dismiss the complaint. They
argued the district court lacked subject-matter jurisdiction
under the doctrine of sovereign immunity and the Speech or
Debate Clause. Musgrave cross-moved for partial summary
judgment and, in opposing the motion to dismiss, requested
discovery about the report’s purpose and the Committee’s
communications with the Executive Branch about the report.
He also clarified that he does not seek “the full classified
Report.” See Pl.’s Mem. in Opp’n & Cross-Mot. for Partial
Summ. J. at 20, Musgrave v. Warner, No. 21-cv-2198 (D.D.C.
Mar. 20, 2022), ECF No. 14 (emphases omitted). Rather, his
aim was to “compel” the defendants to seek completion of the
declassification review previously contemplated by Senator
Feinstein, obtain a declassified version of the full report (which
does not currently exist), and then “disclose to him the
releasable portions of the full Report.” See id. The district
court ruled that it lacked subject-matter jurisdiction under both

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theories, denied Musgrave’s motion for partial summary
judgment and request for discovery, and dismissed the
complaint. Musgrave v. Warner, No. 21-cv-2198, 2022 WL
4245489, at *10 & n.12 (D.D.C. Sept. 15, 2022).
Musgrave timely appealed, and we have jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s grant
of a motion to dismiss for lack of subject-matter jurisdiction.
Rangel v. Boehner, 785 F.3d 19, 22 (D.C. Cir. 2015). We
review for abuse of discretion a district court’s denial of
discovery. Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519,
523 (D.C. Cir. 2019).
DISCUSSION
On appeal, Musgrave challenges the district court’s
dismissal of his complaint and denial of his request for
discovery.
A.
Musgrave invokes a common law right of access to the
report. “[T]he common law bestows upon the public a right of
access to public records and documents.” Wash. Legal Found.
v. U.S. Sent’g Comm’n, 89 F.3d 897, 902 (D.C. Cir. 1996)
(citing Nixon v. Warner Commc’ns., Inc., 435 U.S. 589, 597
(1978)). That right extends to “all three branches of
government, legislative, executive, and judicial.” Id. at 903
(quoting Schwartz v. U.S. Dep’t. of Just., 435 F. Supp. 1203,
1203 (D.D.C. 1977)); see also Leopold v. Manger, 102 F.4th
491 (D.C. Cir. 2024). In practice, the right is “almost always”
invoked “in cases involving access to court documents.” Wash.
Legal Found., 89 F.3d at 902-03. And with respect to
documents in the Executive Branch, it has been displaced by
FOIA. See Ctr. for Nat’l Sec. Studs. v. U.S. Dep’t of Just., 331
F.3d 918, 936 (D.C. Cir. 2003).

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By contrast, the nature and scope of the common law right
of access to documents in the Legislative Branch is relatively
undeveloped. We have not identified, for example, the entities
within the Legislative Branch to which the common law right
of access extends. As the government suggested in its briefing
in Schilling v. U.S. House of Representatives, the right of
access may reach entities within the Legislative Branch “other
than Congress, including the U.S. Capitol Police, the
Government Accountability Office, the Library of Congress,
the Architect of the Capitol, and other entities and offices that
support Congress,” without reaching the Congress itself or its
members. See Defendants-Appellees’ Brief at 50, Schilling v.
U.S. House of Representatives, 102 F.4th 503 (D.C. Cir. 2024)
(No. 22-5290), 2024 WL 2715998.
We have no need to consider the reach of the common law
right of access in this case because, as we explain below,
Musgrave’s claim cannot overcome the protection afforded by
the Speech or Debate Clause. That said, we note that our
analysis would look similar if we began with sovereign
immunity. When evaluating whether a common law right of
access claim satisfies the Larson-Dugan exception to sovereign
immunity, “the question of jurisdiction merges with the
question on the merits.” Leopold, 2024 WL 2713596, at *5
(quoting Wash. Legal Found., 89 F.3d at 902). And, to prevail
on the merits, Musgrave would have to show, among other
things, that the Speech or Debate Clause does not
independently bar his claim. Even if we began with sovereign
immunity, then, Musgrave’s claim would founder at the same
place: the Speech or Debate Clause. Heeding the general
wisdom of deciding cases narrowly, we proceed directly to that
point.

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1.
The Speech or Debate Clause provides that, “for any
Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place.”
U.S. Const. art. I, § 6, cl. 1. “The purpose of the Clause is to
insure that the legislative function the Constitution allocates to
Congress may be performed independently.” Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491, 502 (1975). It does so by
guarding against “intrusion by the Executive and the Judiciary
into the sphere of protected legislative activities.” United
States v. Helstoski, 442 U.S. 477, 491 (1979). In service of
those ends, the Clause provides “a somewhat complicated
privilege, with several strands.” Brown & Williamson Tobacco
Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995).
Two strands of its protection are relevant here. First,
“when the actions upon which a plaintiff seeks to predicate
liability are legislative acts,” the Speech or Debate Clause
“operates as a jurisdictional bar,” conferring absolute immunity
from suit. Howard v. Off. of Chief Admin. Officer of U.S.
House of Representatives, 720 F.3d 939, 940 (D.C. Cir. 2013)
(formatting modified) (quoting Fields v. Off. of Eddie Bernice
Johnson, 459 F.3d 1, 13 (D.C. Cir. 2006) (en banc) (plurality
op.)). For example, the Speech or Debate Clause immunized
members of Congress from civil litigation that sought to
predicate liability on the public issuance of a committee report
that included allegedly private, defamatory material. See Doe
v. McMillan, 412 U.S. 306, 312 (1973).
Second, even when a plaintiff does not base her claim on
a legislative act, the Clause offers “evidentiary and testimonial
privileges [that] shield Members against certain forms of
questioning,” without “depriv[ing] the court of jurisdiction.”
Massie v. Pelosi, 72 F.4th 319, 321 n.1 (D.C. Cir. 2023); see,

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e.g., United States v. Brewster, 408 U.S. 501, 512 (1972) (“[A]
Member of Congress may be prosecuted under a criminal
statute provided that the Government’s case does not rely on
legislative acts or the motivation for legislative acts.”). Thus,
the immunity strand operates as a jurisdictional bar, whereas
the privilege strand does not deprive the court of jurisdiction.
Our circuit “recognizes that one aspect of the testimonial
privilege is a limited protection against the compelled
disclosure of documents”—in other words, a nondisclosure
privilege. In re Sealed Case, 80 F.4th 355, 365 (D.C. Cir.
2023). For example, we have permitted members to invoke
the Speech or Debate Clause to quash subpoenas calling for
legislative documents. See In re Grand Jury Subpoenas, 571
F.3d 1200, 1200-01 (D.C. Cir. 2009); Brown & Williamson, 62
F.3d at 423; MINPECO, S.A. v. Conticommodity Servs., Inc.,
844 F.2d 856, 863 (D.C. Cir. 1988). Members have likewise
relied on the Clause to prevent disclosure and force the return
of legislative documents seized pursuant to a search warrant.
See In re Sealed Case, 80 F.4th at 372; United States v.
Rayburn House Off. Bldg., 497 F.3d 654, 656 (D.C. Cir. 2007).
Musgrave’s asserted right of access to the Committee’s
report could in theory implicate both the immunity and
nondisclosure strands of the privilege. Musgrave’s complaint
seeks to predicate liability on the defendants’ failure to provide
him with a full copy of the report. Musgrave has since
clarified, however, that his claim is that the defendants have
ignored their duty to seek further declassification of the report.
His logic seems to be that, in failing to do so, the defendants
violated the common law right of access. So, if Senator
Warner’s refusal to seek further declassification of the report
were itself a legislative act, the Speech or Debate Clause would
immunize him from this suit and thereby deprive the district
court of jurisdiction to consider the claim.

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We need not decide whether Musgrave’s claim seeks to
base liability on a legislative act within the scope of the Speech
or Debate Clause. Musgrave’s complaint must be dismissed
because, even assuming a claim seeking to trigger a full
declassification review of the report were not entirely barred,
the nondisclosure privilege of the Speech or Debate Clause
would preclude us from compelling the defendants to release
the resultant less-redacted report. Because the Speech or
Debate Clause’s nondisclosure privilege bars the relief
Musgrave seeks, it is a “threshold ground[] for denying
audience to a case on the merits” that we have the “leeway” of
deciding before jurisdictional issues, such as sovereign
immunity or immunity under the Speech or Debate Clause.
Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping Corp., 549
U.S. 422, 431 (2007) (citing Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 100-101 n.3 (1998); and Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999)).
2.
We turn, therefore, to the defendants’ assertion that the
report is what we refer to as a legislative document. A
document in Congress’ possession is a legislative document—
and therefore may not be “reached either in a direct suit or a
subpoena”—so long as the document “comes into the hands of
congress[members]” by way of “‘legislative acts’ or the
legitimate legislative sphere.” Brown & Williamson, 62 F.3d
at 421; see MINPECO, 844 F.2d at 863 (a legislative document
is one that is “the product of activities within the legislative
sphere”); see also In re Sealed Case, 80 F.4th at 365 (a
legislative document is one that contains “evidence” of
legislative acts).
The paradigmatic legislative act “is speech or debate in
either House.” Gravel v. United States, 408 U.S. 606, 625

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(1972). “Insofar as the Clause is construed to reach other
matters, they must be 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.” Id. To that end, we
have held that “legislative acts” include “acts of voting,
conduct at committee hearings, preparation of committee
reports, authorization of committee publications and their
internal distribution, and issuance of subpoenas concerning a
subject on which legislation could be had.” McSurely v.
McClellan, 553 F.2d 1277, 1284-85 (D.C. Cir. 1976) (en banc)
(internal quotation marks omitted). A member of Congress
would therefore enjoy absolute immunity from any suit that
seeks to hold the member liable based on one of those acts.
By the same token, we have held that the Speech or Debate
Clause precludes the compelled disclosure of congressional
committee subpoenas, Jud. Watch, Inc., 998 F.3d at 992, and
the transcript of a statement made during a subcommittee
hearing, MINPECO, 844 F.2d at 858, 860. In both cases we
explained that, because the activities leading to the documents’
creation were legislative acts, the documents themselves were
legislative documents and thus protected by the Speech or
Debate Clause from compelled disclosure. See Jud. Watch,
Inc., 998 F.3d at 992 (“Here, the Committee’s issuance of
subpoenas, whether as part of an oversight investigation or
impeachment inquiry, was a legislative act protected by the
Speech or Debate Clause.”); MINPECO, 844 F.2d at 861 (“As
the preparation of the statement for publication in the
subcommittee report was part of the legislative process, that is
the end of the matter.”).

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The same logic applies to committee reports. Congress
has the power to investigate any subject “on which legislation
could be had.” Eastland, 421 U.S. at 504 n.15 (quoting
McGrain v. Daughtery, 273 U.S. 135, 177 (1927)); see also
Trump v. Mazars USA, LLP, 591 U.S. 848, 863 (2020) (same).
That investigatory power “is inherent in the power to make
laws.” Eastland, 421 U.S. at 504. After all, “a legislative body
cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is
intended to affect or change.” Id. Thus, “[a]n investigation
authorized by the House and within [a committee’s]
jurisdiction is an exercise of congressional power and by
definition part of a legislative proceeding.” In re Sealed Case,
80 F.4th at 369.
A committee report is an outcome of a committee
investigation. That is why, so long as the underlying
investigation is authorized and within the committee’s
jurisdiction, the “preparation of committee reports” is a
protected legislative act. McSurely, 553 F.2d at 1284 (citing
Doe, 412 U.S. at 311-13, 317-18). And, by the same token, the
committee report itself is a privileged legislative document.
Musgrave does not dispute that the Committee’s
investigation was both authorized and within the Committee’s
jurisdiction. The Senate established the Committee “to oversee
and make continuing studies of the intelligence activities and
programs of the United States Government, and to submit to
the Senate appropriate proposals for legislation and report to
the Senate concerning such intelligence activities and
programs.” S. Res. 400, 94th Cong., 2d Sess. (1976), § 1. The
Senate charged the Committee with the responsibility “to
provide vigilant legislative oversight over the intelligence
activities of the United States to assure that such activities are
in conformity with the Constitution and laws of the United

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States.” Id. To that end, the Senate authorized the Committee
to “make investigations into any matter within its jurisdiction,”
id. § 5(a)(1), and bring “to the attention of the Senate . . . any
matters requiring the attention of the Senate,” id. § 4(a).
Pursuant to that authority, the Committee “conduct[ed] a
comprehensive review of the program of detention and
interrogation formerly run by the [CIA].” ACLU, 823 F.3d at
658. After completing that investigation, the Committee
prepared the report. Because the report “emanat[ed] from [the
Committee’s] oversight investigation of the CIA,” id. at 665—
a legislative act—it is a legislative document privileged under
the Speech or Debate Clause. The Clause thus “bars this court
from ordering a congressional committee” to disclose the
report. Senate Permanent Subcomm. on Investigations v.
Ferrer, 856 F.3d 1080, 1086 (D.C. Cir. 2017).
Musgrave concedes that committee reports are generally
legislative documents. He nevertheless contends that the report
at issue here is not a legislative document because its “stated
purpose was not to aid legislative deliberation, but to create a
record for the Executive Branch and the public.” Appellant Br.
19 (formatting modified). Put differently, Musgrave complains
that the report is not a “deliberative document” but an “end[]
unto [it]sel[f]” and, as a result, not privileged under the Speech
or Debate Clause. Id. at 16.
The Speech or Debate Clause’s nondisclosure privilege is
not limited to deliberative documents. As discussed, it protects
any document that “comes into the hands of
congress[members]” by way of “‘legislative acts’ or the
legitimate legislative sphere.” Brown & Williamson, 62 F.3d
at 421. That includes a document—like a subpoena or a
committee report—that may be a result of congressional
deliberation but does not itself reflect such deliberation. In

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suggesting otherwise, Musgrave seemingly conflates the
Speech or Debate Clause’s nondisclosure privilege with the
executive deliberative process privilege, which more narrowly
“shields from disclosure ‘documents reflecting advisory
opinions, recommendations and deliberations comprising part
of a process by which governmental decisions and policies are
formulated.’” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,
592 U.S. 261, 267 (2021) (quoting NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975)).
In any event, the report is a deliberative document. As the
defendants point out, the Committee conducted the
investigation and wrote the report in part to help decide
whether legislation was needed. Appellee Br. 22-23. That is
itself an important step in the legislative process. See Eastland,
421 U.S. at 509 (“To be a valid legislative inquiry there need
be no predictable end result.”). Senator Feinstein explained in
the report’s public foreword that the investigation’s purpose
was to review the CIA’s program “and to shape detention and
interrogation policies in the future.” Unclassified Report at vi.
She then emphasized that changes should be “enshrined in
legislation.” Id. at vii. Within a year of the Committee’s
submission of the report to the Senate, the Senate enacted
legislation limiting interrogation techniques that may lawfully
be used on detainees. See National Defense Authorization Act
for FY 2016, Pub. L. No. 114-92, § 1045, 129 Stat. 726, 977-
79 (2015). And members of Congress invoked the report’s
findings in urging passage of the bill. See, e.g., 161 Cong. Rec.
S4176 (daily ed. June 16, 2015) (statement of Sen. Patrick
Leahy). So, the report played an integral role in the legislative
process.
Musgrave also questions the subjective purpose of the
Committee in creating the report. Appellant Br. 16. He insists
that, even if the report did play a role in the legislative process,

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the Committee “never intended” that to happen. Id. In
assessing whether the Committee’s investigation is a
“legislative act[],” however, “we do not look to the motives
alleged to have prompted it.” Eastland, 421 U.S. at 508. In
Eastland, for example, the plaintiffs sought to enjoin the
issuance of a congressional subpoena demanding their
organization’s membership list. 421 U.S. at 508. They argued
that the “sole purpose” of the investigation was to force the
“public disclosure of beliefs, opinions, expressions and
associations of private citizens which may be unorthodox or
unpopular”—not, in other words, to aid legislative work. Id.
The Court rejected that argument because “the Speech or
Debate Clause protects against inquiry into acts that occur in
the regular course of the legislative process and into the
motivation for those acts.” Id. (quoting Brewster, 408 U.S. at
525 (emphasis omitted)). Regardless of the investigation’s
purpose, then, the resulting report is protected from disclosure
by the Speech or Debate Clause.
Finally, Musgrave’s complaint suggests that, even if the
Speech or Debate Clause applies, it “may not be categorically
invoked to preclude any request for . . . a public record” under
the common law right of access. Compl. ¶ 14 (J.A. 10). On
this view, we must weigh “the Government’s interest in
keeping the document secret . . . against the public’s interest in
disclosure.” Id. For support, Musgrave invokes the concurring
opinion in Judicial Watch, which suggests that “the application
of the Speech or Debate Clause to a common law right of
access claim would require careful balancing.” 998 F.3d at 993
(Henderson, J., concurring). But Musgrave explicitly
abandons that argument on appeal, insisting that he is not
“challenging” the “‘absolute’ nature of the Speech or Debate
Clause.” Appellant Br. 13. He asserts only that the report is
not “covered by the Speech or Debate Clause in the first place.”

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Id. We therefore need not conduct any balancing nor consider
whether balancing would be appropriate.
* * *
In sum, we conclude that the report is a legislative
document, and that the Speech or Debate Clause therefore
protects it from compelled disclosure. The district court
correctly dismissed the complaint, and we affirm that
judgment.
B.
Musgrave also appeals the district court’s denial of his
request for discovery relating to whether the report is subject
to the Speech or Debate Clause’s nondisclosure privilege. The
district court held that its “lack of subject-matter jurisdiction
over this suit also bars plaintiff’s request for limited discovery
in lieu of dismissal.” Musgrave, 2022 WL 4245489, at *10 &
n.12. We explained above our decision to affirm the district
court’s dismissal based on the alternative threshold ground that
the report was privileged under the Speech or Debate Clause,
rather than the jurisdictional ground that the defendants were
immune either under the Speech or Debate Clause or the
doctrine of sovereign immunity. But regardless whether the
Speech or Debate Clause imposes a jurisdictional bar in this
case, a district court does not need jurisdiction to permit
jurisdictional discovery. See Lewis v. Mutond, 62 F.4th 587,
596 (D.C. Cir. 2023). For that reason, the district court should
not have denied discovery without determining either that the
discovery was itself precluded by the Speech or Debate Clause,
or that “no facts that additional discovery could produce would

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affect” the Speech-or-Debate Clause analysis. Id. at 595
(formatting modified).
We nonetheless affirm the denial of discovery because the
error was not an abuse of discretion. A district court abuses its
discretion when it commits a “material error of law.” In re
White, 64 F.4th 302, 312 (D.C. Cir. 2023). Musgrave argues
that, because the district court categorically refused to consider
the discovery request, we should review the denial de novo,
rather than for abuse of discretion. Reply Br. 11-12. But he
offers no support for departing here from the abuse-of-
discretion review ordinarily applicable to district court
discovery orders. See Haynes, 924 F.3d at 523.
Reviewing for abuse of discretion, we conclude that the
district court’s error was not material. Musgrave seeks
discovery “about the purpose of the [report] and the exchanges
[the Committee] had with the Executive Branch about it.”
Appellant Br. 24-25. He proposes “the use of interrogatories,
documents requests, and requests for admissions,” in addition
to “targeted depositions of individuals who can speak with
personal knowledge.” Id. at 25. The report is a legislative
document, and the Speech or Debate Clause “protects against
inquiry into acts that occur in the regular course of the
legislative process and into the motivation for those acts.”
Eastland, 421 U.S. at 508. As we discussed, the creation of the
report was a legislative act protected regardless of its purpose,
and Musgrave does not specify how any communications he
seeks between the Committee and the Executive Branch could
bolster his argument to the contrary. Because Musgrave has
not shown that any requested discovery could produce
information that would affect the Speech-or-Debate analysis,
there is no basis for remand to allow it.

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18
CONCLUSION
For the foregoing reasons, the judgment is affirmed.
So ordered.

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