Judge Gardephe yesterday certified for interlocutory appeal his earlier ruling (covered here) allowing the SEC to obtain some (but not all) categories of information sought by a subpoena to a congressional committee in connection with an investigation of the STOCK Act, which essentially extends the insider trading laws to Congress. He found that an immediate appeal was appropriate because, once the subpoenaed materials are turned over, the harm of any violation would be difficult to undo, and because the case raised a “serious question” for appeal:
A “serious question” exists where “there is no controlling Supreme Court or Second Circuit precedent on point and the only available guiding precedent does not cut decisively in either direction.” This is such a case. Indeed, there are no reported cases involving a like effort by a federal agency to seek enforcement of an administrative subpoena directed to Congress. Moreover, the Circuits are split on the issue of whether the Speech or Debate Clause provides a non-disclosure privilege for “legislative act” documents. In short, this case raises multiple issues for which no binding precedent is available.