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AP Photo Judge rules that anti-Planned Parenthood activists can give Congress undercover videos

Heading off a potential constitutional clash, a federal judge ruled Tuesday that anti-abortion activists can hand over unreleased undercover sting videos and outtakes subpoenaed by a House committee even though a court order remains in place barring those activists from releasing the materials publicly.

U.S. District Court Judge William Orrick said Tuesday that he would not prevent activist David Daleiden and the Center for Medical Progress from complying with the subpoena issued last month by House Oversight and Government Affairs Committee Chairman Jason Chaffetz.

"Congress has the power to investigate, and it is not up to the courts to go beyond the narrow confines of determining that the committee’s inquiry is in its province. ... Nor may courts assume (and I do not assume) that an unworthy purpose prompts a congressional act," Orrick wrote in his order (posted here). "And, importantly in our Constitutional system, there are three equal branches of government, and courts should refrain from creating needless friction with a coordinate branch of government."

The videos in dispute are part of a broader set of videos that have prompted national controversy and led to Republican calls for the defunding of Planned Parenthood. The footage already made public shows doctors and other clinic personnel discussing details of fetal tissue donation practices while dining at restaurants.

Acting on a request from the National Abortion Federation, Orrick issued a temporary restraining order against publication of videos taken at the organization's conventions as well as those depicting members of the group. The judge said there's evidence that the video makers signed non-disclosure agreements saying they would not make such images or information public.

The National Abortion Federation argued that Daleiden would be violating the order if he handed over the videos and that the subpoena was unenforceable at least for now, but the judge said it was permissible for the activist to comply.

"NAF does not argue that the information sought by the subpoena falls outside the 'sphere of legitimate legislative activity' of the House Committee. ... Absent an attempt to exceed that sphere, the Speech and Debate Clause provides immunity to allow Congress to independently perform its legislative duties through its subpoena powers," Orrick wrote. "As explained by the Supreme Court, it is not the Court’s role to determine the legitimacy of the Congressional investigation by looking to the Committee’s motives."

Orrick said he remains concerned about the privacy and safety of NAF members but can't assume that Congress will release the videos just because it has subpoenaed them.

"The 'court cannot assume that Congress will act irresponsibly in regulating or disclosing' the information at issue," he wrote.

In a statement late Tuesday, the National Abortion Federation pointed to a part of Orrick's order that requires Daleiden to give NAF copies of everything being turned over to Congress before it is handed over.

"We do not believe that all of the footage CMP stole from our meetings is responsive to this subpoena, and we urge the Committee to require Daleiden to also turn over all documents and emails relevant to the conspiracy and fraud he committed against NAF and our members,” said NAF President and CEO Vicki Saporta. "We urge Congress to be mindful of the security risks faced by abortion providers, and the need for confidentiality as they conduct their investigation."

Meanwhile, a lawyer for Daleiden praised the judge's ruling.

“The National Abortion Federation has gone to extraordinary lengths to keep David Daleiden’s footage of its annual meetings out of the hands of law enforcement and the Congress,” said Peter Breen, an attorney with the Thomas More Society.

“We’re pleased that the District Court has today decided to allow Congress to seek the unedited footage of the wrongdoing uncovered by David’s investigation. We will continue to urge the District Court to allow David to release more undercover videos featuring the footage from these annual meetings to the public, so that the American people can make their own assessment of the practices of Planned Parenthood and the National Abortion Federation.”

UPDATE (Tuesday, 10:33 P.M.): This post has been updated with comment from Breen and Saporta.

UPDATE 2 (Wednesday, 9:18 P.M.): This post has been updated to reflect NAF's claim that it did not attempt to block Daleiden from turning over the videos to Congress.