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Statements in Ethics Probes Protected

Watchdogs Worry That Decision Limits Probes

Federal prosecutors cannot cull statements made to a Congressional ethics committee for a criminal investigation without violating the Constitution’s Speech or Debate Clause, a three-judge panel ruled in an opinion released Thursday.

In a late-June decision sealed until last week, the U.S. Court of Appeals for the District of Columbia panel reversed a lower-court ruling, declaring that statements made by then-Rep. Tom Feeney (R-Fla.) to the Committee on Standards of Official Conduct are protected under the Speech or Debate Clause and could not be demanded by the Justice Department in a grand jury investigation.

That decision — as well as a concurring opinion from Appellate Judge Brett Kavanaugh, in which he called for the full court to review existing standards — points to a growing application of Speech or Debate protections by the judicial branch.

“It’s a continuation of a gradual clarification/expansion of the reach of the Speech or Debate Clause,” said Steve Bunnell, a partner at O’Melveny & Myers and former chief of the criminal division of the U.S. Attorney’s Office for the District of Columbia.

In its decision, the court ruled that because an ethics committee investigation into a 2003 golf trip to Scotland probed whether Feeney intended to use his “official power of legislative fact-finding” as he claimed, any written or oral testimony is privileged.

“The congressman’s statements in this case are protected because they were directly spurred by the inquiry into whether he had abused his office to obtain a vacation,” the court wrote.

The U.S District Court for the District of Columbia had earlier ruled — in a decision that has not been released — that the information was not protected because the ethics investigation had initially focused on whether Feeney received “a prohibited personal gift,” rather than whether he had abused his official powers.

Citing the conflicting precedents relied on by both courts, Kavanaugh called for the full court to review the scope of Speech or Debate protections with an eye to expanding the application to all testimony before Congressional ethics panels.

“A Member’s statement to a congressional ethics committee is speech in an official congressional proceeding and thus falls within the protection of the Clause,” Kavanaugh wrote in his concurring opinion.

“Regardless whether the Member’s underlying ‘disorderly Behaviour’ is considered official or personal, the House or Senate’s disciplinary proceedings are official ‘Proceedings’ of the House or Senate,” the opinion continued. “And a Member’s speech in such an official congressional proceeding constitutes ‘Speech ... in either House.’”

Kavanaugh acknowledged that such a ruling could raise concerns within the executive branch but argued it would not prevent prosecutions of Members.

“It’s not as if Members would get a free pass to lie to congressional ethics committees,” Kavanaugh continued. “False statements can constitute a basis for expulsion from Congress or the lesser sanction of censure or reprimand (which, in turn, can augur a defeat at the polls). In all events, any such policy discomfort cannot dictate our resolution of this constitutional issue.”

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