While it remains to be seen whether the court will conduct an en banc review neither senior Judge Stephen Williams nor Judge Douglas Ginsburg signed the concurring opinion the recent decision could add to numerous hurdles that the Justice Department already faces when seeking to prosecute a Member of Congress.
Each time the court rules on the Speech or Debate Clause, they seem to put another nail in the coffin in constraining the Department of Justice in looking into the conduct of legislators, said Ken Gross, an ethics attorney at Skadden, Arps, Slate, Meagher & Flom. It presents a significant uphill battle.
Citizens for Responsibility and Ethics in Washington Executive Director Melanie Sloan said: This circuit is taking a very expansive view. Theyre increasingly narrowing Justice Department options for prosecutions of these Congressmen who violate the law.
But criminal defense attorney Stan Brand, a former House counsel, noted that the Justice Department already confronts Speech or Debate whenever it targets a Member of Congress.
Its the same problem the department has in all these cases and has always had. They have to find ways to make criminal cases without drawing in legislative acts, Brand said. Despite all their remonstratives, they are able to bring cases and get convictions.
Moreover, Bunnell, also a former trial attorney in the Justice Departments public integrity section, said the Justice Department does not rely heavily on evidence gathered by the ethics committees in its own investigations.
I dont think most prosecutors look to ethics committee statements or investigative work as a major component of their case, Bunnell said, later adding: Its not the prime evidence on which the case is being built. Its more secondary or reinforcing.
While the ethics committees may work voluntarily with the Justice Department, he said, the House or Senate often deny requests for information.
If they say no, the world doesnt come to an end, Bunnell said, Oftentimes, thats how it plays out.
Attorney Lee Blalack, a partner with OMelveny & Myers who has represented Representatives and Senators, was among those who praised the decision and favored a potential review by the full court.
The outcome of the decision and the reasoning of the majority opinion is the correct one in my view because it applies precedent appropriately, Blalack said.
Similarly, Rob Walker, an attorney with Wiley Rein who previously served as chief counsel of the House ethics committee and then the Senate Ethics Committee, called the decision necessary to the functioning of the ethics committee.
To rule otherwise would [allow] the executive branch to make use of legislative branch disciplinary proceedings for a purpose that I think can violate the separation of powers, Walker said.
In a statement issued through the law firm Zuckerman Spaeder, Feeney who is not identified by name in court documents did not address legal ramifications of the case but praised the courts decision.
I am grateful for the unanimous decision of the United States Court of Appeals. I have said all along that I engaged in no wrongdoing in connection with my trip to Scotland while a Member of Congress, Feeney said. I hope that the courts decision will now bring this matter to a close.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.