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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.”

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. They’re 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.

“It’s 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 Department’s public integrity section, said the Justice Department does not rely heavily on evidence gathered by the ethics committees in its own investigations.

“I don’t think most prosecutors look to ethics committee statements or investigative work as a major component of their case,” Bunnell said, later adding: “It’s not the prime evidence on which the case is being built. It’s 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 doesn’t come to an end,” Bunnell said, “Oftentimes, that’s how it plays out.”

Attorney Lee Blalack, a partner with O’Melveny & 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 court’s 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 court’s decision will now bring this matter to a close.”

Feeney, who was defeated in his bid for re-election in 2008, was ordered by the House ethics committee in 2007 to repay the cost of his trip to the U.S. Treasury after it determined that he had violated House rules.

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