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The Speech or Debate Clause and Protection of Informal Information Gathering

A couple months ago we discussed the question of whether informal information gathering is a legislative activity protected by the Speech or Debate Clause. As I noted at the time, there is case law suggesting that some informal information gathering is protected, but significant uncertainty as to how one defines the type of information gathering meriting such protection.

An easy case would be a witness interview conducted by committee investigators. Such an interview would be informal in the sense that the witness’s attendance is voluntary, there would (probably) be no transcript of the interview, and there would be no formal procedures for asking questions and making objections. Yet in function and substance such an interview is very similar to a committee deposition, and thus a strong case can be made that it warrants the same level of protection.

Now extend that to a telephone conversation in which a committee investigator calls a witness to ask the same sort of questions. This is even more informal than a scheduled, in-person interview, but if it is clear from the circumstances that the investigator is gathering information for use in a committee investigation, it would make sense to treat it the same way.

The problem comes in trying to extend this principle to the myriad conversations and meetings that a typical committee staffer (or any congressional staffer) would have during the course of a day. These could include discussions with agency officials, constituents, lobbyists, interest groups, government contractors, legislative support staff and many others. During any one of these conversations a staffer might gather some information of potential use to the committee’s investigatory and oversight activities, but the same conversation might cover many other matters, such as constituent complaints, efforts by lobbyists and others to obtain contracts, favors or other benefits from the legislative or executive branches, or “cajoling” of agencies by members of Congress. One might also distinguish between the type of general background information that might be covered in a typical agency briefing and specific information that might be obtained from a fact witness on a matter the committee is investigating.

One question that might be asked is whether any statements made by the outside individual to the congressional staffer would be covered by the False Statements Act, 18 U.S.C. 1001, which criminalizes false statements to Congress in the course of “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.” That section would seem to presume some sort of structure or formality to connect the false statement to the investigation or review, as opposed to statements that might be made in the course of impromptu conversations with congressional staff.

An interesting recent case on this issue is Williams v. Johnson, Civ. Action No. 06-2076, in which the plaintiff, an employee of the DC Department of Health, sued the DC Government for allegedly retaliating against her for remarks she made in testimony before the DC Council Committee on Health and in a separate meeting with the chairman of that committee, David Catania, and two of his aides. She subpoenaed Catania and one of his aides to testify and produce documents related to these events, and they moved to quash on the basis of DC’s Speech or Debate statute, which has been interpreted to provide the same protection as the federal Speech or Debate Clause.

During a routine oversight hearing, plaintiff responded to several questions from Catania regarding a major software project that her agency was involved in. Her answers, according to the plaintiff, demonstrated that the software project was a major failure and caused Catania to wonder whether some sort of fraud had taken place. Subsequently, Catania and his aides met with plaintiff and her husband to discuss the software contract and alleged retaliation by the plaintiff’s agency superiors for her DC Council testimony.  Catania then directed his staff to start an investigation of the software contract.

Judge Kollar-Kotelly ruled that Catania and his aide were protected by Speech or Debate both with respect to the committee hearing and the private meeting with Catania. The immunity with respect to formal activities such as the committee hearing was straightforward, but the court acknowledged “the question of whether informal investigations and information-gathering is equally covered . . . is less clear.” However, Judge Kollar-Kotelly, following the decision of Judge Bates in Jewish War Veterans v. Gates, 506 F. Supp. 2d 30,(D.D.C. 2007), concluded that “investigation and information gathering by a legislator—whether formally or informally conducted—is protected by the Speech or Debate Clause ‘so long as the information is acquired in connection with or in aid of an activity that qualified as ‘legislative’ in nature.’” (quoting Jewish War Veterans at 57).

In holding that the private meeting was covered by Speech or Debate, the court emphasized that the meeting was “to discuss a matter that was raised at the hearing and to receive information concerning alleged wrongdoing at an agency that is under Councilmember Catania’s oversight responsibility.” Although it “occurred outside the formal setting of a committee room,” the court found that this type of acquiring of information to be a “necessary concomitant” of legislative activity and therefore within the protection of the privilege.

The result in Williams seems correct, as meeting with a whistleblower to discuss potential wrongdoing at an agency within the committee’s jurisdiction should be protected by Speech or Debate. But while the court’s opinion suggests a relatively expansive approach toward protecting informal information gathering, it stops well short of protecting all conversations in which committee members or staff might gather useful information.

The Williams case is currently on appeal to the D.C. Circuit, where it was argued last month. It is not clear whether the court of appeals will need to reach the Speech of Debate issues.

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