The D.C. Circuit issued a significant Speech or Debate ruling last month in a case involving former Congressman Tom Feeney. Feeney had been investigated by the House Ethics Committee for accepting a privately financed trip which allegedly violated House Rules because it was paid for by a lobbyist and/or was “substantially recreational in nature.”
After the ethics investigation was closed, federal prosecutors began looking into the matter. Grand jury subpoenas were issued to Feeney’s lawyers seeking information about the statements that Feeney had made to the Ethics Committee (although it is not clear from the opinion, it appears that the investigation may have focused on whether these statements were truthful). Feeney and his lawyers moved to quash the subpoenas based on the Speech or Debate Clause. The district court denied the motion, holding that “the congressman was not acting in his legislative capacity but in his personal capacity as a witness to facts relevant to the Committee’s investigation.”
At first glance, the district court’s conclusion would appear to be well-supported by the D.C. Circuit’s decision in United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994). Rose involved a congressman who was sued by the Justice Department for filing false financial disclosure statements that failed to disclose personal loans he had received from his campaign and other sources. The suit relied upon the congressman’s testimony before the House Ethics Committee, which had previously investigated the same issue. The court rejected the argument that this use of the testimony violated the Speech or Debate Clause, noting that the congressman’s testimony did not relate to pending legislation but to his handling of personal financial transactions. It concluded that he “was acting as a witness to facts relevant to a congressional investigation of his private conduct; he was not acting in a legislative capacity.”
In reaching this conclusion, however, the Rose court had to distinguish a prior D.C. Circuit decision, Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978), which held that a Senator’s letter to the Senate Ethics Committee was protected by Speech or Debate. In that case, the Senator was responding to allegations that he had misused Senate rooms by reserving them for the use of his wife’s clients. The Ray court stated that “[i]n responding to a Senate inquiry into an exercise of his official powers, Senator Proxmire was engaged in a matter central to the jurisdiction of the Senate.” The Rose court seized upon this reference to the Senator’s “official powers,” finding that Rose’s testimony, in contrast, related to personal financial transactions rather than the use of “official powers.”
This distinction, however, makes little sense. In the first place, it is clear that the ethics committee has jurisdiction over alleged improper filings of financial disclosures, and it is difficult to see why such matters are any less “central to the jurisdiction” of the House or Senate than other allegations of improper conduct by Members. Second, it is not at all obvious how one concludes that misuse of Senate rooms is more “official” than improper filing of financial disclosures. In the former case, the Member allegedly misused an official power for personal gain, while in the latter the Member allegedly failed to perform an official duty for personal benefit. Why this makes a difference for purposes of Speech or Debate protection is not explained by the Rose case.
The application of this distinction to the facts of the Feeney case is not self-evident either. The government argued that the ethics investigation concerned a “personal” matter, i.e., Feeney’s receipt of a privately funded vacation in violation of House Rules. During the course of the ethics investigation, however, Feeney had argued that his trip was for purposes of legislative fact-finding. The D.C. Circuit found that this contention (whether or not it was true) transformed the investigation into one of whether Feeney had “abused” his official powers in accepting the trip. It therefore concluded that the case fell on the Ray side of the Ray/Rose line and that Feeney’s statements to the Ethics Committee were protected by Speech or Debate.
Given the incoherence of the Ray/Rose distinction, it is difficult to say with assurance whether the Feeney panel applied it correctly. As Judge Kavanaugh points out in his concurrence, the Ray/Rose test involves “fine slicing of Member’s speech” that engenders confusion and uncertainty. It is worth noting, however, that the Feeney decision may add even more uncertainty and confusion to this area. For example, the panel emphasized the fact that “legislative fact-finding” is itself protected by Speech or Debate. Does this mean that the case would have been decided differently if the alleged official purpose of the trip had been non-legislative (e.g., giving a speech)? It is also impossible to tell from the decision what the relationship was between the statements that the government sought to subpoena and the alleged legislative purpose of the trip. Does the mere fact that the ethics investigation involved an issue of legislative fact-finding mean that all of Feeney’s statements are protected by Speech or Debate, even if they related to other subjects (such as whether the trip was funded by a lobbyist)?
Judge Kavanaugh proposes eliminating the Ray/Rose distinction and replacing it with a simple rule that all Member statements in congressional disciplinary proceedings are protected by Speech or Debates. I will discuss this proposal in a future post. For now I will simply note that there is much force to Kavanaugh’s argument, but it would have very significant implications that need to be carefully considered.
Before leaving the main Feeney decision, it should be noted that it could have implications outside the narrow area of subpoenas for statements made to the Ethics Committee. If the grand jury were investigating whether the privately financed trip constituted a bribe or illegal gratuity, it might be argued, based on the language of this case, that the Speech or Debate Clause prohibits any inquiry into the trip because of the alleged legislative fact-finding purpose. Whether the holding in fact extends so far will have to await future litigation.