More on Feeney and the Speech or Debate Clause

             As suggested in my last post, Judge Kavanaugh’s concurrence in In re Grand Jury (Feeney) rejects the Ray/Rose test as incoherent and unworkable.  He argues that it makes no sense to condition the Speech or Debate protection given to a Member’s communication with the Ethics Committee on the subject matter of the underlying proceeding.  He observes that the Constitution gives each House “expansive authority” to discipline its own Members for improper behavior, whether that behavior is arguably “official” (Ray) or “personal” (Rose).  At least to the extent that a disciplinary proceeding falls within that broad grant of jurisdiction, a Member’s communication with the Ethics Committee should be treated the same regardless of the subject matter of the proceeding.  

            Kavanaugh would replace the Ray/Rose test with a simple proposition: “courts must protect, without qualification, a Member’s speech in an official congressional disciplinary proceeding.”  He argues that this conclusion is required by both the text of the Constitution and by Supreme Court caselaw.  With regard to the former, he contends that a Member’s communication with the Ethics Committee in the context of a disciplinary proceeding is self-evidently “Speech . . . in either House” protected by the Speech or Debate Clause.  It also falls comfortably within the Supreme Court’s description, in Gravel v. United States, 408 U.S. 606, 625 (1972), of the Clause as encompassing matters that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”   

            In my judgment, Kavanaugh is clearly correct in rejecting the Ray/Rose distinction.  It is less obvious, however, that he is correct in treating all Member communications with the Ethics Committee as “speech” protected by the Clause.  One could argue that a Member’s written or oral testimony to the Ethics Committee, while literally “speech,” is not given in the Member’s capacity as a Member (and thus not “an integral part” of the processes by which Members “participate in committee . . . proceedings”), but as a witness to facts relevant to the proceeding.  Thus, the Member’s speech in this capacity should be treated no differently than that of a congressional staffer or private citizen called upon to give evidence.

Consider, for example, an election contest held before the Committee on House Administration. Like disciplinary proceedings, election contests are a judicial function exercised by each House of Congress pursuant to explicit constitutional authority. Following Kavanaugh’s reasoning, the testimony of an incumbent Member in an election contest would be protected by Speech or Debate, while the testimony of the adverse party (i.e., the as yet unsuccessful challenger seeking the Member’s seat) presumably would not be. It would seem more logical, however, to treat the two in the same fashion, reflecting the fact that both are in the same relationship, that of party/witnesses, to the tribunal.

This suggests that the question is more complex than Kavanaugh makes it out to be. It is also worth noting that Kavanaugh’s proposed solution would have a significant impact on the relationship between congressional proceedings and the criminal law. As he acknowledges, it would make it impossible to prosecute Members for false statements made in congressional proceedings. Arguably, this would apply not only to evidence submitted in a disciplinary proceeding, but to Member filings of financial disclosure or travel reports, which are also (literally) “Speech . . . in either House.”

Part of the problem here is the loose connection between the ostensible purpose of Speech or Debate and the way that it has actually been applied by the courts. Kavanaugh notes that the Clause was designed to “assure[] Members of Congress ‘wide freedom of speech, debate and deliberation without intimidation or threats from the Executive Branch.’” (quoting Gravel, 408 U.S. at 616). He does not explain, however, how either the panel’s decision or his proposed solution would achieve that laudable goal.

Consider the fact pattern before the court. Former Congressman Feeney’s troubles originated with a 2003 golfing trip to Scotland that was apparently paid for by lobbyist Jack Abramoff, although Feeney’s travel report failed to disclose this fact.

Under existing doctrine, there is nothing preventing the Justice Department from investigating or prosecuting alleged crimes associated with the trip, such as bribery (if the trip were alleged to be in exchange for an official act), illegal gratuity (if the trip were alleged to be on account of an official act) or filing of a false travel report. To prove such criminal conduct, the Department could introduce evidence of non-legislative official acts performed by Feeney on Abramoff’s behalf (such as intervening with an executive agency) or discussions between Feeney and Abramoff about potential future legislative acts.

It is easy to imagine, therefore, that the Justice Department might use its power to do the very things the Speech or Debate Clause was supposedly designed to prevent. It could seek to intimidate Feeney so that he would become more amenable to the executive branch’s position on certain issues. It could seek to retaliate against Feeney because it disliked his legislative positions or actions or because it disapproved of his relationship with Abramoff. It could seek to weaken him politically so that he could be defeated in the next election.

Given these existing options for prosecutors, it is hard to see how the panel’s decision makes Feeney less vulnerable to executive branch intimidation or threats. It makes it marginally more difficult for prosecutors to gather evidence, but nothing in the decision (or in Kavanaugh’s rationale for the decision) prevents the government from directly investigating or prosecuting Feeney for conduct related to the Scottish trip.

One might argue that prohibiting the government from subpoenaing a Member’s statements to the Ethics Committee would protect the independence and autonomy of the Committee itself, as opposed to the individual Member. The Committee might fear that prosecutors will, in effect, second guess its decisions, drawing different conclusions from the same evidence. The Committee might also find it more difficult to obtain evidence if witnesses were worried that their testimony could be subpoenaed by federal prosecutors. (I suspect that House Counsel, which filed an amicus brief in the Feeney case, made an argument along these lines).

The problem with this argument, however, is that the panel decision is both underprotective and overprotective from the standpoint of these concerns. It is underprotective because it applies only to a subpoena for the testimony of a Member; it does not prevent prosecutors from issuing subpoenas to the Ethics Committee witnesses or otherwise seeking to probe the workings of the Ethics Committee.

More important, the decision overprotects the Ethics Committee’s interests in autonomy. It does not merely prevent prosecutors from obtaining or using information without the consent of the Committee. (This is unlike, for example, the Third Circuit case where prosecutors sought to subpoena information regarding former Congressman McDade directly from the Ethics Committee and the court upheld the Committee’s assertion of Speech or Debate). Under the panel’s ruling, prosecutors would be unable to use a Member’s testimony even if the Ethics Committee voluntarily turned it over to prosecutors, something that is explicitly contemplated by House Rules.

This means that the only interest truly protected by the panel’s ruling is Feeney’s interest in a “wide freedom of speech” with respect to his communications with the Ethics Committee. This seems like a peculiar interest to protect. When a Member is providing factual information to a congressional committee performing a judicial function, we expect him, like other witnesses, to provide the truth, the whole truth, and nothing but the truth, something which is antithetical to the notion of exercising a “wide freedom of speech.”

Having said all this, I remain troubled by the subpoenas to Feeney’s lawyers. But the reason that I am troubled is that the subpoenas were seeking information which is confidential under House Rules and which those rules provide is to be released to federal prosecutors only upon an affirmative vote of two-thirds of the Ethics Committee. See House Rule XI, 3(a)(3). This is a problem that should be addressed through a separation-of-powers analysis. It is not an issue that easily fits within the language or purpose of the Speech or Debate Clause.

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