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. Continue reading “The Speech or Debate Clause and Protection of Informal Information Gathering”