Speech or Debate issues in the Menendez investigation

According to a sealed opinion inadvertently and briefly posted on the Third Circuit’s website, two aides to Senator Robert Menendez are refusing to answer certain grand jury questions based on the Speech or Debate privilege. The opinion is no longer available online, but this New Jersey Law Journal article summarizes the issue before the court.

The investigation concerns Menendez’s relationship with a Dr. Melgen, a Florida eye doctor accused of overbilling Medicare by millions of dollars. Melgen also owns a company that contracted to provide x-ray inspection services for shipping containers in the Dominican Republic. The Justice Department is apparently seeking to determine if Menendez intervened with government agencies on behalf of Melgen’s business interests and whether any such actions were related to campaign contributions and personal gifts Melgen provided to the senator. (For more on the investigation, including a quote from me, see this Washington Post article).

The more interesting Speech or Debate issue relates to meetings and discussions that Menendez had with executive branch officials and agencies regarding Melgen’s Medicare billings. The NJLJ article explains:

The government alleges that Menendez and his staff advocated on behalf of Melgen in a June 7, 2012 meeting with Marilyn Tavenner, then acting administrator of CMS; that Menendez later had a follow-up call with Tavenner; and that Menendez and Sen. Harry Reid, D-Nevada, met on August 2, 2012, with Secretary of Health and Human Services Kathleen Sebelius.

The government wants to question a Menendez staffer, Michael Bernard, about these conversations and “other communications between the senator’s office and Alan Reider, Melgen’s lawyer and lobbyist, about the conversations with those officials.” Bernard refused to answer some 50 questions about these subjects based on the Speech or Debate privilege.

It is easy to understand why the district court would have looked askance at this privilege assertion. In Hutchinson v. Proximire, 443 U.S. 111, 121 n. 10 (1979), the Supreme Court stated that “[r]egardless of whether and to what extent the Speech or Debate Clause may protect calls to federal agencies seeking information, it does not protect attempts to influence the conduct of executive agencies….”; see also Doe v. McMillan, 412 U.S. at 313, 93 S.Ct. at 2025 (“Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct `though generally done, is not protected legislative activity.'” (quoting Gravel v. United States, 408 U.S. 606, 625 (1972))).

On its face, a conversation between Senator Menendez and executive branch agencies about Dr. Melgen’s case sounds a lot more like an attempt to influence or cajole the agencies than like an attempt to gather information for use in the legislative process. Moreover, even if the conversation could be characterized as partially for the purpose of informal information-gathering, this alone may not be enough to protect the conversation, for reasons that we have discussed before. Unless every conversation that might conceivably produce useful information is protected, there has to be some more specific showing to tie the conversation to a particular legislative activity, such as a committee investigation. Finally, the attempt to protect discussions with Melgen’s lobbyist seems even more far-fetched. Accordingly, it is not surprising that the district court rejected the privilege assertion.

Nevertheless, Menendez’s lawyer, Abbe Lowell, was able to convince the Third Circuit that there was at least a chance that these conversations were protected by Speech or Debate. The appellate panel distinguished between manifestly legislative acts protected by the privilege and “others, such as informal fact-finding and oversight, [which] are not manifestly legislative and can look like unprotected political acts.” If Menendez can prove that the “predominant purpose” of the conversations in question was to gather information for legislative purposes, rather than to get the agencies to act on Melgen’s behalf, his privilege claim should be sustained. Accordingly, the court remanded the case to the lower court for more specific findings as to the content and purpose of each disputed communication.

It still seems to me to be a long shot that Speech or Debate would protect against disclosure of these communications. But note that if Menendez persuades the court that particular communications are protected by the privilege, the government would be precluded from putting on evidence about these communications at trial, even from executive branch witnesses. This could significantly complicate any prosecution.

The other Speech or Debate issue relates to the government’s attempt to take testimony from Menendez’s former chief counsel, Kerri Talbot as to whether the senator would invoke the Speech or Debate privilege with respect to certain emails sent to CBP regarding Melgen’s business in the Dominican Republic. Talbot refused to answer these questions on the basis of Speech or Debate privilege. This refusal seems to me to be proper, and, even if it isn’t, it is hard to understand what legitimate interest the government has in asking a staffer about this subject. If it wants to know what Menendez’s legal position is, it can ask Abbe Lowell.