Would Speech or Debate Protect Attorney General Sessions from Prosecution?

It is being alleged that Attorney General Sessions gave untruthful testimony in his confirmation hearing. Specifically, in response to a question from Senator Franken about communications between Trump surrogates and representatives of the Russian government in the course of the 2016 presidential campaign, Sessions responded: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.” In fact, Sessions apparently did have two discussions with the Russian ambassador during 2016, although it is unclear whether they discussed anything regarding the election.

For present purposes, we will skip the (serious) issue of whether there is a plausible basis for viewing this testimony as perjury or a material false statement that could be the basis of a criminal prosecution. Assuming that such a basis exists, there is an interesting legal question that arises. Would Sessions be immune from prosecution under the Speech or Debate Clause? For the reasons set forth below, the answer is probably no.

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Virginia Supreme Court Takes on Speech or Debate

The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.

The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.

The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.

Continue reading “Virginia Supreme Court Takes on Speech or Debate”

Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?

A Third Circuit panel recently rejected Senator Menendez’s Speech or Debate appeal, thereby clearing the way for his corruption trial to proceed. United States v. Menendez, No. 15-3459 (3d Cir. July 29, 2016) (slip opinion). Menendez, it is reported, may seek further review from the full Third Circuit and/or file a petition for certiorari with the Supreme Court. While the court’s conclusion is no surprise, its reasoning raises some questions which could be fodder for Supreme Court review.

To briefly recap the facts, Menendez is accused of having intervened with the executive branch on behalf of one Dr. Salmen Melgen in exchange for personal gifts and campaign contributions. For example, Menendez allegedly sought to persuade/pressure executive officials to drop a Medicare fraud investigation into Melgen’s billing practices.

Continue reading “Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?”

Update on SEC v. Ways & Means

Judge Gardephe has granted the House’s motion for a state pending appeal of his order enforcing the SEC’s administrative subpoenas to the House Ways & Means Committee and its former staffer. In addition to finding that the balance of hardships weighed in the House’s favor (which seems fair), the court found there to be a “serious question” going to the merits of the legal dispute between the parties.

As far as one can tell from the stay ruling, this “serious question” relates to how the court applied the Speech or Debate privilege to the information sought by the subpoenas. The only specific issue mentioned, however, is “whether the Speech or Debate Clause provides a non-disclosure privilege for ‘legislative act’ documents.” Since the court resolved that issue in the House’s favor, it seems odd it would count as a serious question justifying a stay of the court’s ruling.

In any event, it looks like the Second Circuit will get a crack at this interesting case.

House Mulls Appeal of SEC Subpoena Decision

Judge Gardephe of the federal district court for the Southern District of New York has issued his long-awaited ruling in SEC v. Committee on Ways & Means, an enforcement action by the SEC to require the House committee and its former subcommittee staff director to comply with administrative subpoenas. The court rejected the House’s broadest arguments (by which it sought to avoid compliance with the subpoenas entirely), but it issued guidelines allowing the House to withhold certain information pursuant to the Speech or Debate Clause. The House was initially given ten days to comply with the subpoenas as limited by the court’s ruling (which would have meant complying during the week of Thanksgiving).

Personally, I think the decision was about as favorable to the House as reasonably could be expected (with one exception, which I will get to in a minute). It should have been no surprise that the court rejected the House’s sovereign immunity argument (see here and here). Judge Gardephe surveyed prior case law on inter-branch subpoenas and flagged House Rule VIII, which expressly mandates compliance with administrative subpoenas. See op. at 12-18. He concluded: “Given that no court has ever held that sovereign immunity applies to an inter-branch subpoena, and given that House rules appear to acknowledge that no blanket sovereign immunity applies to an administrative subpoena issued by a Federal agency to the House, a House member, or House staff, this Court concludes that sovereign immunity has no application here.” Id. at 18. Moreover, even if sovereign immunity applied, the court found that Congress waived it for these purposes by passing the STOCK Act. Id. at 21.

On Speech or Debate, the court agreed with the House on two key issues. First, it agreed that the Clause provides a non-disclosure privilege for documents reflecting legislative acts, disagreeing with the Third and Ninth Circuit position that Speech or Debate is merely a non-use privilege with regard to documentary evidence. Op. at 63. The court noted: “Whether an Executive Branch subpoena seeks testimony from a Member concerning a ‘legislative act’ or documents that fall ‘within the sphere of legitimate legislative activity’ is, in this Court’s view, immaterial under the Speech or Debate Clause. . . . The issuance of such subpoenas, and a judicial practice of enforcing them, also presents a significant risk of intimidation, and upsets the checks and balances the Framers envisioned, and put in place.” Id. at 58.

Second, the court agreed that the Speech or Debate Clause protects both formal and informal legislative information gathering. Op. at 58. Although the court did not define precisely the outer boundaries of informal information gathering, it seemed to take a broad view of this activity, explicitly noting that it would “extend to a legislator’s gathering of information from federal agencies and from lobbyists.” Id. at 49. Thus, for example, communications from the Greenberg law firm to Brian Sutter, the committee staffer, could be protected if they were part of the committee’s “informal information gathering concerning a matter that might be the subject of legislation.” Id. at 64.

These victories may not benefit the House much in the short term because the court’s opinion allows the SEC to obtain the information it primarily seeks, i.e., whether Sutter tipped off a Greenburg lobbyist as to a pending decision on Medicare reimbursement rates. (This result is not surprising either.) But over the longer term the court’s language and reasoning provide a useful precedent for House lawyers seeking to protect the institution from intrusive subpoenas.

There is, however, one exception. The court ordered the House to provide a privilege log for any documents that it withheld on the basis of the Speech or Debate privilege. House and Senate lawyers have always resisted providing such logs, arguing that requiring them itself intrudes on the privilege. As far as I know, neither the House nor Senate has provided such a log in the past. Requiring them as a routine matter, at least, would place a burden on Congress’s exercise of the privilege that its counsel would rather avoid.

In any event, the House has requested an extension of time to comply with the court’s order, stating that it needs to consider whether or not to appeal. Citing both the sovereign immunity and privilege log issues in particular, the House explains that the court’s ruling presents “multiple issues of tremendous institutional importance to the U.S. House of Representatives, and our structure of government in general.”

In response to the House’s request, Judge Gardephe has extended the deadline to December 7. Stay tuned.

Government Not Impressed by Menendez’s “Policy” Approach to Speech or Debate

The government has filed its brief in opposition to Senator Menendez’s Speech or Debate arguments. A fuller analysis will have to wait, but the arguments look to be pretty much as I expected.

From the brief’s conclusion:

Defendant Menendez’s broad, unprincipled interpretation of the Speech or Debate Clause is a blueprint for immunizing criminal activity on Capitol Hill. Under defendant Menendez’s interpretation, all a Member of Congress—or staffer—would have to do in order to shield his illegal activity from criminal prosecution is insert the word “policy” into a corrupt conversation, mention an unrelated bill in an unlawful email, write something legislative on a calendar entry for an illicit gathering, threaten to hold a hearing at the conclusion of a meeting, or ask for a briefing at the end of an effort to influence the Executive Branch.

Will Senator Menendez’s Speech or Debate Gambit Work?

Last week Senator Menendez’s legal team moved to dismiss all of the charges against him on the ground that they depend on evidence protected by the Speech or Debate Clause. The key issue is whether the Clause’s protection applies to certain meetings and communications between Menendez (and/or his staff) and executive branch officials, including Secretary of HHS Kathleen Sebelius and Marilyn Tavenner, the head of the Center for Medicare and Medicaid Services (CMS).

The prosecution alleges that Menendez was attempting to pressure the executive branch into making policy changes for the benefit of Dr. Salomen Melgen, a close personal friend who had given the senator significant campaign contributions and personal gifts. In the case of Sebelius and Tavenner, for example, Menendez questioned CMS’s prohibition on multi-dosing of the drug Lucentis, a policy that exposed Melgen to significant legal and financial jeopardy.

Menendez does not dispute that Melgen brought the Lucentis issue to his attention, but he argues that this does not prevent his communications with the executive branch from constituting protected legislative oversight. His brief states:

Senator Menendez serves as a member of the Committee on Finance, which oversees HHS and CMS. In June 2009, Senator Menendez alerted his staff to a Medicare issue concerning his “close personal friend,” Dr. Melgen, and his staff then began investigating the issue. Throughout their entire investigation, the prosecutors failed to grasp the policy issues at stake and wrongly concluded that because Dr. Melgen was using facts personally known to him in his administrative matter that he must have been asking for his friend to intervene in his case. Nothing could be further from the truth, and discovery bears out that Senator Menendez made no effort to ever intervene in Dr. Melgen’s pending matters. The issues from Dr. Melgen’s case highlight a broader policy question of this Administration’s actions that benefit pharmaceutical companies while discounting issues experienced by practicing physicians—a policy question that falls squarely within Senator Menendez’s oversight responsibilities as a member of the Senate Finance Committee.

Menendez Br. at 13-15 (citations omitted).

To prevail on this motion, Menendez will likely have to persuade the court of two propositions, each of which is fairly considered a long shot. The first is a procedural/evidentiary point about how the court should evaluate whether the senator’s executive branch communications were protected legislative activity, on the one hand, or unprotected “constituent service,” on the other. Menendez seems to argue that so long as his communications were ostensibly about policy issues, rather than a particular individual or case, they are protected even if they were actually motivated by a desire to help that individual (and, presumably, even if the executive branch officials understood this to be the senator’s primary or sole objective). See Menendez Br. at 8 (“Courts must examine the substance of the communications themselves to determine whether the communications are apparently legislative activity and thus immunized by the Speech or Debate Clause.”) (emphasis in original); id. at 9 (“An errand on behalf of an individual that does not require a change in policy would be unprotected case work . . ., but the appearance of a broader policy issue changes the Speech or Debate analysis entirely.”) (emphasis added).

This position seems to me to be more lenient toward the assertion of Speech or Debate than previously enunciated in the caselaw, including by the Third Circuit’s interlocutory opinion in the Menendez investigation itself. There the court seemed to think that the actual purpose of the communications, not merely their ostensible policy content, was relevant to the Speech or Debate analysis. See In re Grand Jury Invest. (Menendez), slip op. at 4-5 & n. 3 (3d Cir. Feb. 27, 2015). Because Menendez’s communications were not “manifestly legislative acts,” the Third Circuit held, the district court must make specific factual findings about the legislative or non-legislative character of the communications. To the extent the communications had both a legislative component (e.g., gathering information for legislative purposes) and a non-legislative component (e.g., attempting to influence how the agencies treated Melgen’s case), the court instructed that these components should be separated, if possible, and if not the district court “must ascertain the nature of the act or communication by assessing its predominant purpose.” Id. at 5.

This language suggests that Menendez’s communications will not be protected if their predominant purpose was to benefit Melgen, even if they were phrased in purely policy terms. Put another way, a member cannot obtain Speech or Debate protection for his otherwise unprotected constituent service merely by avoiding any explicit reference to the actions he wants the agency to take. Cf. U.S. v. Blagojevich, slip op. at 12 (7th Cir. July 21, 2015) (“’Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion under the Hobbs Act, just as it can furnish the gist of a Monty Python sketch.”).

The second questionable part of Menendez’s argument is the proposition that attempts to influence executive agencies are protected by Speech or Debate if they qualify as legislative oversight. As I noted in a previous post, and as the Third Circuit explained in U.S. v. McDade, 28 F.3d 283, 300 (3d Cir. 1994), the Supreme Court has often stated that attempts to influence the executive branch do not fall within the Speech or Debate Clause. Menendez does not explicitly refer to this caselaw, but he presumably will argue that the Court’s broad language should be read as applying only to routine casework for constituents, not to efforts to monitor or guide an agency on matters of policy, particularly by a member of a committee with jurisdiction over the subject.

The court found it unnecessary to resolve this issue in McDade and the recent Menendez panel did not address it directly. It seems unlikely to me that the facts of the Menendez case provide a good vehicle for establishing a “legislative oversight” exception to the general rule laid down by the Supreme Court. But it is somewhat difficult to disentangle this issue from the first question of whether Menendez’s predominant purpose was to assist Melgen rather than to advance a legislative objective.

All in all, I would rate Menendez’s chances of prevailing on his Speech or Debate motion as slim. As noted in footnote 6 of the senator’s brief, however, an order denying his motion can be immediately appealed. Thus, win or lose at the district court level, Menendez will be able to delay his trial, possibly through the end of the Obama administration, if he so chooses.

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.


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

Senator Ervin on Congressional Discipline and Speech or Debate

I have previously explained that the Speech or Debate Clause does not protect members from discipline by their legislative body, up to and including expulsion. Since the subject arose again in the last couple of days (in the course of a Glenn Greenwald initiated thread on Twitter), it may be worth adverting to Senator Ervin’s argument before the Supreme Court in Gravel v. United States.

Senators Ervin and Saxbe represented the Senate as amicus curiae in the case, and the Court gave the Senate time during oral argument. Ervin’s argument stressed that the Senate “holds no brief” for Senator Gravel or his actions (i.e., reading of the classified Pentagon Papers in a subcommittee meeting). He acknowledged that Gravel’s actions may have been improper and/or in violation of Senate rules, but he contended that the Constitution places these questions exclusively within the jurisdiction of the Senate.

Senator Ervin stressed that a member of Congress is “not accountable” to the executive or judicial branches for his legislative activity, whether that activity is “regular or irregular under the rules of the legislative body of which he is a member.” In Gravel’s case, those questions were the business only of the Senate itself. In response to a justice who asked “That inquiry or discipline or both is something exclusively for the Senate?,” Ervin responded, “That’s right.”

Pointing out that the Rules of Proceedings and Discipline Clauses are in the section of Article I immediately preceding the section in which the Speech or Debate Clause appears, Ervin reiterated: “Our position is that . . . even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that is a matter for the judgment of the Senate and no other power in our government has the right to make any official pronouncement on that subject.”

Greenwald and his ilk argue that senators who believe (or claim to believe) that classified information should be released should put their money where their mouth is by reading the information on the floor of the Senate, where they would be protected by Speech or Debate immunity from legal punishment (though not from congressional discipline). Whatever one thinks about such congressional “civil disobedience” as a normative matter, I am puzzled that anyone would advocate it when the senators have not yet used, or attempted to use, the established Senate procedure for releasing classified information.