United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2009 Decided June 23, 2009
Unsealed July 9, 2009
No. 08-3056
IN RE: GRAND JURY SUBPOENAS
Appeal from the United States District Court
for the District of Columbia
(No. 1:07mc00319)
Before: GINSBURG and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge KAVANAUGH.
GINSBURG, Circuit Judge: The Ethics Committee of the
United States House of Representatives opened an
investigation into whether a certain congressman had violated
House Rules by accepting private funding for a trip; the
congressman maintained the trip was primarily for the
purpose of legislative fact-finding. After the Committee had
closed the matter, the Government began an investigation into
certain statements the congressman made in his responses to
the Committee. Grand jury subpoenas were served upon the
law firm and upon the individual lawyers who represented the
congressman before the Ethics Committee. The congressman
moved to quash the subpoenas on the ground, among others,
2
that they called for testimony and documents protected by
Article I, Section 6, the Speech or Debate Clause, of the
Constitution of the United States, which says of senators and
representatives that “for any Speech or Debate in either
House, they shall not be questioned in any other Place.” The
district court denied the motion to quash, and the
congressman sought review in this court. We hold the
congressman’s statements to the Ethics Committee are
protected by the Speech or Debate Clause. Accordingly, the
order of the district court denying the motion to quash is
reversed, and the district court is directed to enter an order
consistent with this opinion.
I. Background
The congressman contacted the Ethics Committee in
response to press reports about a trip he had taken. The
Committee informed the congressman in writing that it was
investigating allegations that the trip may have constituted an
illegal gift because it was financed by a lobbyist or was
substantially recreational in nature. The Committee explained
that “if true, this course of conduct may implicate several
laws and rules applicable to the conduct of House
employees,” such as the rule prohibiting the acceptance from
a registered lobbyist of expenses for travel “in connection
with his duties as an officeholder” and acceptance of travel
expenses from any source for an event which is “substantially
recreational in nature.” House Rule 25, cl. 5(b). The
Committee invited the congressman to respond to the
allegations and recommended his response include details
about the trip and about his understanding as to the sources of
payment therefor.
The congressman retained a law firm to represent him
before, and to prepare and submit a response to, the Ethics
3
Committee. His lawyers’ first submission explained that the
congressman had “participated in what was described to him,
in advance, as a privately sponsored fact-finding trip”; they
also recounted his understanding of who was sponsoring the
trip and his recollection that he paid personally for his
recreational activities. In response to a second letter from the
Committee, his attorneys described the congressman’s
activities related to legislative fact-finding while on the trip.
The Ethics Committee closed its inquiry with a brief public
statement that “the trip did not comply with House rules and
[the congressman] has agreed to resolve the matter by paying
the cost of the trip to the United States Treasury.”
Shortly thereafter, the grand jury began its investigation
and a government lawyer told the congressman’s attorneys
that he and his colleagues wanted to interview the
congressman about statements in the letters the
congressman’s attorneys had submitted to the Committee.
When the congressman declined to be interviewed, the
congressman’s lawyers were served with grand jury
subpoenas for testimony and documents related to their
representation of the congressman before the Ethics
Committee and their preparation of the submissions made on
his behalf. The lawyers moved to quash on the grounds of
attorney-client privilege and the work product doctrine. The
congressman intervened, adopted his lawyers’ arguments, and
moved to quash on the additional ground that the documents
and testimony sought were protected from discovery by the
Speech or Debate Clause.
The district court denied the motions to quash. With
respect to the Speech or Debate Clause, the court reasoned
that in responding to the Ethics Committee’s inquiry, the
congressman was not acting in his legislative capacity but in
his personal capacity as a witness to facts relevant to the
4
Committee’s investigation. An adverse determination of the
sort before us under the Speech or Debate Clause being
immediately appealable under the collateral order doctrine,
see United States v. Rostenkowski, 59 F.3d 1291, 1297 (D.C.
Cir. 1995), the congressman filed a notice of appeal from that
portion of the district court’s order rejecting his invocation of
the Speech or Debate Clause.
II. Analysis
To reiterate, the Constitution says of senators and
representatives that “for any Speech or Debate in either
House, they shall not be questioned in any other Place.” In
keeping with the purpose of the privilege to “prevent
intimidation by the executive and accountability before a
possibly hostile judiciary,” United States v. Johnson, 383 U.S.
169, 181 (1966), without unduly infringing “the rights of
private individuals,” Gravel v. United States, 408 U.S. 606,
624 n.15 (1972), the Supreme Court has interpreted the
immunity as applying only to “legislative acts,” including
matters that are “an integral part of the deliberative and
communicative processes by which Members participate in
committee and House proceedings,” id. at 624-25.
Legislative fact-finding is therefore a protected activity.
McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C. Cir.
1976). Drawing upon the reasoning of the Supreme Court in
Gravel, which concerned “things done by [a] Senator’s agent
or assistant which would have been legislative acts, and
therefore privileged, if performed by the Senator personally,”
408 U.S. at 616, the district court held a congressman may
“assert the Speech or Debate Clause to bar compelled
disclosure of testimony or documents from his attorney about
the congressman’s legislative acts.” The Government does
not contest that ruling. The Government does argue,
however, that statements the congressman made in response
5
to the Ethics Committee’s inquiry into whether his trip
constituted an unlawful gift are not legislative acts and are
therefore outside the scope of the Clause.
This court has considered twice before whether a
congressman’s statements to a congressional ethics committee
are protected by the Speech or Debate Clause. In Ray v.
Proxmire, 581 F.2d 998 (1978), the plaintiff sued a senator
for making an allegedly libelous statement in a letter he
submitted to the Senate Ethics Committee, which was
investigating whether he had misused Senate rooms to benefit
his wife’s travel business. The senator had allegedly arranged
for the use of Senate rooms by his wife’s clients as they
toured Washington, D.C. The court held the statements
protected by the Speech or Debate Clause:
In 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 .... There is no
indication that he disseminated his letter to
anyone whose knowledge of its contents was
not justified by legitimate legislative needs.
Nor is there any suggestion that the statement
objected to intimated anything not reasonably
spurred by the subject of [the] inquiry.
Id. at 1000.
United States v. Rose, 28 F.3d 181 (1994), was a civil
action in which the Government charged a congressman with
knowingly filing false financial disclosure statements. The
complaint relied upon testimony Rose had given to the House
Ethics Committee. Although the defendant’s obligation to
disclose his financial information was based upon his status as
6
a congressman, the court held the Speech or Debate Clause
inapplicable because the committee was not inquiring into the
“exercise of [his] official powers.” Id. at 189 (quoting Ray,
581 F.2d at 1000). The court explained:
The testimony was not addressed to a pending
bill or to any other legislative matter; it was,
instead, the Congressman’s defense of his
handling of various personal financial
transactions. In short, Congressman Rose was
acting as a witness to facts relevant to a
congressional investigation of his private
conduct; he was not acting in a legislative
capacity.
Id. at 188 (internal citation omitted). Senator Proxmire’s
letter, in contrast, was his “response to an allegation that [he]
had misused Senate rooms, an allegation that directly touched
the institution of the Senate and raised a possible violation of
Senate Rules.” Id. at 189.
In the present case, the Government argues Rose rather
than Ray controls because the congressman was responding to
an inquiry not into the exercise of his official powers but
merely into his “receipt of a prohibited personal gift,” a
recreational vacation. But that begs the question whether the
congressman was exercising his official power of legislative
fact-finding, which was precisely the issue the Ethics
Committee was trying to resolve.
The first letter the congressman received from the
Committee had described its investigation as looking into the
receipt of an unlawful gift — which, taken alone, might well
have signaled an inquiry into a wholly personal transaction
similar to that in Rose. But the nature of the inquiry was
7
clarified when the congressman claimed the trip for which he
had received private sponsorship was for the purpose of
legislative fact-finding. The Committee’s inquiry thereafter
was directed to whether the trip was an exercise of the
congressman’s official powers or an abuse of those powers,
i.e. a privately sponsored vacation.
Just as Senator Proxmire’s “allegedly defamatory
statement” about a local travel business, Ray, 581 F.2d at
1000, was protected by the Speech or Debate Clause because
it was “reasonably spurred by the subject of [the] inquiry”
into whether he had abused his office to help his wife’s travel
business, the congressman’s statements in this case are
protected because they were directly spurred by the inquiry
into whether he had abused his office to obtain a vacation.
The statements at issue in Rose, by contrast, concerned his
“personal loans” and “personal financial transactions,” 28
F.3d at 188; there was no connection between those
statements and any act done or claimed to have been done in
his legislative capacity.
In sum, this case is controlled by Ray rather than by Rose,
the congressman’s testimony is covered by the Speech or
Debate Clause, and he may “not be questioned in any other
Place” concerning it. The order of the district court denying
the congressman’s motion to quash the subpoenas is,
accordingly,
Reversed.
KAVANAUGH, Circuit Judge, concurring: I join the
opinion of the Court. I add this concurring opinion to express
my concern about the confusion that has resulted from our
decisions in Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978),
and United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994). The
disarray has prompted all of the competing parties in this case
— the Executive Branch, the House of Representatives, and
an individual Member of Congress — to suggest that the en
banc Court reconsider Ray, Rose, or both. I agree that the full
Court should do so at an appropriate time.
The Constitution’s Speech or Debate Clause provides an
immunity and privilege that protect communications by
Members of Congress in official congressional proceedings.
See U.S. CONST. art. I, § 6, cl. 1 (protecting “Speech or
Debate in either House”). In Ray, however, the Court watered
down the constitutional text and decided that a Member’s
speech in a congressional disciplinary proceeding warrants
protection only if the legislative committee is inquiring into a
Member’s “exercise of his official powers.” 581 F.2d at
1000. Under that approach, the Speech or Debate Clause does
not cover a Member’s speech in a congressional disciplinary
proceeding if the committee is investigating his or her
“private conduct.” Rose, 28 F.3d at 188.
In my judgment, the Ray/Rose test does not accord with
the text of the Speech or Debate Clause and the Supreme
Court’s precedents. A Member’s statement to a congressional
ethics committee is speech in an official congressional
proceeding and thus falls within the protection of the Clause.
See Gravel v. United States, 408 U.S. 606, 625 (1972) (“The
heart of the Clause is speech or debate in either House.”).
The Ray/Rose test not only distorts the constitutional text, but
also creates a host of practical and jurisprudential difficulties
— perhaps best exemplified by the fact that Ray and Rose
reached different results on very similar facts. The en banc
2
Court should replace the Ray/Rose test with a rule that
adheres to the text of the Speech or Debate Clause.
I
A
Article I, Section 6 of the Constitution provides that
“Senators and Representatives . . . shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from
Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from the
same; and for any Speech or Debate in either House, they
shall not be questioned in any other Place.” U.S. CONST.
art. I, § 6, cl. 1 (emphasis added). Drawing on similar
language from the 1689 English Bill of Rights and several
colonial constitutions, the Constitutional Convention
approved the Speech or Debate Clause with no apparent
disagreement. Nor was the Clause the subject of controversy
during the ratification period. See JOSH CHAFETZ,
DEMOCRACY’S PRIVILEGED FEW 74, 87-88 (2007); JOSEPH
STORY, 1 COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES § 863 (1833). As the Framers drafted it, the
Clause helps maintain the separation of powers among the
three Branches. See Kilbourn v. Thompson, 103 U.S. 168,
201-02 (1880); AKHIL REED AMAR, AMERICA’S
CONSTITUTION: A BIOGRAPHY 101-02 (2005). The Supreme
Court has explained that the Clause assures Members of
Congress “wide freedom of speech, debate, and deliberation
without intimidation or threats from the Executive Branch” or
from private citizen suits. Gravel v. United States, 408 U.S.
606, 616 (1972).
Article I, Section 5 of the Constitution, meanwhile,
provides that “Each House may determine the Rules of its
3
Proceedings, punish its Members for disorderly Behaviour,
and, with the Concurrence of two thirds, expel a Member.”
U.S. CONST. art. I, § 5, cl. 2 (emphasis added). This Clause
gives both Houses broad official powers to hold investigations
“for violations of statutory law, including crimes; for
violations of internal congressional rules; or for . . . even
purely private conduct by a Member that, in the House’s
opinion, reflects badly on it as an institution.” CHAFETZ,
DEMOCRACY’S PRIVILEGED FEW, at 210 (citing Congressional
Research Service, Expulsion, Censure, Reprimand, and Fine:
Legislative Discipline in the House of Representatives, at 3
(2002)) (internal quotation marks omitted). The Clause thus
grants expansive authority for each House to discipline and
sanction its Members for improper behavior.
This case involves the intersection of those two clauses of
the Constitution. Specifically, we address whether a
Member’s communications in an official congressional
disciplinary proceeding constitute “Speech . . . in either
House.” U.S. CONST. art. I, § 6, cl. 1.
In my view, the answer is straightforward. Regardless
whether the Member’s underlying “disorderly Behaviour” is
considered official or personal, the House or Senate’s
disciplinary proceedings are official “Proceedings” of the
House or Senate. And a Member’s speech in such an official
congressional proceeding constitutes “Speech . . . in either
House.”1
1
I take it as a given here that “Speech” for purposes of the
Speech or Debate Clause — just as for purposes of the First
Amendment — covers both oral and written communications, and
that the Clause applies to committees in either House and not only
to the chambers in either House. See Kilbourn, 103 U.S. at 204.
4
Therefore, under the text of the Constitution, the speech
at issue in both Ray v. Proxmire, 581 F.2d 998 (D.C. Cir.
1978), and United States v. Rose, 28 F.3d 181 (D.C. Cir.
1994), should have qualified as protected speech. Both cases
involved an official congressional proceeding: an
investigation by the Senate Select Committee on Standards
and Conduct in Ray; and an inquiry by the House Committee
on Standards of Official Conduct in Rose. Both cases
involved a Member’s speech in the official proceeding:
Senator Proxmire’s written communications in Ray; and
Congressman Rose’s oral testimony in Rose. The analysis
need have gone no further. Speech by a Member in an
official House or Senate disciplinary proceeding qualifies as
“Speech . . . in either House” and thus is protected by the
Speech or Debate Clause.
The constitutional text is similarly easy to apply here.
This case concerns written responses submitted by a Member
in an official disciplinary investigation conducted by the
House Committee on Standards of Official Conduct. The
Member’s communications constitute “Speech . . . in either
House” and thus fall within the “heart of the Clause.” Gravel,
408 U.S. at 625.
This result follows not just from the constitutional text
itself but also from principles articulated by the Supreme
Court in its Speech or Debate Clause cases. To be sure, the
Court has not addressed the precise issue raised in this case.
But it has stated that the Speech or Debate Clause extends
both to (i) “Speech or Debate in either House” — the “heart
of the Clause,” as the Court has said, and to (ii) “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
5
other matters which the Constitution places within the
jurisdiction of either House.” Id. at 625 (emphases added). A
Member’s speech in an official House disciplinary proceeding
qualifies under either prong of the Gravel test: Such a
Member not only engages in “Speech or Debate in either
House” but also, by definition, takes part in communicative
processes with respect to matters which the Constitution
places within the jurisdiction of the House.2
B
The Ray Court went off the rails, in my judgment, by
focusing on the subject matter of the underlying disciplinary
proceeding — and by applying a test that grants protection
only when the investigation concerns a Member’s official
conduct, as opposed to his or her personal conduct. See Ray,
581 F.2d at 1000; Rose, 28 F.3d at 188-89. The Court
accordingly deemed Senator Proxmire’s letter privileged
2
The Supreme Court has arguably extended the protections of
the Speech or Debate Clause beyond what its plain text otherwise
might suggest. See Gravel, 408 U.S. at 618, 625; Kilbourn, 103
U.S. at 204. In particular, the Court has held that the Clause covers
not just speech or debate but certain conduct as well — “legislative
acts,” in the Court’s words. See United States v. Brewster, 408
U.S. 501, 512 (1972) (“A legislative act has consistently been
defined as an act generally done in Congress in relation to the
business before it.”); Gravel, 408 U.S. at 625 (“The heart of the
Clause is speech or debate in either House. Insofar as the Clause is
construed to reach other matters, they must be an integral part of
the deliberative and communicative processes by which Members
participate . . . .”) (emphasis added). But the Court has not
interpreted the Clause to provide less protection than the text
establishes. In other words, the Court has never suggested that
actual speech in an official congressional proceeding could
somehow fall outside the protections of the Clause. In my
judgment, however, the Ray/Rose test incorrectly does just that.
6
because the disciplinary proceeding purportedly arose out of
his official conduct — making Senate rooms available for use
by his wife’s business. Later in Rose, however, the Court
found Congressman Rose’s testimony not privileged because
the proceeding purportedly arose out of his personal conduct
— failing to properly report certain liabilities on his official
financial disclosure report.
The Court’s fine slicing of a Member’s speech in those
two cases does not square with the text of the Constitution,
which gives absolute protection to “any Speech” by a
Member in an official congressional proceeding.
Moreover, the Ray/Rose approach creates great
uncertainty. After all, it can be quite difficult to determine
whether an allegation of wrongdoing involves official or
personal acts because the categories often overlap — for
example, when a Member is alleged to have abused his or her
official position for personal gain. Indeed, the results in Ray
and Rose are in great tension with one another; the two cases
reached different results on very similar facts.
The uncertainty caused by the Ray/Rose test is especially
problematic in this context because the scope of a privilege
must be clear and predictable for the privilege to serve its
purpose. As the Supreme Court has said, “An uncertain
privilege, or one which purports to be certain but results in
widely varying applications by the courts, is little better than
no privilege at all.” Upjohn Co. v. United States, 449 U.S.
383, 393 (1981); see also Swidler & Berlin v. United States,
524 U.S. 399, 409 (1998); Jaffee v. Redmond, 518 U.S. 1, 18
(1996). Professor Tribe has persuasively explained this point
with respect to the Speech or Debate Clause:
7
Like any privilege, the one that the Speech or Debate
Clause grants to members of Congress would be virtually
worthless if courts judging its applicability had to
scrutinize very closely the acts ostensibly shielded,
especially if those courts then had to balance the
considerations for and against extending privileged
status. The reason is that any privilege whose criteria of
applicability are fuzzy or multifactored or both offers too
little predictability to its intended recipients for it to
generate the confidence and repose that the privilege will
have been adopted to provide, and sacrifices much of the
privacy and security that the privilege was supposed to
offer in the very process of determining its applicability
in the particular case.
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-
20, at 1017 (3d ed. 2000).
The Ray/Rose test has caused all three Branches great
difficulty. One can hardly fault the esteemed District Judge
or the Legislative and Executive Branch parties in this case
for their efforts to make sense of our conflicting precedents.
Nor can one blame the parties for asking us to resolve the
confusion by overruling at least one of the two cases.
Instead of continuing down the erratic path marked by the
Ray/Rose test, the en banc Court should resolve this issue by
looking to the text of the Speech or Debate Clause. As I read
the Constitution and the Supreme Court’s case law, courts
must protect, without qualification, a Member’s speech in an
official congressional disciplinary proceeding.
8
II
To be sure, the above analysis of this Speech or Debate
Clause issue raises some important questions.
As a policy matter, the Executive Branch suggests that
adhering to the actual text of the Clause in this context may
thwart some criminal investigations and prosecutions — in
particular, cases involving alleged false statements by
Members to congressional ethics committees. That result is
unwelcome; on the other hand, all privileges have the effect
of impeding criminal investigations and the search for truth.
See Swidler & Berlin v. United States, 524 U.S. 399, 406
(1998). And it’s not as if Members would get a free pass to
lie to congressional ethics committees. False statements can
constitute a basis for expulsion from Congress or the lesser
sanction of censure or reprimand (which, in turn, can augur a
defeat at the polls). In all events, any such policy discomfort
cannot dictate our resolution of this constitutional issue. Cf.
Texas v. Johnson, 491 U.S. 397, 420 (1989) (Kennedy, J.,
concurring) (“The hard fact is that sometimes we must make
decisions we do not like.”).
As a jurisprudential matter, the Executive Branch
suggests that this kind of analysis may place too much
emphasis on the actual words of the Speech or Debate Clause;
it would prefer to balance the protections of the Clause
against the interest in preventing and punishing corruption
and false statements. But especially in separation of powers
cases — from Marbury v. Madison to the present — the
Supreme Court has repeatedly stressed that the precise words
of the Constitution control and that courts must not relax the
enduring structural protections contained in the document’s
text. See Clinton v. New York, 524 U.S. 417, 446 (1998)
(“Congress cannot alter the procedures set out in Article I, §
9
7, without amending the Constitution.”); INS v. Chadha, 462
U.S. 919, 945 (1983) (“policy arguments supporting even
useful ‘political inventions’ are subject to the demands of the
Constitution which defines powers and . . . sets out just how
those powers are to be exercised”); Buckley v. Valeo, 424 U.S.
1, 134 (1976) (practical “fears, however rational, do not by
themselves warrant a distortion of the Framers’ work”);
Powell v. McCormack, 395 U.S. 486, 550 (1969) (“in judging
the qualifications of its members Congress is limited to the
standing qualifications prescribed in the Constitution”);
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-77 (1803)
(carefully analyzing precise text of Article III of the
Constitution in concluding that § 13 of Judiciary Act of 1789
is unconstitutional and stating that “all those who have framed
written constitutions contemplate them as forming the
fundamental and paramount law of the nation”).
In short, the Framers drafted and ratified the Speech or
Debate Clause to serve as a robust shield against intimidation
of legislators by the Executive or from private citizen suits.
See United States v. Johnson, 383 U.S. 169, 181 (1966). In
some respects, the Speech or Debate Clause is a counterpart
to the executive privileges that constitute an essential part of
the President’s “executive Power” under Article II and that
protect the President and the Executive Branch from similar
intimidation by the Legislature. In the context of a specific
case, the need for evidence usually will seem weightier than
those long-term structural safeguards. But courts must
respect the constitutional balance between the Legislative and
Executive Branches regardless of the perceived needs of the
moment.
10
***
In my judgment, the Ray/Rose test does not accord with
the text of the Speech or Debate Clause or with the principles
articulated by the Supreme Court in its decisions. And the
test has created considerable confusion — leading the
Executive Branch, the House of Representatives, and an
individual Member of Congress to request that it be overruled.
The test is both unwise in principle and unworkable in
practice. Because of the importance of the Speech or Debate
Clause to the constitutional separation of powers and to the
operations of the Government, I respectfully suggest that, at
an appropriate time, the en banc Court reconsider the
Ray/Rose test and bring this aspect of our Speech or Debate
Clause jurisprudence in line with the constitutional text. As a
three-judge Court, we of course do not have that authority,
and I therefore join the opinion of the Court.