PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 15-3459 

UNITED STATES OF AMERICA 

v. 

ROBERT MENENDEZ, 

 Appellant

 

Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal Action No. 2-15-cr-00155-001) 

District Judge: Honorable William H. Walls

________________ 

Argued February 29, 2016

Before: AMBRO, JORDAN and SCIRICA, Circuit Judges 

(Opinion filed: July 29, 2016) 

Raymond M. Brown, Esquire 

Greenbaum Rowe Smith & Davis LLP

P.O. Box 5600
2

Metro Corporate Campus One, Suite 4

Woodbridge, NJ 07095

Scott W. Coyle, Esquire

Abbe David Lowell, Esquire (Argued)

Christopher D. Man, Esquire

Chadbourne & Parke

1200 New Hampshire Avenue, N.W.

Washington, DC 20036

Jenny R. Kramer, Esquire

Chadbourne & Parke

1301 Avenue of the Americas

New York, NY 10019

Stephen M. Ryan, Esquire

McDermott Will & Emery

500 North Capitol Street, N.W.

Washington, DC 20001

Counsel for Appellant

Joseph P. Cooney, Esquire

 Deputy Chief

Peter M. Koski, Esquire (Argued)

 Deputy Chief

Monique Abrishami, Esquire

Amanda R. Vaughn, Esquire

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W., 12th Floor

Washington, DC 20005
3

Counsel for Appellee

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

A 22-count indictment (the “Indictment”) charges that

from 2006 to 2013 United States Senator Robert Menendez of 

New Jersey solicited and accepted numerous gifts from his 

friend Dr. Salomon Melgen, a Florida-based ophthalmologist. 

In exchange, Senator Menendez allegedly used the power of 

his office to influence, among other things, an enforcement 

action against Dr. Melgen by the Centers for Medicare and 

Medicaid Services (“CMS”) and to encourage the State 

Department and the U.S. Customs and Border Patrol 

(“Customs”) to intervene on Dr. Melgen’s behalf in a multimillion dollar contract dispute with the Dominican Republic. 

Senator Menendez appeals from the denial of his 

motions to dismiss the Indictment. He argues that, as a United 

States Senator, he is protected from prosecution under the 

Speech or Debate Clause of our Constitution. U.S. Const. art. 

I, § 6, cl. 1. Though it states literally that Members of 

Congress “shall not be questioned in any other Place” for 

“any Speech or Debate in either House,” its protections 

extend to “legislative acts” that Members perform. Senator

Menendez contends that protected acts form the basis of the 

Indictment. He claims also that Count 22 of the Indictment—

which charges him with knowingly or willfully falsifying, 

concealing, or covering up gifts from Dr. Melgen in violation 

of the Ethics in Government Act of 1978 (the “Ethics Act”), 5 

U.S.C. app. 4 §§ 101-11, and 18 U.S.C. § 1001—must be 
4

dismissed because it allows other Branches of Government to 

intrude on Legislative Branch matters (a separation-of-powers 

claim) and was brought in the wrong venue (New Jersey) 

instead of where it belonged (the District of Columbia). We 

conclude that Senator Menendez’s purportedly legislative acts 

are not protected by the Speech or Debate Clause and that the 

Indictment is not otherwise deficient. Thus we affirm.

I. Background

A. Senator Menendez, Multi-Dosing, and Dr. 

Melgen’s Dispute with CMS

At the motion-to-dismiss stage, we generally accept as 

true the factual allegations in an indictment. See United States 

v. Huet, 665 F.3d 588, 595 (3d Cir. 2012). Our statement of 

facts is therefore drawn from the Indictment except where it 

is noted as drawn from evidence in the record.

In 2009 CMS suspected that Dr. Melgen had 

overbilled Medicare for $8.9 million from 2007 to 2008 by 

engaging in a prohibited practice known as “multi-dosing.” 

Medicare policy required that each patient receiving the drug

Lucentis be treated using a separate vial, but Dr. Melgen 

routinely used the extra solution from a single vial (so-called 

“overfill”) to treat multiple patients. Because he was 

reimbursed as if he used a separate vial for each patient, CMS 

believed Dr. Melgen was paid for more vials of the drug than 

he actually used.

Before CMS began formal proceedings against Dr. 

Melgen, Senator Menendez instructed his Legislative 

Assistant to call the Doctor about “a Medicare problem we 

need to help him with.” A-105 (Indict. ¶ 148). The Legislative 

Assistant replied that she and the Senator’s Deputy Chief of 

Staff called Dr. Melgen twice and were “looking into how 
5

[they could] be helpful.” Id. (Indict. ¶ 149) (alteration in 

original). After CMS formally notified Dr. Melgen that it may 

seek reimbursement for the suspected overbilling, the 

Senator’s Deputy Chief of Staff emailed the Legislative 

Assistant, “I think we have to weigh in on [Dr. Melgen’s]

behalf . . . to say they can’t make him pay retroactively.” A107 (Indict. ¶¶ 158-59). 

Senator Menendez’s staff continued to work with Dr. 

Melgen’s lobbyist on the CMS dispute and eventually 

arranged for the Senator to speak with Jonathan Blum, the

then- Acting Principal Deputy Administrator and Director of 

CMS. Before that conversation, an official from the United 

States Department of Health and Human Services (“HHS”)

wrote Mr. Blum, “We have a bit of a situation with Senator 

Menendez, who is advocating on behalf of a physician friend 

of his in Florida.” A-108 (Indict. ¶ 166). Meanwhile, Senator

Menendez’s Legislative Assistant drafted “Talking Points”

for the Senator that, along with statements about policy,

included statements like “I was contacted by Dr. Melgen 

regarding an audit by First Coast, the Medicare administrative 

contractor in Florida,” and “I am not weighing [in] on how 

you should administer Lucentis, nor on how his specific audit 

should be resolved but rather [am] asking you to consider the 

confusing and unclear policy on this issue and not punish him 

retroactively as a result.” A-108-09 (Indict. ¶ 167).

Ultimately, the conversation between Senator Menendez and 

Mr. Blum did not resolve Dr. Melgen’s dispute with CMS. 

The following month, after more developments in the case, 

the Senator noted that Dr. Melgen was “still in the non[-]

litigant stage” and directed his Chief of Staff to “determine 

who has the best juice at CMS and [HHS].” A-109 (Indict. 

¶ 173).

Almost three years later, in June 2012, Senator

Menendez discussed multi-dosing with Marilyn Tavenner, the 
6

then-Acting Administrator of CMS. There is some evidence 

in the record suggesting that Senator Menendez and Ms. 

Tavenner met to discuss her nomination to become the 

permanent Administrator of CMS. For example, the Senator’s 

calendar noted that they were meeting about Ms. Tavenner’s 

“nomination before the [Senate] Finance Committee.” A-462. 

However, there is no evidence suggesting that her nomination 

was actually discussed when they met. See A-1313 (Tavenner 

FD-302); A-1254-55 (Martino FD-302).

To prepare for the meeting, the Senator met with Dr.

Melgen’s lobbyist. A handwritten note for Senator Menendez

mentioned Dr. Melgen and his lobbyist by name and

reminded the Senator to “[m]ake the larger policy case” to 

Ms. Tavenner. A-1316. On the other side, Mr. Blum alerted

Ms. Tavenner to Senator Menendez’s interest in Dr. Melgen’s 

case.

Once together, Senator Menendez pressed Ms. 

Tavenner about multi-dosing and advocated on behalf of the 

position favorable to Dr. Melgen in his Medicare billing 

dispute with CMS. Contemporaneous notes reported that 

Senator Menendez and Ms. Tavenner discussed CMS’s multidosing policy but made no mention of Dr. Melgen or his case.

A follow-up call between Senator Menendez and Ms. 

Tavenner took place a few weeks later. Before the call, Dr. 

Melgen’s lobbyist prepared a memorandum entitled “Talking 

Points: CMS Policy” and shared it with the Senator’s staff, 

who incorporated it into a separate memorandum prepared for 

Senator Menendez. A-114 (Indict. ¶ 201). The latter

memorandum noted that “[t]he subject of the call [wa]s to 

discuss the issue [of] Medicare reimbursement when a 

physician multi-doses from a single dose vial,” but it also 

made several references to Dr. Melgen’s case, such as 

“[w]e’re talking about payments made in 2007-2008” and
7

“[i]t’s clear that CMS is taking steps to clarify both multidosing from single-dose vials and overfills going forward. 

This is, in effect, admitting that these policies didn’t exist 

before and don’t apply during the 2007-2008 period. 

Therefore they don’t have any bearing on the issue at hand.”

A-115 (Indict. ¶ 202). To the Government, the “issue at hand” 

was Dr. Melgen.

During the call, Ms. Tavenner said CMS would not 

alter its position on multi-dosing and Senator Menendez 

threatened to raise the issue of multi-dosing directly with 

Kathleen Sebelius, the then-Secretary of HHS who oversaw

CMS. After the call, Dr. Melgen’s lobbyist spoke with one of 

the Senator’s staffers, and the staffer reported to the Senator 

that the lobbyist was “encouraged, but mainly because he’s 

increasingly confident they won’t have a leg to stand on 

should [Dr. Melgen] litigate. But we’re all hopeful it won’t 

come to that.” A-116 (Indict. ¶ 207). The Indictment does not 

allege specifically that Senator Menendez mentioned Dr. 

Melgen by name to Ms. Tavenner.

A week later, the scheduler for the then-Majority 

Leader of the Senate, Harry Reid, arranged a meeting among

Senator Reid, Senator Menendez, and Secretary Sebelius.

Senator Menendez told his staff that he did not want to tell 

Dr. Melgen about the arrangement “so that I don’t raise 

expectation[s] just in case it falls apart,” A-117 (Indict. 

¶ 210), though the Senator met with Dr. Melgen’s lobbyist 

before the meeting and received a summary of the latest 

developments in Dr. Melgen’s dispute with CMS. At the 

meeting with Secretary Sebelius and Senator Reid, Senator

Menendez advocated on behalf of Dr. Melgen’s position in 

the Medicare billing dispute, focusing on his specific case and 

asserting unfair treatment of it. Mr. Blum, who accompanied 

the Secretary to the meeting on behalf of CMS, later told the 

FBI he did not recall anyone mentioning Dr. Melgen by 
8

name, but said it was clear to him that the Senators were 

talking about Dr. Melgen and that the issue with his billing 

“was an isolated issue as opposed to a general problem.” A1136 (Blum FD-302). Senator Reid told the FBI that Dr. 

Melgen’s name probably came up during the meeting because 

his “individual situation was clearly the purpose of the 

meeting and they would have otherwise been speaking in a 

vacuum.” A-1301 (Reid FD-302). Secretary Sebelius told

Senator Menendez that because Dr. Melgen’s case was in the 

administrative appeals process, she had no power to influence 

the matter. 

B. Senator Menendez, Port Security, and Dr. Melgen’s 

Dispute with the Dominican Republic

In February 2012, Dr. Melgen obtained exclusive 

ownership of a contract held by a company in the Dominican 

Republic named ICSSI. The contract gave ICSSI exclusive 

rights to install and operate X-ray imaging equipment in 

Dominican ports for up to 20 years and required all shipping 

containers to be X-rayed at a tariff of up to $90 per container. 

ICSSI and the Dominican Republic disputed the validity of 

the contract and had already begun litigating the issue. 

The following month, a former Menendez staffer who 

worked for Dr. Melgen requested a phone call with Assistant 

Secretary of State William Brownfield to discuss ICSSI’s 

contract. A State Department official reported to the Assistant 

Secretary that the former staffer “dropped the name of Sen.

Menendez pretty squarely as having an interest in [the] case.” 

A-98 (Indict. ¶ 119). That former staffer later met with the 

Assistant Secretary and represented that he (the staffer) spoke 

on behalf of “a United States entity involved in a contract 

dispute with the Government of the Dominican Republic 

concerning the screening of shipping containers at Dominican 
9

ports.” Id. (Indict. ¶ 120). He referenced New Jersey 

connections to the dispute. 

Senator Menendez’s Senior Policy Advisor arranged a 

meeting in May 2012 between the Senator and Assistant 

Secretary Brownfield about U.S. policy relating to Dominican 

port security. At the meeting, Senator Menendez advocated 

for Dr. Melgen’s interest in his foreign contract dispute, 

questioning the Assistant Secretary about the dispute and 

expressing dissatisfaction with the State Department’s lack of 

initiative in the case. Assistant Secretary Brownfield later

summarized the meeting in an email to his staff, noting that 

Senator Menendez “allud[ed] to” a particular company and 

that the Senator threatened to call a hearing if there was no 

solution. A-101 (Indict. ¶ 125).

In June 2012, Senator Menendez’s Senior Policy 

Advisor emailed Assistant Secretary Brownfield’s staff for an 

update on the Dominican port issue. A few days later, the 

Assistant Secretary told his staff that Dr. Melgen’s case “is 

the case about which Sen. Menendez threatened to call me to 

testify at an open hearing. I suspect that was a bluff, but he is 

very much interested in its resolution. A reminder that I owe 

the Senator an answer to the question ‘What can we do to 

resolve this matter?’” Id. (Indict. ¶ 129). Assistant Secretary 

Brownfield later forwarded to his staff another email from Dr. 

Melgen’s representative and wrote, “More on [Senator] 

Menendez’[s] favorite DR port contract case.” A-102 (Indict. 

¶ 131).

Senator Menendez subsequently directed his Chief 

Counsel to ask Customs about its rumored donation to the 

Dominican Republic of equipment for the monitoring and 

surveillance of shipping containers. The equipment would 

have made it easier for the Dominican Republic to increase 

port security without honoring its disputed contract with 
10

ICSSI. The Senator’s Chief Counsel emailed a Customs

employee the following:

My boss asked me to call you about this. 

Dominican officials called him stating that there 

is a private company that has a contract with 

[the Department of Homeland Security] to 

provide container shipment 

scanning/monitoring in the [Dominican 

Republic]. Apparently, there is some effort by 

individuals who do not want to increase security 

in the [Dominican Republic] to hold up that 

contract’s fulfillment. These elements (possibly 

criminal) want [Customs] to give the 

government equipment because they believe the 

government use of the equipment will be less 

effective than the outside contractor. My boss is 

concerned that the [Customs] equipment will be 

used for this ulterior purpose and asked that you 

please consider holding off on the delivery of 

any such equipment until you can discuss this 

matter with us[—]he’d like a briefing. 

Id. (Indict. ¶ 133). The employee responded that Customs was 

not providing the Dominican Republic with any such 

equipment and confirmed with Senator Menendez’s Chief 

Counsel that the “private company” referred to was ICSSI. A103 (Indict. ¶¶ 139-42).
11

C. Senator Menendez’s Financial Disclosures

Under the Ethics Act, Senators are required to file with 

the Secretary of the United States Senate in Washington, 

D.C., an annual financial disclosure form reporting, among 

other things, income, gifts, and financial interests from the 

prior calendar year. While Senator Menendez was subject to 

that obligation, Dr. Melgen and his companies allegedly gave 

the Senator reportable gifts, including “private, chartered, and 

first-class commercial flights,” a car service, and hotel stays 

in Paris, France, and Punta Cana, Dominican Republic. A-135 

(Indict. ¶ 272). Senator Menendez did not disclose any 

reportable gifts from Dr. Melgen in his filings during the 

relevant years. The Indictment claims that the Senator

engaged in conduct “in the district of New Jersey and 

elsewhere” to falsify, conceal, and cover up those allegedly

reportable gifts. Id. (Indict. ¶ 271).

D. Procedural History

In late 2014, two Menendez staffers (one current and 

one former) invoked the privilege conferred by the Speech or 

Debate Clause to withhold testimony before a federal grand

jury investigating the Senator’s dealings with Dr. Melgen. 

The parties disputed how protective the privilege was, and the

District Court ultimately granted the Government’s motion to 

compel the staffers’ testimony. On appeal, we ruled that the 

privilege did not necessarily protect Senator Menendez’s 

“informal communications with Executive Branch officials, 

one of whom [(Ms. Tavenner)] was at the time a presidential 

nominee whose nomination was pending before the United 

States Senate.” In re Grand Jury Investig. (Menendez), 608 F. 

App’x 99, 101 (3d Cir. 2015). However, we required

additional fact-finding to determine if the privilege applied. 

Thus we remanded the matter to the District Court for 

“specific factual findings about the communications 
12

implicated by the grand jury questions” and with instructions 

to “separately analyze[]” the “contents and purposes of each 

disputed communication.” Id. On remand, the Government 

presented the disputed evidence through a summary witness 

and the District Court did not rule on the privilege issue 

again.

The grand jury decided to charge Senator Menendez 

and Dr. Melgen, and the Indictment issued in April 2015. The 

Senator moved to dismiss on several grounds, including the 

Speech or Debate privilege and, with respect to Count 22

alleging reporting violations under the Ethics Act, the 

separation of powers among the Branches of Government and 

faulty venue. The District Court denied the motions. It held 

that Senator Menendez failed to prove that the Indictment 

references any legislative acts covered by the Speech or 

Debate Clause. It also ruled that the Ethics Act charge was 

consistent with separation-of-powers constraints and that 

venue was proper in New Jersey. 

Senator Menendez then took this appeal. The 

Government moved to dismiss parts of it for lack of 

jurisdiction, arguing that the District Court’s denial of the

motion to dismiss for lack of venue was not immediately 

appealable. See, e.g., In re Federal-Mogul Global, Inc., 300 

F.3d 368, 378 (3d Cir. 2002). We agreed, but because the

“appropriate mechanism” for reviewing an allegedly 

improper ruling regarding venue in the absence of an 

appealable final order is mandamus, Sunbelt Corp. v. Noble, 

Denton & Assocs., Inc., 5 F.3d 28, 30 (3d Cir. 1993), we 

denied the Government’s motion and restricted Senator

Menendez to raising the venue issue only in the form of a 

“request for a petition for a writ of mandamus concerning 

venue,” Order, Dec. 11, 2015.
13

The District Court exercised jurisdiction under 18 

U.S.C. § 3231. We have jurisdiction over the Speech or 

Debate Clause issues under the collateral order doctrine. 

United States v. McDade, 28 F.3d 283, 288 (3d Cir. 1994). 

Under the specific circumstances here, we have pendent 

appellate jurisdiction over Senator Menendez’s separation-ofpowers claims. See CTF Hotel Holdings, Inc. v. Marriott 

Int’l, Inc., 381 F.3d 131, 136 (3d Cir. 2004). And we have 

jurisdiction over Senator Menendez’s request for a petition 

for a writ of mandamus under 28 U.S.C. § 1651(a).

II. Standard of Review

“[O]ur standard of review is mixed” for motions to 

dismiss. Huet, 665 F.3d at 594. We review the District 

Court’s legal conclusions de novo and its factual 

determinations, including its findings about the contents and 

purposes of the acts alleged in the Indictment, for clear error. 

Id. Senator Menendez argues that we should review the 

District Court’s findings de novo as findings of constitutional 

fact, i.e., “a fact whose ‘determination is decisive of 

constitutional rights.’” Zold v. Twp. of Mantua, 935 F.2d 633, 

636 (3d Cir. 1991) (quoting N.J. Citizen Action v. Edison 

Twp., 797 F.2d 1250, 1259 (3d Cir. 1986)). But factual 

findings are not subject to plenary review simply because 

they are material to constitutional analyses. Outside the 

unique First Amendment context that requires “independent 

appellate review” of certain factual findings, Bose Corp. v. 

Consumers Union of U.S., Inc., 466 U.S. 485, 510 (1984), we 

review findings of historical fact for clear error even when 

they affect constitutional rights, see Ornelas v. United States, 

517 U.S. 690, 699 (1996) (holding that findings of narrative 

or historical fact related to Fourth Amendment rights are 

reviewed for clear error); see also United States v. Renzi, 651 

F.3d 1012, 1020-21 (9th Cir. 2011) (reviewing for clear error 

a district court’s findings of fact in the context of a motion to 
14

dismiss an indictment on Speech or Debate Clause grounds).

Here the District Court found historical facts, so we will 

review those findings for clear error notwithstanding their 

relevance to the constitutional analysis.

Under the clear error standard, reversal of the District 

Court’s factual findings is warranted only when “the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed.” 

United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015). “[I]f 

the district court’s account of the evidence is plausible in light 

of the record viewed in its entirety, we will not reverse it even 

if, as the trier of fact, we would have weighed the evidence 

differently.” United States v. Price, 558 F.3d 270, 277 (3d 

Cir. 2009) (internal quotation marks omitted). Although our 

review at this stage of a prosecution is ordinarily limited to 

the allegations in the Indictment, see United States v. 

DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000), we can

consider extrinsic evidence to determine whether the Speech 

or Debate Clause applies, see Gov’t of the Virgin Islands v. 

Lee, 775 F.2d 514, 524 (3d Cir. 1985).

The mandamus petition pertaining to Count 22 is 

“subject to a stringent standard of review.” Delalla v. 

Hanover Ins., 660 F.3d 180, 183 n.2 (3d Cir. 2011). “[I]n 

order to grant mandamus relief, ‘an appellate court must find 

a clear legal error calling for relief that can be obtained 

through no other means.’” Id. (emphasis omitted) (quoting 

Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1074 (3d 

Cir. 1983)). In other words, that relief is “appropriate only 

upon a showing of (1) a clear abuse of discretion or clear 

error of law; (2) a lack of an alternate avenue for adequate 

relief; and (3) a likelihood of irreparable injury.” United 

States v. Wright, 776 F.3d 134, 146 (3d Cir. 2015).
15

III. Discussion

A. The Speech or Debate Clause

To repeat, the Speech or Debate Clause provides that

“for any Speech or Debate in either House” Members of 

Congress “shall not be questioned in any other Place.” U.S. 

Const. art. I, § 6, cl. 1. The “central role” of the Clause is to 

“prevent intimidation of legislators by the Executive and 

accountability before a possibly hostile judiciary.” In re 

Grand Jury, 821 F.2d 946, 952 (3d Cir. 1987) (quoting 

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 

(1975)). It was “not written into the Constitution simply for 

the personal or private benefit of Members of Congress, but 

to protect the integrity of the legislative process by insuring 

the independence of individual legislators.” United States v. 

Brewster, 408 U.S. 501, 507 (1972); see also Tenney v. 

Brandhove, 341 U.S. 367, 377 (1951) (stating that legislators 

must be “immune from deterrents to the uninhibited discharge 

of their legislative duty, not for their private indulgence but 

for the public good”). 

The Supreme Court has read the Clause “broadly” to 

guarantee Members of Congress immunity from criminal or 

civil liability based on their legislative acts, Gravel v. United 

States, 408 U.S. 606, 615 (1972), and to create a privilege 

against the use of “evidence of a legislative act” in a 

prosecution or before a grand jury, United States v. Helstoski, 

442 U.S. 477, 487 (1979); see Gravel, 408 U.S. at 622. But 

because the privilege “was designed to preserve legislative 

independence, not supremacy,” invocations of it that go 

“beyond what is needed to protect legislative independence” 

must be “closely scrutinized.” Hutchinson v. Proxmire, 443 

U.S. 111, 126-27 (1979). More specifically, “the Speech or 

Debate Clause must be read broadly to effect[] its purpose of 

protecting the independence of the Legislative Branch, but no 
16

more than the statutes we apply . . . was its purpose to make 

Members of Congress super-citizens, immune from criminal 

responsibility.” Brewster, 408 U.S. at 516. A Member seeking 

to invoke the Clause’s protections bears “the burden of 

establishing the applicability of legislative immunity . . . by a

preponderance of the evidence.” Lee, 775 F.2d at 524 (citing 

In re Grand Jury Investig. (Eilberg), 587 F.2d 589, 597 (3d 

Cir. 1978)).

In practice, the Speech or Debate privilege affords 

protection from indictment only for “legislative activity.”

Gravel, 408 U.S. at 625; see also United States v. Johnson, 

383 U.S. 169, 184-85 (1966); United States v. Helstoski, 635 

F.2d 200, 205-06 (3d Cir. 1980). Legislative acts have 

“consistently been defined as [those] generally done in 

Congress in relation to the business before it.” Brewster, 408 

U.S. at 512. They do not include “all things in any way 

related to the legislative process.” Id. at 516; see Gravel, 408 

U.S. at 625 (“That Senators generally perform certain acts in 

their official capacity as Senators does not necessarily make 

all such acts legislative in nature.”). The takeaway is that 

“[t]he Speech or Debate Clause does not immunize every 

official act performed by a member of Congress.” McDade, 

28 F.3d at 295. Rather, it protects only acts 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.” Gravel, 408 U.S. at 625.

This plays out in a two-step framework for identifying 

legislative acts protected by the Speech or Debate Clause. 

First, we look to the form of the act to determine whether it is 

inherently legislative or non-legislative. Some acts are “so 

clearly legislative in nature that no further examination has to 
17

be made to determine their appropriate status.” Lee, 775 F.2d 

at 522. Examples of “manifestly legislative acts” include

introducing and voting on proposed resolutions and

legislation, introducing evidence and interrogating witnesses

during committee hearings, subpoenaing records for 

committee hearings, inserting material into the Congressional 

Record, and delivering a speech in Congress. See id. (listing 

cases). And even though “such manifestly legislative acts 

may have been pursued and accomplished for illegitimate 

purposes, such as personal gain, the acts themselves [are]

obviously legislative in nature.” Id. Thus “an unworthy 

purpose” does not eliminate Speech or Debate protection.

Johnson, 383 U.S. at 180 (quoting Tenney, 341 U.S. at 377); 

see also Eastland, 421 U.S. at 508 (“Our cases make clear 

that in determining the legitimacy of a congressional act we 

do not look to the motives alleged to have prompted it.”); 

Youngblood v. DeWeese, 352 F.3d 836, 840-41 (3d Cir. 2003) 

(concluding without any “consideration[] of intent and 

motive” that a legislator’s appropriation of state funds was 

legislative activity).

On the other side of the spectrum, some acts are so 

clearly non-legislative that no inquiry into their content or 

underlying motivation or purpose is needed to classify them.

Examples include legitimate constituent services such as “the 

making of appointments with Government agencies, 

assistance in securing Government contracts, preparing socalled ‘news letters’ to constituents, news releases, and 

speeches delivered outside the Congress,” Brewster, 408 U.S. 

at 512, and, of course, illegitimate activities such as accepting 

bribes in exchange for taking official action, id. at 526. Even 

if these non-legislative acts involve policy or relate to 

protected legislative activity, they are not protected. See 

Hutchinson, 443 U.S. at 130-33 (holding that newsletters and 

press releases are outside the scope of the Speech or Debate

Clause even if they address matters of legislative 
18

importance); see also Brewster, 408 U.S. at 515 (“In no case 

has this Court ever treated the Clause as protecting all 

conduct relating to the legislative process.”).

If an act is neither manifestly legislative nor clearly

non-legislative, then it is ambiguously legislative, and we 

proceed to the second step of the Speech or Debate analysis.

There we consider the content, purpose, and motive of the act 

to assess its legislative or non-legislative character. See Lee, 

775 F.2d at 522-24. Ambiguously legislative acts—including 

trips by legislators and informal1contacts with the Executive 

Branch—will be protected or unprotected based on their

particular circumstances. See id. at 524. In Lee, for example, a 

legislator from the Virgin Islands faced criminal charges for a

trip he took supposedly on the Government’s behalf. He 

argued that legislative immunity barred the prosecution 

because he engaged in legislative fact-finding during the trip. 

We first explained that there was nothing inherently 

legislative or non-legislative about the trip because it was 

only legislative to the extent it “involved legislative factfinding.” Id. at 522. Rather, “[i]t is the content of Lee’s 

private conversations, and not the mere fact that the 

conversations took place, that determines whether Lee is 

entitled to legislative immunity.” Id. We then determined that 

Lee’s conversations were not “in fact . . . legislative in nature 

so as to trigger the immunity.” Id. To reach that conclusion, 

we considered “the content of Lee’s private conversations” 

and his “purpose or motive” for engaging in them. Id. at 522-

24.

 

1 We use the word “informal” to exclude manifestly 

legislative acts, such as communications with Executive 

Branch officials during committee hearings or the passage of 

legislation, that are protected even if they influence or coerce 

the Executive Branch.
19

Senator Menendez proposes two alternative standards

for distinguishing between legislative and non-legislative acts 

at step two. He first argues that an ambiguously legislative act 

should be “viewed objectively and, if it appears legislative, 

that should end the inquiry with the privilege upheld.” 

Menendez Br. at 33. But Lee expressly rejected the view that 

Speech or Debate immunity “protects not only legislative 

acts, but also acts which are purportedly or apparently

legislative in nature.” 775 F.2d at 522 (emphasis in original). 

Rather, we consider a legislator’s purpose and motive to the 

extent they bear on whether “certain legislative acts were in 

fact taken” or whether “non-legislative acts [are being]

misrepresented as legislative” in order to invoke the Speech 

or Debate privilege improperly. Id. at 524. Only after we 

conclude that an act is in fact legislative must we refrain from 

inquiring into a legislator’s purpose or motive. Id. Lee’s

holding is not limited to after-the-fact characterizations of 

acts as legislative, as Senator Menendez contends, nor does it 

suggest that the privilege prevents us from considering

evidence of a purportedly legislative act’s true character.

The authority Senator Menendez cites to the contrary 

misses the mark. He cites a statement in United States v. 

McDade for the principle that it is inappropriate to consider a 

legislator’s motives when determining the character of an 

ambiguously legislative act. McDade considered whether the 

Speech or Debate Clause protected a Congressman’s two

ambiguously legislative letters, one that “openly lobbie[d]”

the Executive Branch on behalf of a particular business in his 

district and one that discussed a “broader policy question” 

without “explicitly refer[ring] to any particular business.” 28 

F.3d at 300. Though the McDade Court suggested that the 

second letter “appear[ed] on its face” to be ambiguously 

legislative, it resolved the case without deciding whether the

letters were legislative activity within the scope of the Clause.
20

Id. The statement is thus a dictum, neither binding on us nor

even a conclusive determination of the relevant legal issue.

Senator Menendez next cites three distinguishable 

cases from other circuits. Two involve manifestly legislative 

activity rather than ambiguously legislative activity that might 

appear legislative on its face. See United States v. Dowdy, 479 

F.2d 213, 224-26 (4th Cir. 1973) (holding that actions 

pursuant to an investigation authorized by the Chairman of 

the House Subcommittee on Investigations were legislative 

notwithstanding evidence that the investigation was 

performed in exchange for a bribe); McSurely v. McClellan, 

553 F.2d 1277, 1296 (D.C. Cir. 1976) (en banc) (per curiam) 

(holding that a Congressman’s actions pursuant to an 

officially sanctioned Congressional investigation would be 

legislative notwithstanding evidence of impure motive, but 

noting that his inquiry into private matters beyond the scope 

of the investigation were not); see also Lee, 775 F.2d at 524 

(treating Dowdy as limited to cases involving “admittedly” 

legislative activity). And the third case is consistent with Lee

because it allows the Government to inquire into the reasons 

for apparently legislative activity. See United States v. Biaggi, 

853 F.2d 89, 103 (2d Cir. 1988) (ruling that the Government 

may properly present arguments about the “non[-]legislative 

reasons” for the defendant’s purportedly legislative act); see 

also id. at 104 (“The fact that one of the purposes of the travel 

may have been the conduct of legislative activity does not 

preclude a conviction.”). We therefore reject Senator

Menendez’s first argument that the Speech or Debate Clause 

necessarily protects apparently legislative activity. Courts

may dig down to discern if it should be deemed legislative or 

non-legislative.

Senator Menendez’s second alternative posits that the 

Speech or Debate privilege protects any effort by a Member 

to oversee the Executive Branch, including informal efforts to 
21

influence it. See Menendez Br. at 14-18, 19 & n.5; see also 

Hutchinson, 443 U.S. at 136 (Stewart, J., concurring in part 

and dissenting in part). That blanket approach is much too 

broad, as it would immunize many illegal acts that have only 

dubious ties to the legislative process. Like all acts by 

Members, oversight activities exist along a spectrum: the 

Speech or Debate protection is obvious at the edges where 

they are manifestly legislative or clearly non-legislative, but it 

is not obvious in the middle ground where they are 

ambiguously legislative and consideration of their content, 

purpose, and motive is necessary. See McDade, 28 F.3d at 

299-300. Senator Menendez’s informal communications with 

Executive Branch officials are ambiguously legislative, so 

this case is fought on that middle ground, and claims of 

“oversight” do not automatically result in Speech or Debate 

protection.

The Government takes a much harder line: it argues

that the Speech or Debate “protection does not extend to 

Legislative attempts to influence Executive actions, as those 

actions are the domain of the Executive.” Gov’t Br. at 24.

Though it concedes that the Clause protects formal efforts to 

encourage or command the Executive Branch to do 

something (e.g., by “voting for a resolution,” “preparing 

investigative reports,” “addressing a congressional 

committee,” or “speaking before the legislative body in 

session”), id. at 23 (quoting Youngblood, 352 F.3d at 840), it 

nonetheless contends that any other attempts to influence the 

Executive Branch are categorically outside the scope of the 

immunity, see id. at 25 (“[T]he Speech or Debate Clause does 

not apply to efforts by members of Congress to influence the 

Executive Branch.” (quoting McDade 28 F.3d at 299)). 

We disagree with the Government’s all-encompassing 

position. Consistent with our two-step approach to Speech or 

Debate privilege determinations, informal efforts to influence 
22

the Executive Branch are ambiguously legislative in nature 

and therefore may (or may not) be protected legislative acts

depending on their content, purpose, and motive. In general, 

efforts by legislators to “cajole” and “exhort” Executive 

Branch officials “with respect to the administration of a 

federal statute” are not protected. Gravel, 408 U.S. at 625.

They include efforts to intervene in decisions pending before 

the Executive Branch that would mainly affect one particular 

party. See McDade, 28 F.3d at 300; see also Menendez Br. at 

20 (distinguishing protected oversight from unprotected 

oversight based on “whether the Member was simply 

assisting a particular person or was addressing a broader 

policy question” (internal quotation marks omitted)). But 

informal attempts to influence the Executive Branch on 

policy, for actual legislative purposes, may qualify as “true 

legislative oversight” and merit Speech or Debate immunity.

McDade, 28 F.3d at 304 (Scirica, J., concurring); see In re 

Grand Jury Investig. (Menendez), 608 F. App’x at 100 

(noting that “informal oversight” is not necessarily protected, 

but may be in some cases even though it is “not manifestly 

legislative”). Like all inquiries into ambiguously legislative 

acts, that distinction will turn on the content, purpose, and 

motive of the communications at issue. The consequence of 

accepting the Government’s position would be to place 

legitimate policy-based efforts under the specter of possible 

indictment.

Senator Menendez does not prevail, however, because 

the acts alleged in this case were essentially lobbying on 

behalf of a particular party and thus, under the specific 

circumstances here, are outside the constitutional safe harbor. 

He claims that the Indictment improperly references five 

supposedly legislative acts: (1) his meeting with Ms. 

Tavenner; (2) his follow-up call with her; (3) his meeting 

with Secretary Sebelius; (4) his meeting with Assistant 

Secretary Brownfield; and (5) his staff’s communications 
23

with Customs employees. Senator Menendez’s opening brief 

suggests that the District Court erred in its treatment of 

several other acts alleged in the Indictment, but he specifies in 

his reply brief that he is challenging only these five acts on 

appeal.2 The District Court found that these acts were 

informal attempts to influence the Executive Branch 

specifically on Dr. Melgen’s behalf and not on broader issues 

of policy. See, e.g., A-20 (“[Senator] Menendez fails to meet 

his burden to demonstrate that the primary goal of these 

communications was not to lobby the Executive Branch to 

enforce Dr. Melgen’s specific contract, a non-legislative 

activity.”); A-21 (“The Court finds that Senator Menendez 

does not meet his burden to establish that the predominant 

purpose of these emails was to gather information for a 

legislative purpose rather than to lobby for a postponement of 

 

2 For example, he argued that a meeting he attended 

between Dr. Melgen and Senator Tom Harkin, the then-Chair 

of the Senate Health, Education, Labor, and Pensions 

Committee, was protected legislative fact-finding. But even 

there, evidence suggests that Senator Menendez was not 

engaged in legislative fact-finding, but rather that he and Dr. 

Melgen sought Senator Harkin’s assistance with Dr. Melgen’s 

particular CMS dispute. See, e.g., A-1152-53 (Harkin FD302) (“[Senator] Harkin believes [Senator] Menendez asked 

him to meet with [Dr.] Melgen because [Dr.] Melgen had a 

problem that needed to be addressed.”); A-112 (Indict. ¶ 186) 

(alleging that an email from a Menendez staffer to Senator 

Harkin’s Chief of Staff mentioned Dr. Melgen’s CMS 

dispute). Hence the District Court’s finding that the meeting 

was an attempt to assist Dr. Melgen specifically was not 

clearly erroneous, and the meeting was unprotected by the 

Speech or Debate privilege.
24

planned official action.”). Unless those findings were clearly 

erroneous, they require us to hold that the challenged acts are 

not legislative and that the Speech or Debate privilege does 

not apply to them. And for the reasons that follow, clear error 

is not evident. 

Senator Menendez argues that the five challenged acts 

were legislative because they addressed questions of policy. 

He relies primarily on allegations from the Indictment and 

evidence in the record showing that each of the challenged 

acts involved policy discussions. See, e.g., A-114 (Indict. 

¶ 200) (“[Senator] Menendez pressed [Ms. Tavenner] about 

multi-dosing and Medicare payments, and advocated on 

behalf of the position favorable to [Dr.] Melgen.” (emphases 

added)); A-116 (Indict. ¶ 204) (alleging that the follow-up 

call with Ms. Tavenner addressed CMS’s “position regarding 

billing” and its decision to “follow[] the CDC guidelines”);

A-99-100 (Indict. ¶ 123) (alleging that Senator Menendez 

requested a meeting with Assistant Secretary Brownfield “to 

talk about DR (cargo from [Dominican Republic] coming into 

US ports)”); A-1314 (Tavenner FD-302) (reporting that Ms. 

Tavenner’s follow-up call with Senator Menendez addressed

“the policy regarding billing for vials”); A-1135 (Blum FD302) (reporting that the “focus of the conversation” at the 

Sebelius meeting was “the policy,” and that Senator

Menendez and Senator Reid told Secretary Sebelius they 

“were not there to talk about a particular case; they were there 

to talk about policy”); A-1306 (Sebelius FD-302) (reporting 

that Senator Menendez and Senator Reid spoke “broadly 

about . . . healthcare providers”). He also points to allegations 

and evidence suggesting that Dr. Melgen was not mentioned 

by name in the supposedly protected communications. See, 

e.g., A-101 (Indict. ¶ 125) (alleging that the “issue of a US 

company” doing business in the Dominican Republic was 

only “allud[ed] to” at the Brownfield meeting); Menendez Br. 

at 41 (“No participant stated that [Dr.] Melgen or his case was 
25

mentioned.”); id. at 45 (“[N]obody could recall Dr. Melgen’s 

name being mentioned.”); Menendez Reply Br. at 24 (“[T]he 

Indictment does not allege th[e] email [to Customs] identified 

[Dr.] Melgen or his company.” (emphasis in original)). In 

light of these observations, Senator Menendez asserts that the 

District Court clearly erred when it found that the challenged 

acts were informal attempts to influence the Executive 

Branch specifically on Dr. Melgen’s behalf and not on 

broader issues of policy.

But the existence of evidence to support an alternative 

finding—that Senator Menendez was concerned with broader 

issues of policy—does not mean that the District Court’s 

findings are clearly erroneous. See Anderson v. Bessemer 

City, 470 U.S. 564, 574 (1985). For there is much to confirm 

that the District Court’s “account of the evidence is plausible 

in light of the record viewed in its entirety.” Id. First, 

evidence exists that Dr. Melgen or his case was mentioned 

specifically during each of the challenged acts. See, e.g., A1307 (Sebelius FD-302) (reporting that Secretary Sebelius 

told Senator Menendez “the case at issue [(i.e., Dr. Melgen’s 

case)] was no longer within [her] jurisdiction because it was 

in the appeals process” (emphasis added)); A-1301 (Reid FD302) (reporting that Dr. Melgen’s name probably came up 

during the Sebelius meeting “because [Dr.] Melgen’s 

individual situation was clearly the purpose of the meeting 

and they would have otherwise been speaking in a vacuum”);

A-1302 (Reid FD-302) (“[Senator] Reid considered his role 

in setting up the meeting with [Secretary] Sebelius to be 

offering assistance to [Senator] Menendez in order that 

[Senator] Menendez might be able to offer assistance to [Dr.] 

Melgen.”); A-100-02 (Indict. ¶¶ 124-131) (alleging that 

Senator Menendez “questioned [Assistant Secretary 

Brownfield] about the contract dispute between [Dr. Melgen] 

and the Dominican Republic”). The unrebutted allegations of 

the Indictment and evidence in the record further suggest that 
26

participants in the challenged acts were aware that their

policy discussions related specifically to Dr. Melgen. See, 

e.g., A-1313 (Tavenner FD-302) (reporting that Mr. Blum 

told Ms. Tavenner before her meeting with Senator Menendez 

that the Senator was interested in Dr. Melgen’s case); A-118

(Indict. ¶ 216) (alleging that Senator Menendez “focus[ed] on 

[Dr.] Melgen’s specific case” during the Sebelius meeting and 

“assert[ed] that [Dr.] Melgen was being treated unfairly”); A1307 (Sebelius FD-302) (reporting that Secretary Sebelius 

told Senator Menendez at their meeting that she had no power 

to influence Dr. Melgen’s case); A-98 (Indict. ¶ 119)

(alleging that Assistant Secretary Brownfield was told before 

his meeting with Senator Menendez that the latter “pretty 

squarely” had an “interest” in Dr. Melgen’s case); A-100-02 

(Indict. ¶¶ 124-131) (alleging that, after the Brownfield 

meeting, Assistant Secretary Brownfield referred to Dr. 

Melgen’s case as the one “about which Sen. Menendez 

threatened to call me to testify” and “[Senator] Menendez’[s]

favorite DR port contract case”).

In sum, evidence is plentiful that to most of those 

involved the focal point of the meetings with Executive 

Branch officials was Dr. Melgen. That Senator Menendez 

framed those meetings using the language of policy does not 

entitle them unvaryingly to Speech or Debate protection. 

Rather, for every mention of policy concerns there is 

substantial record support for the District Court’s findings

that those concerns were instead attempts to help Dr. Melgen.

The evidence in favor of Senator Menendez will no doubt 

channel forcefully his position at trial, where the burden will 

be on the Government to convince jurors to find in its favor 

beyond a reasonable doubt. But at this stage the burden is on 

Senator Menendez. It was not clear error for the District 

Court to find that the Senator acted primarily for Dr. Melgen.
27

Second, there is evidence about the preparations for 

the challenged acts suggesting that Dr. Melgen was the 

primary focus of the supposedly protected communications. 

Unrebutted allegations in the Indictment and materials in the 

record suggest that Senator Menendez prepared for the CMSrelated acts with an eye toward Dr. Melgen’s specific 

situation. See, e.g., A-114 (Indict. ¶ 199) (alleging that 

Senator Menendez prepared for the Tavenner meeting by 

speaking with Dr. Melgen’s lobbyist); A-115 (Indict. ¶ 202) 

(alleging that a memo prepared for Senator Menendez in 

advance of the Tavenner call described the “issue at hand” as 

“payments made in 2007-2008,” the same years as Dr. 

Melgen’s purported overbilling); SA-5-8 (email from Dr. 

Melgen’s lobbyist to a Menendez staffer explaining the scope 

of Dr. Melgen’s dispute with CMS in advance of Senator

Menendez’s follow-up call with Ms. Tavenner); A-117 

(Indict. ¶ 210) (alleging that Senator Menendez did not tell 

Dr. Melgen about the Sebelius meeting so as not to “raise

[his] expectation[s] just in case it falls apart”). We do not 

accept Senator Menendez’s suggestion that the Speech or 

Debate Clause somehow prevents consideration of relevant 

circumstantial evidence simply because it predated the 

purportedly legislative act. See Lee, 775 F.2d at 524-25.

Third, there are unrebutted allegations and materials in 

the record suggesting that Dr. Melgen and his lobbyist were 

particularly interested in following up with Senator Menendez 

on all of the challenged acts. See, e.g., A-116 (Indict. ¶ 205) 

(alleging that Dr. Melgen’s lobbyist wrote to a Menendez 

staffer after the Tavenner meeting that he (the lobbyist) was 

“eager to learn how the call went today”); id. (Indict. ¶ 207) 

(alleging that Dr. Melgen’s lobbyist told a Menendez staffer 

that he (the lobbyist) was “hopeful it won’t come to” 

litigation after the Tavenner meeting); A-116-17 (Indict. 

¶ 208) (alleging that Dr. Melgen’s lobbyist asked to be told 

when Ms. Tavenner responded to Senator Menendez because 
28

“at some point I have to make a decision whether to 

recommend to [Dr. Melgen] to go to court rather than wait 

any longer. I did not want to take any action until I knew that 

other avenues were shut down”); A-118-19 (Indict. ¶ 217) 

(alleging that Dr. Melgen’s lobbyist asked for “further 

briefing” on the Sebelius meeting). While this could be seen 

as evidence of Dr. Melgen’s interest in the outcome of a 

genuine policy discussion, it could also be viewed as his 

interest in the outcome of casework performed on his behalf. 

Because the record supports both views, the District Court’s 

findings were not clearly erroneous.

Fourth, Senator Menendez ignores unfavorable aspects 

of the evidence on which he relies. For example, he cites a 

note that urged him to “[m]ake the larger policy case” at his 

meeting with Ms. Tavenner, but that note also mentioned Dr. 

Melgen and his lobbyist by name. See A-1316. Far from 

showing that that Dr. Melgen was clearly not discussed at the 

meeting, the note suggests that any discussion of policy 

involved Dr. Melgen’s particular case. Similarly, Senator

Menendez points out that the Indictment alleges only that the 

“DR port issue” was discussed at the Brownfield meeting and 

that the “issue of a US company” doing business in the 

Dominican Republic was only “allud[ed] to.” A-101 (Indict. 

¶ 125). But the source of that quoted language also indicated 

that Assistant Secretary Brownfield promised he would try to 

“leverage a correct . . . decision on the port contract.” A-101 

(Indict. ¶ 125). By not referencing a promise relating

specifically to “the port contract,” especially when the 

Indictment alleges that Senator Menendez pressed Assistant 

Secretary Brownfield specifically on his inaction with respect 

to Dr. Melgen’s contract dispute, the Senator asks us to 

ignore relevant and material evidence. We do not view the 

record through such a narrow lens. 
29

Record evidence and unrebutted allegations in the 

Indictment cause us to conclude that the District Court did not 

clearly err when it found that the challenged acts were 

informal attempts to influence the Executive Branch toward a 

political resolution of Dr. Melgen’s disputes and not primarily 

concerned with broader issues of policy. Because there is 

substantial support for the District Court’s findings, we lack 

“the definite and firm conviction that a mistake has been 

committed.” United States v. Bergrin, 650 F.3d 257, 264 (3d 

Cir. 2011). Those findings support the Court’s conclusion that 

the Senator’s acts were not legislative. Thus the Speech or 

Debate privilege does not apply.

Senator Menendez also advances two alternative 

grounds for claiming that some of the challenged acts are 

protected by Speech or Debate immunity. First, he argues that 

he used the meeting and follow-up call with Ms. Tavenner to 

vet her as the President’s nominee to become the permanent 

CMS Administrator. He points to some evidence suggesting 

that his interactions with Ms. Tavenner were related to her 

pending nomination, not her role as acting CMS 

Administrator. See A-462 (entry in Senator Menendez’s 

calendar reflecting that the meeting with Ms. Tavenner was 

“re: her nomination before the Finance Committee”); A-323 

(grand jury testimony of a Menendez staffer claiming that the 

purpose of the Tavenner meeting was “consideration of her 

nomination”); Menendez Reply Br. at 20 n.11 (arguing that 

the follow-up call, as a continuation of the meeting, was also 

part of the vetting process). 

But the way that Senator Menendez chooses to 

characterize his actions does not resolve the Speech-orDebate-Clause question. See Lee, 775 F.2d at 522. For there 

is evidence in the record suggesting that the meeting and 

follow-up call with Ms. Tavenner were not related to her

nomination. See, e.g., A-1312-13 (Tavenner FD-302) 
30

(reporting that Ms. Tavenner twice requested a meeting with 

Senator Menendez about her confirmation but received no 

response, and she “did not expect her nomination to go 

forward” when she met with Senator Menendez); SA-14 

(email from one Senator Reid staffer to another stating, in the 

same month as the meeting with Ms. Tavenner, that her 

nomination was “dead”); SA-2-4 (interoffice memorandum 

summarizing the Tavenner meeting so Senator Menendez 

could prepare for the follow-up call but never mentioning Ms. 

Tavenner’s nomination); A-116-17 (Indict. ¶¶ 204, 209) 

(alleging that Senator Menendez threatened to take his 

complaints to Secretary Sebelius, implicitly suggesting that 

the complaints were unrelated to Ms. Tavenner’s 

nomination). And, perhaps most telling, Ms. Tavenner told 

the FBI that her “nomination was not mentioned at the 

meeting.” A-1313 (Tavenner FD-302). The District Court 

found that Senator Menendez’s interactions with Ms. 

Tavenner were not related to her confirmation. On this record, 

that finding could hardly be considered clearly wrong; thus

those interactions are not protected as part of Ms. Tavenner’s

confirmation process.

Second, Senator Menendez argues that his Chief 

Counsel’s correspondence with a Customs employee was 

legislative because it was an attempt to gather information. 

“[F]act-finding, information gathering, and investigative 

activities are essential prerequisites to the drafting of bills and 

the enlightened debate over proposed legislation,” and thus

they constitute protected legislative acts. Lee, 775 F.2d at 

521. Here, the text of the initial communications with 

Customs appear to request some information from the agency.

See A-102-03 (Indict. ¶¶ 132-38). But those communications 

also show that Senator Menendez was asking it to refrain 

from donating any equipment to the Dominican Republic

arguably because this would affect Dr. Melgen’s contract. Id.

Later communications between Senator Menendez’s staff and 
31

Customs confirmed that both parties understood that ICSSI, 

Dr. Melgen’s company, was the entity that would suffer from 

such a donation. See A-103 (Indict. ¶¶ 139-42). Because the 

request for information is so bound up with the advocacy on 

Dr. Melgen’s behalf, it cannot be excised, and the privilege

turns on the entire communication’s predominant purpose. 

See Lee, 775 F.2d at 525; Helstoski, 442 U.S. at 488 n.7. The 

unrebutted allegations in the Indictment support the District 

Court’s finding that it was not the primary purpose of the 

Customs communications to gather information in support of 

future legislation or to engage in policy-based oversight. Thus

the District Court’s finding falls well short of clear error, and 

the communications were not protected. 

In sum, the materials before us provide a sufficient 

basis for the District Court’s conclusion that the predominant 

purpose of the challenged acts was to pursue a political 

resolution to Dr. Melgen’s disputes and not to discuss broader 

issues of policy, vet a presidential nominee, or engage in 

informal information gathering for legislation. It was not to 

engage in true legislative oversight or otherwise influence 

broad matters of policy. No clearly wrong findings exist at 

this stage, and we will affirm the Court’s conclusion that the 

Speech or Debate Clause does not protect any of the 

challenged acts.

B. The Ethics Act

The Ethics Act is a wide-ranging statute that, among 

other things, requires Senators to submit certain financial 

disclosure reports each year to the Secretary of the Senate for 

review and public distribution by the Senate’s Select 

Committee on Ethics. Count 22 of the Indictment charges 

Senator Menendez with violating 18 U.S.C. §§ 1001(a)(1) 

and (c)(1) by knowingly or willfully falsifying, concealing, or 

covering up the reportable gifts he allegedly received from 
32

Dr. Melgen as part of a bribery scheme. Senator Menendez 

advances several arguments as to why Count 22 violates the 

separation of powers among our Branches of Government. 

We reject each.

First, Senator Menendez maintains that the Executive 

Branch may not punish any conduct regulated by the Ethics 

Act because the Senate has incorporated it into Senate Rule 

34. Because the Act has been incorporated into the Senate 

Rules, he reasons that its filing requirements stem from the

Constitution’s Rulemaking Clause, U.S. Const. art. I, § 5, cl. 

2 (“Each House may determine the Rules of its Proceedings, 

punish its Members for disorderly Behaviour, and, with the 

Concurrence of two thirds, expel a Member.”), and their 

violation is punishable only by the Senate as a transgression

of a Senate Rule. See Menendez Br. at 48 (“Senators are 

compelled to complete these reports only because the Senate 

has exercised its constitutional authority to require them.”). In 

other words, the Ethics Act is unconstitutional as applied to 

the Senate because “the Rulemaking Clause commits the 

power to set and enforce ethical standards for Senators to the 

Senate alone.” Menendez Reply Br. at 28.

This contention confuses the relationship between the 

separation of powers, the Ethics Act, and Senate Rule 34. The 

Act, which was passed by the full Congress and signed into 

law by the President, is the source of a Senator’s obligation to 

make financial disclosures. Rule 34 allows the Senate to 

punish Ethics Act violations; it does not undermine the 

Executive Branch’s authority to prosecute a Senator for those 

violations. The separation-of-powers principle does not mean 

that Rule 34 prevents the Executive Branch from enforcing 

the Act, and the Rulemaking Clause does not bar Congress 

from legislating ethics. To say otherwise would immunize 

from prosecution by the Executive Branch any conduct that is 

incorporated into the Senate Rules, however offensive to the 
33

laws of the United States. Separation of powers requires no 

such result. Moreover, to the extent the Ethics Act 

incorporates elements of the Senate Rules—such as 

permitting Senators to satisfy their Ethics Act obligations on 

forms created by the Senate, see 5 U.S.C. app. 4 § 106(b)(7), 

or creating a defense to the Act’s liability for Senators who 

rely in good faith on advisory opinions issued by the Senate 

Select Committee on Ethics, see United States v. Hansen, 772 

F.2d 940, 947 (D.C. Cir. 1985) (Scalia, J.)—that is how 

Congress and the President agreed the Act would operate. It is 

not a sign that the source of Senator Menendez’s filing 

obligations is Senate Rule 34 or that the Ethics Act

criminalizes violations of those Rules as such.

Second, Senator Menendez suggests that Count 22 is 

non-justiciable (legalese for incapable of being decided by a 

court) because it requires the Judicial Branch to resolve 

ambiguities in the Senate Rules. The Judicial Branch is 

generally capable of interpreting congressional rules. See 

Yellin v. United States, 374 U.S. 109, 114 (1963) (“It has 

been long settled, of course, that rules of Congress and its 

committees are judicially cognizable.”); United States v. 

Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir. 1995) (“[I]t is 

perfectly clear that the Rulemaking Clause is not an absolute 

bar to judicial interpretation of the House Rules.”). Although 

some Senate Rules may be non-justiciable because they are so 

vague that the Judicial Branch would essentially make rules 

for the Senate (and thereby violate the Rulemaking Clause) if 

it tried to interpret them, see Rostenkowski, 59 F.3d at 1306; 

United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 

(D.C. Cir. 1981), Senator Menendez has not identified any 

particular Senate Rule that would necessarily be interpreted in 

the course of his prosecution, let alone a Senate Rule that is 

so vague as to be non-justiciable. 
34

Third, Senator Menendez argues that his Ethics Act

disclosures are protected legislative acts under the Speech or 

Debate Clause. But the “[d]isclosure of income from sources 

other than employment by the United States” is not a 

legislative act because it is not “an integral part of the 

deliberative and communicative processes by which Members 

participate in committee and [Senate] proceedings.” United 

States v. Myers, 692 F.2d 823, 849 (2d Cir. 1982). The cases 

from the D.C. Circuit on which the Senator relies neither 

compel us nor convince us to rule that Ethics Act filings are 

legislative acts. Those cases considered only whether the 

Clause gave safe harbor to a Member’s speech in an official 

congressional disciplinary proceeding, not whether it 

protected a Member’s Ethics Act filings. See In re Grand 

Jury Subpoenas, 571 F.3d 1200, 1202 (D.C. Cir. 2009); 

United States v. Rose, 28 F.3d 181, 188 (D.C. Cir. 1994); Ray 

v. Proxmire, 581 F.2d 998, 1000 (D.C. Cir. 1978). Indeed, the 

D.C. Circuit in another case upheld the conviction of a 

Member of Congress under 18 U.S.C. § 1001 for concealing 

material facts in an Ethics Act filing. See Hansen, 772 F.2d at

943 (Scalia, J.). Hence we rule that Ethics Act filings are not 

legislative acts protected by the Speech or Debate Clause.

C. Venue for Count 22

Senator Menendez asserts that venue for Count 22 is 

proper only in Washington, D.C., where he filed the Ethics 

Act disclosure forms, and New Jersey is thus the wrong place.

Because the denial of a motion to dismiss for lack of venue is 

not immediately appealable, see, e.g., In re Federal-Mogul 

Global, Inc., 300 F.3d at 378, we allowed Senator Menendez 

to raise that issue only as a petition for a writ of mandamus

ordering that Count 22 be tried in the District of Columbia.

He chose not to address the issue of mandamus in his opening 

brief, stating only that our review of the venue issue is 

“plenary.” Menendez Br. at 3. “When an issue is not pursued 
35

in the argument section of the brief, the appellant has 

abandoned and waived that issue on appeal.” Travitz v. 

Northeast Dep’t ILGWU Health & Welfare Fund, 13 F.3d 

704, 711 (3d Cir. 1994). That is so here.

Even if the issue were not waived, we would deny

Senator Menendez’s petition. Mandamus is a “drastic remedy 

that a court should grant only in extraordinary circumstances 

in response to an act amounting to a judicial usurpation of 

power.” In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 

378 (3d Cir. 2005). Count 22 alleges that Senator Menendez 

violated 18 U.S.C. § 1001 when he concealed or covered up 

material facts in New Jersey before he filed his financial 

disclosures in Washington, D.C. A-135 (Indict. ¶ 271). “At 

the motion to dismiss stage, the District Court had to accept 

as true all allegations in the indictment, regardless of its 

uncertainty as to how the Government would prove those 

elements at trial.” Bergrin, 650 F.3d at 270 n.8. The District 

Court thus did not abuse its discretion or commit a clear error 

of law when it ruled that the allegation was sufficient to 

support trial in the District of New Jersey.3 Additionally, 

Senator Menendez has not shown that facing trial in New 

 

3 We shall not consider record evidence at this stage of 

the litigation to assess whether the District Court’s venue 

ruling was an abuse of discretion or clear error. We recognize 

that “venue must be proper for each count of the indictment,” 

United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009), and 

the Government ultimately bears the burden of making that 

showing by a preponderance of the evidence, United States v. 

Perez, 280 F.3d 318, 330 (3d Cir. 2002). But “a pretrial 

motion to dismiss an indictment is not a permissible vehicle 

for addressing the sufficiency of the government’s evidence.” 

DeLaurentis, 230 F.3d at 660.
36

Jersey as opposed to the District of Columbia would likely 

cause him irreparable injury or that a post-conviction appeal

would be an inadequate remedy for the lack of venue.

V. Conclusion

We are sensitive that a privilege “is of virtually no use 

to the claimant of the privilege if it may only be sustained 

after elaborate judicial inquiry into the circumstances under 

which the act was performed.” Doe v. McMillan, 412 U.S. 

306, 339 (1973) (Rehnquist, J., concurring in part and 

dissenting in part). But we also “take seriously the sentiments 

and concerns of the Supreme Court that Members [of 

Congress] are not to be ‘super-citizens’ immune from 

criminal liability or process.” In re Search of Elec. 

Commc’ns, 802 F.3d 516, 531 (3d Cir. 2015) (quoting 

Brewster, 408 U.S. at 516). Senator Menendez’s selective 

reading of the materials in the record does not persuade us 

that the District Court clearly erred in its findings of fact or 

that it incorrectly applied any law. That reading may prevail 

at trial, but at this stage we affirm in all respects.