NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 14

- 4678

____________ IN RE: GRAND JURY INVESTIGATION JOHN DOE; ABC ENTITY,

Appellants

____________ On Appeal from United States District Court for t he District of New Jersey (D. NJ No. 3

- 14

- mc - 0 0077) District Judge: Anne E. Thompson

____________ Argued February 19 , 201 5 Before: FISHER, JORDAN, and KRAUSE , Circuit Judges

.

(Filed: February 27, 2015 ) Scott W. Coyle, Esq. Abbe D. Lowell, Esq. ARGUE D Christopher D. Man, Esq. Chadbourne & Parke 1200 New Hampshire Avenue, N.W. Washington, DC 20036 Thomas J. Hall, Esq. Chadbourne & Parke 1301 Avenue of the Americas New York, NY 10019 Stephen M. Ryan, Esq. McDermott, Will & Emery 600 13th Street, N.W. Washington, DC 200052

Thomas J. Tynan, Esq. McDermott Will & Emery 500 North Capitol Street, N.W. Washington, DC 20001 Attorneys for Appellants Monique Abrishami, Esq. Joseph P. Cooney, Esq. Peter M. Koski, Esq. ARGUED United States Department of Just ice 1400 New York Avenue, N.W. Washington, DC 20539 Attorneys for Appellee United States of America

____________ OPINION *

____________ FISHER, Circuit Judge

. A federal grand jury is investigating Senator Robert Menendez for official actions he allegedl y took on behalf of, and gifts he received from, his close personal friend, Dr. Salomon Melgen. This appeal concerns two general categories of official actions. 1 The first category relates to a billing dispute between Dr. Melgen and the Center for Medica re

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1 On appeal, the parties have agreed that Robert Kelly, Senator Menendez’s Administrative Director, should have answered questions posed to him before the grand jury. Kelly previously invoked the attorney work

- product doctrine when asked about his knowledge of flights taken by S enator Menendez on Dr. Melgen’s private jet. Accordingly, we do not address this issue.3

and Me dicaid Services (“CMS”). The Government alleges that Senator Menendez and
his staff advocated on Dr. Melgen’s behalf in a June 7, 2012 , meeting between Senator
Menendez and Marilyn Tavenner, then the Acting Administrator of CMS ; in a July 2,
2012 , follow

- up call between Senator Menendez and Tavenner ; and in an August 2, 2012 , meeting among Senator Menendez, Senator Harry Reid, and Secretary of Health and
Human Services Kathleen Sebelius

. The second category relates to Dr. Melgen’s interest
in a c ontract with the Dominican Republic government giving him the exclusive right to provide screening equipment for Dominican ports. Specifically , Kerri Talbot , Senator Menendez’s former Chief Counsel, exchanged emails with a staffer from U.S. Customs
and Bo rder Protection (“CBP”) in which Talbot asked CBP not to donate screening equipmen t to the Dominican Republic and instead to allow the private contractor

— controlled by Dr. Melgen

— to provide the equipment. Michael Barnard, Senator Menendez’s Legislative A ssistant on health care issues, has been called before the grand jury twic e , both times invoking the Speech or Debate Clause to withhold testimony . I n his November 2014 testimony , he refused to answer fifty questions regarding the Senator’s conversations with Tavenner and Secretary
Sebelius as well as communications between the Senator’s Office and Ala n Reider , Dr. Melgen’s lawyer and lobbyist, about the Tavenner and Sebelius conversations

. Talbot has also appeared twice before the grand jury. In her mos t recent testimony, she refused to answer questions about whether Senator Menendez intended to invoke the Speech or4

Debate Clause to challenge the use of the CBP email chain against him

. On November 25, 2014, t he District Court granted the Governm ent’s mo tion to compel Barnard and Talbot’s test imony on the disputed issues. This appeal followed. 2 Article I, section 6 of the United States Constitution provides that “for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other place.” Put simply, t he Speech or Debate Clause prohibits questioning a Member of Congress about “legislative acts or the motivation for legislative acts.”
United States v. Brewster , 408 U.S. 501, 512 (1972). “A legislative act h as consistently been defined as an act generally done in Congress in relation to the business before it.”
Id. Some acts by Member s of Congress , such as speaking on the House or Senate floor, are “manifestly legislative” such that the Speech or Debate Clau se obviously applies to them

. Gov’t of the V.I. v. Lee , 7 75 F.2d 514, 522 (3d Cir. 1985)

. But o ther

acts , such as informal legislative fact

- finding and informal oversight , are not manifestly legislative , and indeed can look very much like unprotected pol itical act s . See id. ; United
States v. McDade , 28 F.3d 283, 300 (3d Cir. 1994). In these latter cases , district courts

2 The District Court had jurisdiction over the matter pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and Perlman v. United S tates , 247 U.S. 7, 13 (1918). We exercise plenary review over the scope of protection provided by the Speech or Debate Clause as it is a pure question of law. See MINPECO, S.A. v. Conticommodity Servs., Inc. , 844 F.2d 856, 859 (D.C. Cir. 1988). We revie w the District Court’s factual findings for clear error.5

must make factual findings regarding the content and purpose of the acts and communications in question to assess their legislative or non - legislative character. See
Lee , 775 F.2d at 522

– 24. Mere assertions that the Clause applies are insufficient, and the burden of proof resides with the Member of Congress as the proponent of the privilege.
Id. at 524. W here an act or communication h as some legislative and non

- legislative components, the correct approach is not to conclude that the act or communication is entirely legislative and covered by the Clause or entirely non

- legislative and unprotected by the Clause. Rather, the legislative components should be separated from the non

legislative components , if possible, and the latter may be the subject of questioning. See United States v. Helstoski , 442 U.S. 477, 488 n.7 (1979); Lee , 775 F.2d at 523. Where they are inseparable, the court m ust ascertain the nature of the act or communication by assessing its predominant purpose. See Lee , 775 F.2d at 525 ( explaining that a trip consisting of both personal and legislative business could constitute a legislative act if it “contained a signific ant legislative component” and that a “meeting or trip may be deemed immune even though some personal exchanges transpired”)

. Here, the parties primarily dispute the legislative character of Senator Menendez’s

two conversations with Tavenner and his meet ing with Secretary Sebeli us. T hese communications are not manifestly legislative acts because they are informal
communications with Executive Branch officials , one of whom was at the time a presidential nominee whose nomina tion was pending before the Unit ed States Senate

.6

Therefore, specific factual findings about t he communications’ legislative character are necessary to decide whether the Speech or Debate Clause applies

. See Lee , 775 F.2d at 524. The District Court granted the Government’s motion to c ompel the withheld testimony because it decided that these communications were unprotected “efforts by [M]embers of Congress to influence the Executive Branch.” ( App. 6 (internal quotation marks omitted)

. ) At this stage, w e cannot adequately evaluate th e District Court’s decision because
it did not fully explain the basis for its factual determination that the acts here are not legislative

. Accordingly, we will remand the case to the District Court to make specific
factual findings about the communicati ons implicated by the grand jury questions , especially the two Tavenner conversations, the Sebelius meeting , and discussions with
Reider before and after these conversations

. On remand, the contents and purposes of e ach disputed communication must be
sep arately analyzed to decide whether the evidence shows that it was a legislative act

. This inquiry must involve careful analysis of the record evidence al ready before the
District Court , including the contemporaneous emails, calendar entries, and notes rel ated7

to each communication

. 3 It may also involve either testimony or affidavits from the
Senator or his staff about the contents and purposes of the communications. See In re Grand Jury (Eilberg) , 587 F.2d 589, 597 (3d Cir. 1978). We leave to the Distri ct Court’s
discretion whether to consider such testimony, affidavits, or any other new evidence about the contents and purposes of the purportedly protected communications in an in

camera proceeding. See , e.g. , In re Grand Jury Subpoena , 745 F.3d 681, 690 (3d Cir. 2014). Finally, given the sensitive constitutional interests at stake, the parties have a responsibility to clearly identify the areas that remain in dispute for the District Court . At oral argument, the parties clarified that the disputed issu es are now limited to only some of the fifty questions that Barnard refused to answer and to the use of the CBP email

3 There is evidence supporting both the Government’s and the Senator’s positions regarding the legislative nature of these communications. For example, Danny O’Brien, Senator Menendez’s Chief of Sta ff, asked Senator Menendez before his meeting with Secretary Sebelius whether he had told Dr. Melgen about the meeting, supporting the inference that at least one purpose of the meeting was to assist Dr. Melgen. Senator Menendez counters that the discussi ons focused on policy, not Dr. Melgen’s case, and in the meeting with Secretary Sebelius, “[n]ot one participant mentioned Dr. Melgen’s name.” (Appellant’s Br. 45.) On remand, the District Court must consider these and other competing facts in making its findings.8

chain against the Senator. 4 We trust they will do the same for the District Court on
remand. For the reasons set forth above, we will va cate the order of the District Court and remand the case for further proceedings consistent with this opinion.

4 Of the fifty questions Barnard refused to answer, Senator Menendez’s brief conceded that questions about whether Reider asked the Senator’s Office to assist Dr. Melgen in his billing dispute are permissible. (Appellant’s Br. 42 n.11.) Theref ore, Questions 1

- 4 are permissible, and no further fact

- finding is necessary. (Supplemental App. 536.) Additionally, in his brief and at oral argument, the Senator conceded that “logistical” questions, as opposed to questions about the contents of partic ular conversations, are permissible. (Appellant’s Br. 42 n.11.) Therefore, Questions 5 (asking, generally, whom the Senator met with to assist Dr. Melgen); 6

- 7, 12 (asking about the first Tavenner conversation); 21

- 24, 27 (asking about the second Tavenne r conversation); 38

- 41, and 50 (asking about the Sebelius meeting) are permissible. (Supplemental App. 536

– 39.) Finally, the Senator’s brief conceded that questions about whether Barnard discussed the Tavenner call or the Sebelius meeting with Reider are permissible. (Appellant’s Br. 42 n.11.) Thus, Questions 31 and 45 are permissible. No further fact

- finding is necessary regarding any of these permissible questions.