# 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

I N RE : G RAND J URY S UBPOENAS

Appeal from the United States District Court

for the District of Columbia (No. 1:07mc00319)

Before: G INSBURG and K AVANAUGH

, Circuit Judges , and

W ILLIAMS

, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge G INSBURG

.

Concurring opinion filed by Circuit Judge K AVANAUGH

.

G INSBURG

, Circuit Judge : The Ethics Committee of the

United States House of Re presentatives opened an investigation into whether a cer tain 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-fi nding. 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 th e 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 de nying 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 th e trip may have constituted an illegal gift because it was fi nanced 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 expens es 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 unde rstanding 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 Ethics3

Committee. His lawyers’ first submission explained that the congressman had “participated in what was described to him, in advance, as a privately spons ored fact-finding trip”; they

also recounted his understandi ng 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 move d 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 additi onal ground that the documents and testimony sought were protec ted 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 Et hics Committee’s inquiry, the congressman was not acting in hi s legislative capacity but in his personal capacity as a witn ess to facts relevant to the4

Committee’s investigation. An adverse determination of the sort before us under the Spee ch or Debate Clause being immediately appealable under th e 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 or der 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 questi oned 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 infr inging “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 whic h Members participate in committee and House proceedings,” id. at 624-25. Legislative fact-finding is th erefore a protected activity. McSurely v. McClellan , 553 F.2d 1277, 1286-87 (D.C. Cir. 1976). Drawing upon the reasonin g 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 performe d by the Senator personally,” 408 U.S. at 616, the district c ourt held a congressman may “assert the Speech or Debate Clause to bar compelled disclosure of testimony or docum ents from his attorney about the congressman’s legislative ac ts.” The Government does not contest that ruling. The Government does argue, however, that statements the congressman made in response5

to the Ethics Committee’s inqui ry into whether his trip constituted an unlawful gift ar e 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 mi sused Senate rooms to benefit

his wife’s travel business. Th e 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 Sena te 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 Ro se had given to the House Ethics Committee. Although th e defendant’s obligation to

disclose his financial informati on was based upon his status as6

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 investig ation 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 a llegation 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 exerci se 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 o fficial power of legislative fact-finding, which was preci sely 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 was7

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 th e subject of [the] inquiry”

into whether he had abused his o ffice to help his wife’s travel business, the congressman’s statements in this case are protected because they were di rectly 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.K AVANAUGH

, Circuit Judge , concurring: I join the opinion of the Court. I add this concurring opinion to express my concern about the confusi on 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 Congre ss — 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. C ONST . 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 legisla tive 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 De bate 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 banc2

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 Attendan ce 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. C ONST

. art. I, § 6, cl. 1 (emphasi s 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 Clau se the subject of controversy during the ratification period. See J OSH C HAFETZ

, D EMOCRACY ’ S P RIVILEGED F EW 74, 87-88 (2007); J OSEPH
S TORY

, 1 C OMMENTARIES ON THE C ONSTITUTION OF THE
U NITED S TATES § 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); A KHIL R EED A MAR

, A MERICA ’ S
C ONSTITUTION : A B IOGRAPHY 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 its3

Proceedings, punish its Members for disorderly Behaviour

, and, with the Concurrence of tw o thirds, expel a Member.”

U.S. C ONST . art. I, § 5, cl. 2 (emphasis added). This Clause gives both Houses broad official powers to hold investigations

“for violations of statutor y law, including crimes; for violations of internal congressi onal rules; or for . . . even purely private conduct by a Member that, in the House’s opinion, reflects badly on it as an institution.” C HAFETZ

, D EMOCRACY ’ S P RIVILEGED F EW , 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 intersec tion of those two clauses of the Constitution. Specifica lly, we address whether a Member’s communications in an official congressional disciplinary proceeding constitute “Speech . . . in either

House.” U.S. C ONST . art. I, § 6, cl. 1.

In my view, the answer is straightforward. Regardless whether the Member’s underlyi ng “disorderly Behaviour” is considered official or pers onal, 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 congr essional 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 principl es articulated by the Supreme Court in its Speech or Debate Cl ause 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 to5

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 eith er 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 ma tters 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 te st 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, th e 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 testim ony not privileged because the proceeding purportedly aros e out of his personal conduct — failing to properly report cert ain 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 co ngressional proceeding.

Moreover, the Ray / Rose approach creates great uncertainty. After all, it can be quite difficult to determine whether an allegation of wr ongdoing 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 ga in. Indeed, th e 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 C ourt has said, “An uncertain privilege, or one which purports to be certain but results in widely varying applications by th e 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 pers uasively 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 re pose that the privilege will have been adopted to provide, and sacrifices much of the privacy and security that the privileg e was supposed to offer in the very process of determining its applicability in the particular case.

L AURENCE H. T RIBE

, A MERICAN C ONSTITUTIONAL L AW § 5- 20, at 1017 (3d ed. 2000).

The Ray / Rose test has caused all three Branches great difficulty. One can hardly faul t 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 le ast 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 investig ations and prosecutions — in particular, cases involving al leged 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 reprima nd (which, in turn, can augur a defeat at the polls). In all ev ents, 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 th e protections of the Clause against the interest in prev enting 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 th at 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 proced ures 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 inve ntions’ 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 memb ers 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 drafte d 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 Powe r” 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 importa nce 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 cour se do not have that authority, and I therefore join the opinion of the Court.