Legal News

D.C. Court: DOJ Can?t Subpoena Congressional Probes

By Amir Efrati

Should the Executive branch of government be able to peer into the housekeeping of the Legislative branch? That question is now under debate at the Court of Appeals for the D.C. Circuit, though it’s looking like the Executive branch will get shot down.

The court is considering whether federal prosecutors investigating politicians should be able to obtain testimony and documents those politicians provide to their own congressional ethics committees. BLT has the story.

Here’s what happened, according to the D.C. court’s opinion, unsealed yesterday: The Ethics Committee of the U.S. House of Representatives opened an investigation into whether a certain congressman — previously identified by WaPo as ex-Florida Rep. Tom Feeney (pictured), who was part of the government’s investigation of lobbyist Jack Abramoff — violated House Rules by accepting private funding for a trip. The congressman maintained the trip was primarily for the purpose of legislative fact-finding.

After the House committee had closed the matter, prosecutors began an investigation into certain statements the congressman made in his responses to the committee. They served grand jury subpoenas on lawyers who repped the congressman before the committee. The congressman moved to quash the subpoenas on the ground, among others, that they called for testimony and documents protected by Article I, Section 6, the Speech or Debate Clause, of the Constitution. That happens to be clause that says of senators and representatives that "for any Speech or Debate in either House, they shall not be questioned in any other Place."

A three-judge D.C. Circuit panel heard arguments in January in a rare closed-door hearing. In the opinion unsealed yesterday, the court unanimously reversed a trial court ruling that the congressman must turn over documents and other testimony to prosecutors via a grand jury subpoena. The trial court had ruled for the Justice Department in May 2008 but did not release an opinion. (A lawyer for Feeney, a Republican who was defeated in the November 2008 elections, previously declined to comment to WaPo and BLT.)

But the matter isn’t over. A judge on the D.C. Circuit is calling for an en banc hearing of the case to clarify the scope of protection accorded to statements made during congressional ethics investigations, according to the BLT story.

The appeals court has twice ruled on whether information provided to a congressional ethics committee is protected and reached two differing opinions. Those opinions, one D.C. Circuit judge noted, are in "great tension with one another" and have created uncertainty. The scope of the privilege, the judge said, "must be clear and predictable" for it to work.

Full post as published by Law Blog - WSJ.com on July 10, 2009 (boomark / email).