A Question of Ethics

Are Members' Statements to Ethics Committees Protected?

July 28, 2009

Q: I am a staffer for a Member of the House, and we suspect that the ethics committee may want to interview him regarding an ongoing investigation. If the committee does ask to interview our Member, he would really like to cooperate, as he is a strong supporter of its role and we know that he has done nothing wrong. However, our concern is that we would not want to risk that anything he says might be used against him in some other proceeding outside the House. Are communications to the ethics committee protected?

A: The good news is that there is precedent directly addressing your decision. A court recently issued an opinion on the status of communications to Congressional ethics committees. The bad news is that the opinion does not provide a clear answer to your question. In fact, the opinion’s answer appears to be: “It depends.”

The protection that is afforded to communications with ethics committees has its roots in the Speech or Debate Clause of the Constitution. Article I, Section 6 states that “for any Speech or Debate in either House” Members “shall not be questioned in any other Place.” The Supreme Court has said that the purpose of the clause is to enforce the separation of powers among the three branches of government by protecting legislators from intimidation or accountability by the executive and judicial branches. While the Supreme Court itself has never squarely applied the clause to communications with ethics committees, this issue has been addressed three times by the D.C. Circuit Court of Appeals, the country’s next-highest authority on the issue.

The D.C. Court of Appeals first did so in 1978, in an action concerning a Senate Ethics Committee investigation into allegations that Sen. William Proxmire (D-Wis.) misused Senate rooms to benefit his wife’s travel business. In responding to the investigation, Proxmire submitted a letter to the panel.

He was later sued for allegedly making libelous statements in the letter. Proxmire argued that the Speech or Debate Clause prohibited the action, and the court agreed. It stated that Proxmire’s letter was “in a matter central to the jurisdiction of the Senate” and that there was no indication that Proxmire disseminated the letter to anyone who did not have a legitimate legislative need to review it.

The next case, in 1994, involved an investigation by the House Committee on Standards of Official Conduct into allegations that Rep. Charlie Rose (D-N.C.) had filed financial disclosure reports that failed to disclose more than $100,000 in loans. After its investigation, the ethics committee issued a “public letter of reproval” to Rose.

Subsequently, the Department of Justice filed a civil action against Rose based on his alleged false disclosure reports. Rose asked the court to dismiss the action, arguing that the Speech or Debate Clause barred the action because it was based on testimony Rose provided during the House ethics investigation.

The court disagreed. It stated that the clause did not apply to Rose’s testimony to the committee because Rose “was acting as a witness to facts relevant to a congressional investigation of his private conduct; he was not acting in a legislative capacity.” The court distinguished its opinion in Proxmire’s case by stating that it had involved an inquiry into the exercise of official powers as opposed to Rose’s inquiry, which concerned personal loans. The court observed that Proxmire’s letter was “in response to an allegation that [he] had misused Senate rooms, an allegation that directly touched the institution of the Senate and raised a possible violation of Senate rules.” (The court did not address the fact that the investigations of Rose and Proxmire both involved alleged violations of Congressional rules.)

Earlier this month, the D.C. Court of Appeals addressed the issue one more time in a decision regarding an unnamed lawmaker, who is presumed to be former Rep. Tom Feeney (R-Fla.). The House ethics committee had investigated whether Feeney had violated House rules by accepting a privately funded trip. After the ethics investigation, the Department of Justice began its own investigation, and a grand jury sought to compel Feeney to testify regarding statements he had made to the ethics committee. Feeney resisted, arguing that the Speech or Debate Clause prohibited him from being compelled to testify. The government responded that the clause should not apply because the ethics committee investigation did not concern an exercise of official powers but rather “receipt of a prohibited personal gift,” in this case a recreational vacation.

The court sided with Feeney, concluding that his case was more like Proxmire’s because the ethics investigation concerned whether the trip was an exercise of Feeney’s official powers or an abuse of those powers. The court found it particularly significant that Feeney had responded to the allegations against him by claiming that the purpose of the trip was legislative fact-finding. By contrast, the court said, in Rose’s case there was no connection between the Congressman’s statements to the ethics committee and any act claimed to have been done in a legislative capacity.

If this distinction seems less than clear to you, you are not alone. In fact, Judge Brett Kavanaugh wrote a separate opinion in the Feeney case agreeing with the result but disagreeing with the reasoning. In Kavanaugh’s view, the protection afforded by the Speech or Debate Clause to communications to the ethics committees should not turn on the content of the speech or the subject of the committee’s investigation. Rather, Kavanaugh said, on its face the clause applies to “any Speech … in either House.”

Unfortunately for you, the court has not yet adopted Kavanaugh’s bright-line test. Instead, it has suggested that the protection of a Member’s statements to ethics committees turns on whether the statements are connected to an act “done or claimed to have been done” in the Member’s legislative capacity. Proceed with caution.

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