In re: Grand Jury Subpoena

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

IN RE: GRAND JURY SUBPOENAS

Appeal from the United States District Court

for the District of Columbia

(No. 1:07mc00319)

Before: GINSBURG and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

Concurring opinion filed by Circuit Judge KAVANAUGH.

GINSBURG, Circuit Judge: The Ethics Committee of the

United States House of Representatives opened an

investigation into whether a certain 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-finding. 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,

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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 the 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 denying 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 the trip may have constituted an

illegal gift because it was financed 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 expenses 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 understanding 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 Ethics

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Committee. His lawyers’ first submission explained that the

congressman had “participated in what was described to him,

in advance, as a privately sponsored fact-finding trip”; they

also recounted his understanding 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 moved 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 additional ground that the documents

and testimony sought were protected 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 Ethics Committee’s inquiry, the

congressman was not acting in his legislative capacity but in

his personal capacity as a witness to facts relevant to the

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Committee’s investigation. An adverse determination of the

sort before us under the Speech or Debate Clause being

immediately appealable under the 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 order 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 questioned 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 infringing “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 which Members participate in

committee and House proceedings,” id. at 624-25.

Legislative fact-finding is therefore a protected activity.

McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C. Cir.

1976). Drawing upon the reasoning 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 performed by the Senator personally,”

408 U.S. at 616, the district court held a congressman may

“assert the Speech or Debate Clause to bar compelled

disclosure of testimony or documents from his attorney about

the congressman’s legislative acts.” The Government does

not contest that ruling. The Government does argue,

however, that statements the congressman made in response

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to the Ethics Committee’s inquiry into whether his trip

constituted an unlawful gift are 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 misused Senate rooms to benefit

his wife’s travel business. The 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 Senate 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 Rose had given to the House

Ethics Committee. Although the defendant’s obligation to

disclose his financial information was based upon his status as

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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 investigation 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 allegation 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 exercise 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 official power of legislative

fact-finding, which was precisely 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 was

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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 the subject of [the] inquiry”

into whether he had abused his office to help his wife’s travel

business, the congressman’s statements in this case are

protected because they were directly 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.

KAVANAUGH, Circuit Judge, concurring: I join the

opinion of the Court. I add this concurring opinion to express

my concern about the confusion 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 Congress — 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. CONST. 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 legislative 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 Debate 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 banc

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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 Attendance 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. CONST.

art. I, § 6, cl. 1 (emphasis 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 Clause the subject of controversy

during the ratification period. See JOSH CHAFETZ,

DEMOCRACY’S PRIVILEGED FEW 74, 87-88 (2007); JOSEPH

STORY, 1 COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 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); AKHIL REED AMAR, AMERICA’S

CONSTITUTION: A BIOGRAPHY 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 its

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Proceedings, punish its Members for disorderly Behaviour,

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

U.S. CONST. art. I, § 5, cl. 2 (emphasis added). This Clause

gives both Houses broad official powers to hold investigations

“for violations of statutory law, including crimes; for

violations of internal congressional rules; or for . . . even

purely private conduct by a Member that, in the House’s

opinion, reflects badly on it as an institution.” CHAFETZ,

DEMOCRACY’S PRIVILEGED FEW, 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 intersection of those two clauses of

the Constitution. Specifically, we address whether a

Member’s communications in an official congressional

disciplinary proceeding constitute “Speech . . . in either

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

In my view, the answer is straightforward. Regardless

whether the Member’s underlying “disorderly Behaviour” is

considered official or personal, 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.

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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 congressional 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 principles articulated by the Supreme

Court in its Speech or Debate Clause 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 to

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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 either 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 matters 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 test 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, the 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.

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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 testimony not privileged because

the proceeding purportedly arose out of his personal conduct

— failing to properly report certain 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 congressional proceeding.

Moreover, the Ray/Rose approach creates great

uncertainty. After all, it can be quite difficult to determine

whether an allegation of wrongdoing 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 gain. Indeed, the 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 Court has said, “An uncertain

privilege, or one which purports to be certain but results in

widely varying applications by the 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 persuasively explained this point

with respect to the Speech or Debate Clause:

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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 repose that the privilege will

have been adopted to provide, and sacrifices much of the

privacy and security that the privilege was supposed to

offer in the very process of determining its applicability

in the particular case.

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-

20, at 1017 (3d ed. 2000).

The Ray/Rose test has caused all three Branches great

difficulty. One can hardly fault 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 least 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.

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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 investigations and prosecutions — in

particular, cases involving alleged 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 reprimand (which, in turn, can augur a

defeat at the polls). In all events, 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 the protections of the Clause

against the interest in preventing 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 that 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 procedures 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 inventions’ 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 members 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 drafted 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 Power” 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.

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***

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 importance 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 course do not have that authority,

and I therefore join the opinion of the Court.