United States v. Robert Menendez

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-3459

UNITED STATES OF AMERICA

v.

ROBERT MENENDEZ,

Appellant

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal Action No. 2-15-cr-00155-001)

District Judge: Honorable William H. Walls

________________

Argued February 29, 2016

Before: AMBRO, JORDAN and SCIRICA, Circuit Judges

(Opinion filed: July 29, 2016)

Raymond M. Brown, Esquire

Greenbaum Rowe Smith & Davis LLP

P.O. Box 5600

Metro Corporate Campus One, Suite 4

Woodbridge, NJ 07095

Scott W. Coyle, Esquire

Abbe David Lowell, Esquire (Argued)

Christopher D. Man, Esquire

Chadbourne & Parke

1200 New Hampshire Avenue, N.W.

Washington, DC 20036

Jenny R. Kramer, Esquire

Chadbourne & Parke

1301 Avenue of the Americas

New York, NY 10019

Stephen M. Ryan, Esquire

McDermott Will & Emery

500 North Capitol Street, N.W.

Washington, DC 20001

Counsel for Appellant

Joseph P. Cooney, Esquire

Deputy Chief

Peter M. Koski, Esquire (Argued)

Deputy Chief

Monique Abrishami, Esquire

Amanda R. Vaughn, Esquire

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W., 12th Floor

Washington, DC 20005

2

Counsel for Appellee

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

A 22-count indictment (the “Indictment”) charges that

from 2006 to 2013 United States Senator Robert Menendez of

New Jersey solicited and accepted numerous gifts from his

friend Dr. Salomon Melgen, a Florida-based ophthalmologist.

In exchange, Senator Menendez allegedly used the power of

his office to influence, among other things, an enforcement

action against Dr. Melgen by the Centers for Medicare and

Medicaid Services (“CMS”) and to encourage the State

Department and the U.S. Customs and Border Patrol

(“Customs”) to intervene on Dr. Melgen’s behalf in a multi-

million dollar contract dispute with the Dominican Republic.

Senator Menendez appeals from the denial of his

motions to dismiss the Indictment. He argues that, as a United

States Senator, he is protected from prosecution under the

Speech or Debate Clause of our Constitution. U.S. Const. art.

I, § 6, cl. 1. Though it states literally that Members of

Congress “shall not be questioned in any other Place” for

“any Speech or Debate in either House,” its protections

extend to “legislative acts” that Members perform. Senator

Menendez contends that protected acts form the basis of the

Indictment. He claims also that Count 22 of the Indictment—

which charges him with knowingly or willfully falsifying,

concealing, or covering up gifts from Dr. Melgen in violation

of the Ethics in Government Act of 1978 (the “Ethics Act”), 5

U.S.C. app. 4 §§ 101-11, and 18 U.S.C. § 1001—must be

3

dismissed because it allows other Branches of Government to

intrude on Legislative Branch matters (a separation-of-powers

claim) and was brought in the wrong venue (New Jersey)

instead of where it belonged (the District of Columbia). We

conclude that Senator Menendez’s purportedly legislative acts

are not protected by the Speech or Debate Clause and that the

Indictment is not otherwise deficient. Thus we affirm.

I. Background

A. Senator Menendez, Multi-Dosing, and Dr.

Melgen’s Dispute with CMS

At the motion-to-dismiss stage, we generally accept as

true the factual allegations in an indictment. See United States

v. Huet, 665 F.3d 588, 595 (3d Cir. 2012). Our statement of

facts is therefore drawn from the Indictment except where it

is noted as drawn from evidence in the record.

In 2009 CMS suspected that Dr. Melgen had

overbilled Medicare for $8.9 million from 2007 to 2008 by

engaging in a prohibited practice known as “multi-dosing.”

Medicare policy required that each patient receiving the drug

Lucentis be treated using a separate vial, but Dr. Melgen

routinely used the extra solution from a single vial (so-called

“overfill”) to treat multiple patients. Because he was

reimbursed as if he used a separate vial for each patient, CMS

believed Dr. Melgen was paid for more vials of the drug than

he actually used.

Before CMS began formal proceedings against Dr.

Melgen, Senator Menendez instructed his Legislative

Assistant to call the Doctor about “a Medicare problem we

need to help him with.” A-105 (Indict. ¶ 148). The Legislative

Assistant replied that she and the Senator’s Deputy Chief of

Staff called Dr. Melgen twice and were “looking into how

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[they could] be helpful.” Id. (Indict. ¶ 149) (alteration in

original). After CMS formally notified Dr. Melgen that it may

seek reimbursement for the suspected overbilling, the

Senator’s Deputy Chief of Staff emailed the Legislative

Assistant, “I think we have to weigh in on [Dr. Melgen’s]

behalf . . . to say they can’t make him pay retroactively.” A-

107 (Indict. ¶¶ 158-59).

Senator Menendez’s staff continued to work with Dr.

Melgen’s lobbyist on the CMS dispute and eventually

arranged for the Senator to speak with Jonathan Blum, the

then- Acting Principal Deputy Administrator and Director of

CMS. Before that conversation, an official from the United

States Department of Health and Human Services (“HHS”)

wrote Mr. Blum, “We have a bit of a situation with Senator

Menendez, who is advocating on behalf of a physician friend

of his in Florida.” A-108 (Indict. ¶ 166). Meanwhile, Senator

Menendez’s Legislative Assistant drafted “Talking Points”

for the Senator that, along with statements about policy,

included statements like “I was contacted by Dr. Melgen

regarding an audit by First Coast, the Medicare administrative

contractor in Florida,” and “I am not weighing [in] on how

you should administer Lucentis, nor on how his specific audit

should be resolved but rather [am] asking you to consider the

confusing and unclear policy on this issue and not punish him

retroactively as a result.” A-108-09 (Indict. ¶ 167).

Ultimately, the conversation between Senator Menendez and

Mr. Blum did not resolve Dr. Melgen’s dispute with CMS.

The following month, after more developments in the case,

the Senator noted that Dr. Melgen was “still in the non[-]

litigant stage” and directed his Chief of Staff to “determine

who has the best juice at CMS and [HHS].” A-109 (Indict.

¶ 173).

Almost three years later, in June 2012, Senator

Menendez discussed multi-dosing with Marilyn Tavenner, the

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then-Acting Administrator of CMS. There is some evidence

in the record suggesting that Senator Menendez and Ms.

Tavenner met to discuss her nomination to become the

permanent Administrator of CMS. For example, the Senator’s

calendar noted that they were meeting about Ms. Tavenner’s

“nomination before the [Senate] Finance Committee.” A-462.

However, there is no evidence suggesting that her nomination

was actually discussed when they met. See A-1313 (Tavenner

FD-302); A-1254-55 (Martino FD-302).

To prepare for the meeting, the Senator met with Dr.

Melgen’s lobbyist. A handwritten note for Senator Menendez

mentioned Dr. Melgen and his lobbyist by name and

reminded the Senator to “[m]ake the larger policy case” to

Ms. Tavenner. A-1316. On the other side, Mr. Blum alerted

Ms. Tavenner to Senator Menendez’s interest in Dr. Melgen’s

case.

Once together, Senator Menendez pressed Ms.

Tavenner about multi-dosing and advocated on behalf of the

position favorable to Dr. Melgen in his Medicare billing

dispute with CMS. Contemporaneous notes reported that

Senator Menendez and Ms. Tavenner discussed CMS’s multi-

dosing policy but made no mention of Dr. Melgen or his case.

A follow-up call between Senator Menendez and Ms.

Tavenner took place a few weeks later. Before the call, Dr.

Melgen’s lobbyist prepared a memorandum entitled “Talking

Points: CMS Policy” and shared it with the Senator’s staff,

who incorporated it into a separate memorandum prepared for

Senator Menendez. A-114 (Indict. ¶ 201). The latter

memorandum noted that “[t]he subject of the call [wa]s to

discuss the issue [of] Medicare reimbursement when a

physician multi-doses from a single dose vial,” but it also

made several references to Dr. Melgen’s case, such as

“[w]e’re talking about payments made in 2007-2008” and

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“[i]t’s clear that CMS is taking steps to clarify both multi-

dosing from single-dose vials and overfills going forward.

This is, in effect, admitting that these policies didn’t exist

before and don’t apply during the 2007-2008 period.

Therefore they don’t have any bearing on the issue at hand.”

A-115 (Indict. ¶ 202). To the Government, the “issue at hand”

was Dr. Melgen.

During the call, Ms. Tavenner said CMS would not

alter its position on multi-dosing and Senator Menendez

threatened to raise the issue of multi-dosing directly with

Kathleen Sebelius, the then-Secretary of HHS who oversaw

CMS. After the call, Dr. Melgen’s lobbyist spoke with one of

the Senator’s staffers, and the staffer reported to the Senator

that the lobbyist was “encouraged, but mainly because he’s

increasingly confident they won’t have a leg to stand on

should [Dr. Melgen] litigate. But we’re all hopeful it won’t

come to that.” A-116 (Indict. ¶ 207). The Indictment does not

allege specifically that Senator Menendez mentioned Dr.

Melgen by name to Ms. Tavenner.

A week later, the scheduler for the then-Majority

Leader of the Senate, Harry Reid, arranged a meeting among

Senator Reid, Senator Menendez, and Secretary Sebelius.

Senator Menendez told his staff that he did not want to tell

Dr. Melgen about the arrangement “so that I don’t raise

expectation[s] just in case it falls apart,” A-117 (Indict.

¶ 210), though the Senator met with Dr. Melgen’s lobbyist

before the meeting and received a summary of the latest

developments in Dr. Melgen’s dispute with CMS. At the

meeting with Secretary Sebelius and Senator Reid, Senator

Menendez advocated on behalf of Dr. Melgen’s position in

the Medicare billing dispute, focusing on his specific case and

asserting unfair treatment of it. Mr. Blum, who accompanied

the Secretary to the meeting on behalf of CMS, later told the

FBI he did not recall anyone mentioning Dr. Melgen by

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name, but said it was clear to him that the Senators were

talking about Dr. Melgen and that the issue with his billing

“was an isolated issue as opposed to a general problem.” A-

1136 (Blum FD-302). Senator Reid told the FBI that Dr.

Melgen’s name probably came up during the meeting because

his “individual situation was clearly the purpose of the

meeting and they would have otherwise been speaking in a

vacuum.” A-1301 (Reid FD-302). Secretary Sebelius told

Senator Menendez that because Dr. Melgen’s case was in the

administrative appeals process, she had no power to influence

the matter.

B. Senator Menendez, Port Security, and Dr. Melgen’s

Dispute with the Dominican Republic

In February 2012, Dr. Melgen obtained exclusive

ownership of a contract held by a company in the Dominican

Republic named ICSSI. The contract gave ICSSI exclusive

rights to install and operate X-ray imaging equipment in

Dominican ports for up to 20 years and required all shipping

containers to be X-rayed at a tariff of up to $90 per container.

ICSSI and the Dominican Republic disputed the validity of

the contract and had already begun litigating the issue.

The following month, a former Menendez staffer who

worked for Dr. Melgen requested a phone call with Assistant

Secretary of State William Brownfield to discuss ICSSI’s

contract. A State Department official reported to the Assistant

Secretary that the former staffer “dropped the name of Sen.

Menendez pretty squarely as having an interest in [the] case.”

A-98 (Indict. ¶ 119). That former staffer later met with the

Assistant Secretary and represented that he (the staffer) spoke

on behalf of “a United States entity involved in a contract

dispute with the Government of the Dominican Republic

concerning the screening of shipping containers at Dominican

8

ports.” Id. (Indict. ¶ 120). He referenced New Jersey

connections to the dispute.

Senator Menendez’s Senior Policy Advisor arranged a

meeting in May 2012 between the Senator and Assistant

Secretary Brownfield about U.S. policy relating to Dominican

port security. At the meeting, Senator Menendez advocated

for Dr. Melgen’s interest in his foreign contract dispute,

questioning the Assistant Secretary about the dispute and

expressing dissatisfaction with the State Department’s lack of

initiative in the case. Assistant Secretary Brownfield later

summarized the meeting in an email to his staff, noting that

Senator Menendez “allud[ed] to” a particular company and

that the Senator threatened to call a hearing if there was no

solution. A-101 (Indict. ¶ 125).

In June 2012, Senator Menendez’s Senior Policy

Advisor emailed Assistant Secretary Brownfield’s staff for an

update on the Dominican port issue. A few days later, the

Assistant Secretary told his staff that Dr. Melgen’s case “is

the case about which Sen. Menendez threatened to call me to

testify at an open hearing. I suspect that was a bluff, but he is

very much interested in its resolution. A reminder that I owe

the Senator an answer to the question ‘What can we do to

resolve this matter?’” Id. (Indict. ¶ 129). Assistant Secretary

Brownfield later forwarded to his staff another email from Dr.

Melgen’s representative and wrote, “More on [Senator]

Menendez’[s] favorite DR port contract case.” A-102 (Indict.

¶ 131).

Senator Menendez subsequently directed his Chief

Counsel to ask Customs about its rumored donation to the

Dominican Republic of equipment for the monitoring and

surveillance of shipping containers. The equipment would

have made it easier for the Dominican Republic to increase

port security without honoring its disputed contract with

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ICSSI. The Senator’s Chief Counsel emailed a Customs

employee the following:

My boss asked me to call you about this.

Dominican officials called him stating that there

is a private company that has a contract with

[the Department of Homeland Security] to

provide container shipment

scanning/monitoring in the [Dominican

Republic]. Apparently, there is some effort by

individuals who do not want to increase security

in the [Dominican Republic] to hold up that

contract’s fulfillment. These elements (possibly

criminal) want [Customs] to give the

government equipment because they believe the

government use of the equipment will be less

effective than the outside contractor. My boss is

concerned that the [Customs] equipment will be

used for this ulterior purpose and asked that you

please consider holding off on the delivery of

any such equipment until you can discuss this

matter with us[—]he’d like a briefing.

Id. (Indict. ¶ 133). The employee responded that Customs was

not providing the Dominican Republic with any such

equipment and confirmed with Senator Menendez’s Chief

Counsel that the “private company” referred to was ICSSI. A-

103 (Indict. ¶¶ 139-42).

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C. Senator Menendez’s Financial Disclosures

Under the Ethics Act, Senators are required to file with

the Secretary of the United States Senate in Washington,

D.C., an annual financial disclosure form reporting, among

other things, income, gifts, and financial interests from the

prior calendar year. While Senator Menendez was subject to

that obligation, Dr. Melgen and his companies allegedly gave

the Senator reportable gifts, including “private, chartered, and

first-class commercial flights,” a car service, and hotel stays

in Paris, France, and Punta Cana, Dominican Republic. A-135

(Indict. ¶ 272). Senator Menendez did not disclose any

reportable gifts from Dr. Melgen in his filings during the

relevant years. The Indictment claims that the Senator

engaged in conduct “in the district of New Jersey and

elsewhere” to falsify, conceal, and cover up those allegedly

reportable gifts. Id. (Indict. ¶ 271).

D. Procedural History

In late 2014, two Menendez staffers (one current and

one former) invoked the privilege conferred by the Speech or

Debate Clause to withhold testimony before a federal grand

jury investigating the Senator’s dealings with Dr. Melgen.

The parties disputed how protective the privilege was, and the

District Court ultimately granted the Government’s motion to

compel the staffers’ testimony. On appeal, we ruled that the

privilege did not necessarily protect Senator Menendez’s

“informal communications with Executive Branch officials,

one of whom [(Ms. Tavenner)] was at the time a presidential

nominee whose nomination was pending before the United

States Senate.” In re Grand Jury Investig. (Menendez), 608 F.

App’x 99, 101 (3d Cir. 2015). However, we required

additional fact-finding to determine if the privilege applied.

Thus we remanded the matter to the District Court for

“specific factual findings about the communications

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implicated by the grand jury questions” and with instructions

to “separately analyze[]” the “contents and purposes of each

disputed communication.” Id. On remand, the Government

presented the disputed evidence through a summary witness

and the District Court did not rule on the privilege issue

again.

The grand jury decided to charge Senator Menendez

and Dr. Melgen, and the Indictment issued in April 2015. The

Senator moved to dismiss on several grounds, including the

Speech or Debate privilege and, with respect to Count 22

alleging reporting violations under the Ethics Act, the

separation of powers among the Branches of Government and

faulty venue. The District Court denied the motions. It held

that Senator Menendez failed to prove that the Indictment

references any legislative acts covered by the Speech or

Debate Clause. It also ruled that the Ethics Act charge was

consistent with separation-of-powers constraints and that

venue was proper in New Jersey.

Senator Menendez then took this appeal. The

Government moved to dismiss parts of it for lack of

jurisdiction, arguing that the District Court’s denial of the

motion to dismiss for lack of venue was not immediately

appealable. See, e.g., In re Federal-Mogul Global, Inc., 300

F.3d 368, 378 (3d Cir. 2002). We agreed, but because the

“appropriate mechanism” for reviewing an allegedly

improper ruling regarding venue in the absence of an

appealable final order is mandamus, Sunbelt Corp. v. Noble,

Denton & Assocs., Inc., 5 F.3d 28, 30 (3d Cir. 1993), we

denied the Government’s motion and restricted Senator

Menendez to raising the venue issue only in the form of a

“request for a petition for a writ of mandamus concerning

venue,” Order, Dec. 11, 2015.

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The District Court exercised jurisdiction under 18

U.S.C. § 3231. We have jurisdiction over the Speech or

Debate Clause issues under the collateral order doctrine.

United States v. McDade, 28 F.3d 283, 288 (3d Cir. 1994).

Under the specific circumstances here, we have pendent

appellate jurisdiction over Senator Menendez’s separation-of-

powers claims. See CTF Hotel Holdings, Inc. v. Marriott

Int’l, Inc., 381 F.3d 131, 136 (3d Cir. 2004). And we have

jurisdiction over Senator Menendez’s request for a petition

for a writ of mandamus under 28 U.S.C. § 1651(a).

II. Standard of Review

“[O]ur standard of review is mixed” for motions to

dismiss. Huet, 665 F.3d at 594. We review the District

Court’s legal conclusions de novo and its factual

determinations, including its findings about the contents and

purposes of the acts alleged in the Indictment, for clear error.

Id. Senator Menendez argues that we should review the

District Court’s findings de novo as findings of constitutional

fact, i.e., “a fact whose ‘determination is decisive of

constitutional rights.’” Zold v. Twp. of Mantua, 935 F.2d 633,

636 (3d Cir. 1991) (quoting N.J. Citizen Action v. Edison

Twp., 797 F.2d 1250, 1259 (3d Cir. 1986)). But factual

findings are not subject to plenary review simply because

they are material to constitutional analyses. Outside the

unique First Amendment context that requires “independent

appellate review” of certain factual findings, Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 510 (1984), we

review findings of historical fact for clear error even when

they affect constitutional rights, see Ornelas v. United States,

517 U.S. 690, 699 (1996) (holding that findings of narrative

or historical fact related to Fourth Amendment rights are

reviewed for clear error); see also United States v. Renzi, 651

F.3d 1012, 1020-21 (9th Cir. 2011) (reviewing for clear error

a district court’s findings of fact in the context of a motion to

13

dismiss an indictment on Speech or Debate Clause grounds).

Here the District Court found historical facts, so we will

review those findings for clear error notwithstanding their

relevance to the constitutional analysis.

Under the clear error standard, reversal of the District

Court’s factual findings is warranted only when “the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”

United States v. Lowe, 791 F.3d 424, 427 (3d Cir. 2015). “[I]f

the district court’s account of the evidence is plausible in light

of the record viewed in its entirety, we will not reverse it even

if, as the trier of fact, we would have weighed the evidence

differently.” United States v. Price, 558 F.3d 270, 277 (3d

Cir. 2009) (internal quotation marks omitted). Although our

review at this stage of a prosecution is ordinarily limited to

the allegations in the Indictment, see United States v.

DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000), we can

consider extrinsic evidence to determine whether the Speech

or Debate Clause applies, see Gov’t of the Virgin Islands v.

Lee, 775 F.2d 514, 524 (3d Cir. 1985).

The mandamus petition pertaining to Count 22 is

“subject to a stringent standard of review.” Delalla v.

Hanover Ins., 660 F.3d 180, 183 n.2 (3d Cir. 2011). “[I]n

order to grant mandamus relief, ‘an appellate court must find

a clear legal error calling for relief that can be obtained

through no other means.’” Id. (emphasis omitted) (quoting

Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1074 (3d

Cir. 1983)). In other words, that relief is “appropriate only

upon a showing of (1) a clear abuse of discretion or clear

error of law; (2) a lack of an alternate avenue for adequate

relief; and (3) a likelihood of irreparable injury.” United

States v. Wright, 776 F.3d 134, 146 (3d Cir. 2015).

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III. Discussion

A. The Speech or Debate Clause

To repeat, the Speech or Debate Clause provides that

“for any Speech or Debate in either House” Members of

Congress “shall not be questioned in any other Place.” U.S.

Const. art. I, § 6, cl. 1. The “central role” of the Clause is to

“prevent intimidation of legislators by the Executive and

accountability before a possibly hostile judiciary.” In re

Grand Jury, 821 F.2d 946, 952 (3d Cir. 1987) (quoting

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502

(1975)). It was “not written into the Constitution simply for

the personal or private benefit of Members of Congress, but

to protect the integrity of the legislative process by insuring

the independence of individual legislators.” United States v.

Brewster, 408 U.S. 501, 507 (1972); see also Tenney v.

Brandhove, 341 U.S. 367, 377 (1951) (stating that legislators

must be “immune from deterrents to the uninhibited discharge

of their legislative duty, not for their private indulgence but

for the public good”).

The Supreme Court has read the Clause “broadly” to

guarantee Members of Congress immunity from criminal or

civil liability based on their legislative acts, Gravel v. United

States, 408 U.S. 606, 615 (1972), and to create a privilege

against the use of “evidence of a legislative act” in a

prosecution or before a grand jury, United States v. Helstoski,

442 U.S. 477, 487 (1979); see Gravel, 408 U.S. at 622. But

because the privilege “was designed to preserve legislative

independence, not supremacy,” invocations of it that go

“beyond what is needed to protect legislative independence”

must be “closely scrutinized.” Hutchinson v. Proxmire, 443

U.S. 111, 126-27 (1979). More specifically, “the Speech or

Debate Clause must be read broadly to effect[] its purpose of

protecting the independence of the Legislative Branch, but no

15

more than the statutes we apply . . . was its purpose to make

Members of Congress super-citizens, immune from criminal

responsibility.” Brewster, 408 U.S. at 516. A Member seeking

to invoke the Clause’s protections bears “the burden of

establishing the applicability of legislative immunity . . . by a

preponderance of the evidence.” Lee, 775 F.2d at 524 (citing

In re Grand Jury Investig. (Eilberg), 587 F.2d 589, 597 (3d

Cir. 1978)).

In practice, the Speech or Debate privilege affords

protection from indictment only for “legislative activity.”

Gravel, 408 U.S. at 625; see also United States v. Johnson,

383 U.S. 169, 184-85 (1966); United States v. Helstoski, 635

F.2d 200, 205-06 (3d Cir. 1980). Legislative acts have

“consistently been defined as [those] generally done in

Congress in relation to the business before it.” Brewster, 408

U.S. at 512. They do not include “all things in any way

related to the legislative process.” Id. at 516; see Gravel, 408

U.S. at 625 (“That Senators generally perform certain acts in

their official capacity as Senators does not necessarily make

all such acts legislative in nature.”). The takeaway is that

“[t]he Speech or Debate Clause does not immunize every

official act performed by a member of Congress.” McDade,

28 F.3d at 295. Rather, it protects only acts 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 other

matters which the Constitution places within the jurisdiction

of either House.” Gravel, 408 U.S. at 625.

This plays out in a two-step framework for identifying

legislative acts protected by the Speech or Debate Clause.

First, we look to the form of the act to determine whether it is

inherently legislative or non-legislative. Some acts are “so

clearly legislative in nature that no further examination has to

16

be made to determine their appropriate status.” Lee, 775 F.2d

at 522. Examples of “manifestly legislative acts” include

introducing and voting on proposed resolutions and

legislation, introducing evidence and interrogating witnesses

during committee hearings, subpoenaing records for

committee hearings, inserting material into the Congressional

Record, and delivering a speech in Congress. See id. (listing

cases). And even though “such manifestly legislative acts

may have been pursued and accomplished for illegitimate

purposes, such as personal gain, the acts themselves [are]

obviously legislative in nature.” Id. Thus “an unworthy

purpose” does not eliminate Speech or Debate protection.

Johnson, 383 U.S. at 180 (quoting Tenney, 341 U.S. at 377);

see also Eastland, 421 U.S. at 508 (“Our cases make clear

that in determining the legitimacy of a congressional act we

do not look to the motives alleged to have prompted it.”);

Youngblood v. DeWeese, 352 F.3d 836, 840-41 (3d Cir. 2003)

(concluding without any “consideration[] of intent and

motive” that a legislator’s appropriation of state funds was

legislative activity).

On the other side of the spectrum, some acts are so

clearly non-legislative that no inquiry into their content or

underlying motivation or purpose is needed to classify them.

Examples include legitimate constituent services such as “the

making of appointments with Government agencies,

assistance in securing Government contracts, preparing so-

called ‘news letters’ to constituents, news releases, and

speeches delivered outside the Congress,” Brewster, 408 U.S.

at 512, and, of course, illegitimate activities such as accepting

bribes in exchange for taking official action, id. at 526. Even

if these non-legislative acts involve policy or relate to

protected legislative activity, they are not protected. See

Hutchinson, 443 U.S. at 130-33 (holding that newsletters and

press releases are outside the scope of the Speech or Debate

Clause even if they address matters of legislative

17

importance); see also Brewster, 408 U.S. at 515 (“In no case

has this Court ever treated the Clause as protecting all

conduct relating to the legislative process.”).

If an act is neither manifestly legislative nor clearly

non-legislative, then it is ambiguously legislative, and we

proceed to the second step of the Speech or Debate analysis.

There we consider the content, purpose, and motive of the act

to assess its legislative or non-legislative character. See Lee,

775 F.2d at 522-24. Ambiguously legislative acts—including

trips by legislators and informal1 contacts with the Executive

Branch—will be protected or unprotected based on their

particular circumstances. See id. at 524. In Lee, for example, a

legislator from the Virgin Islands faced criminal charges for a

trip he took supposedly on the Government’s behalf. He

argued that legislative immunity barred the prosecution

because he engaged in legislative fact-finding during the trip.

We first explained that there was nothing inherently

legislative or non-legislative about the trip because it was

only legislative to the extent it “involved legislative fact-

finding.” Id. at 522. Rather, “[i]t is the content of Lee’s

private conversations, and not the mere fact that the

conversations took place, that determines whether Lee is

entitled to legislative immunity.” Id. We then determined that

Lee’s conversations were not “in fact . . . legislative in nature

so as to trigger the immunity.” Id. To reach that conclusion,

we considered “the content of Lee’s private conversations”

and his “purpose or motive” for engaging in them. Id. at 522-

24.

1

We use the word “informal” to exclude manifestly

legislative acts, such as communications with Executive

Branch officials during committee hearings or the passage of

legislation, that are protected even if they influence or coerce

the Executive Branch.

18

Senator Menendez proposes two alternative standards

for distinguishing between legislative and non-legislative acts

at step two. He first argues that an ambiguously legislative act

should be “viewed objectively and, if it appears legislative,

that should end the inquiry with the privilege upheld.”

Menendez Br. at 33. But Lee expressly rejected the view that

Speech or Debate immunity “protects not only legislative

acts, but also acts which are purportedly or apparently

legislative in nature.” 775 F.2d at 522 (emphasis in original).

Rather, we consider a legislator’s purpose and motive to the

extent they bear on whether “certain legislative acts were in

fact taken” or whether “non-legislative acts [are being]

misrepresented as legislative” in order to invoke the Speech

or Debate privilege improperly. Id. at 524. Only after we

conclude that an act is in fact legislative must we refrain from

inquiring into a legislator’s purpose or motive. Id. Lee’s

holding is not limited to after-the-fact characterizations of

acts as legislative, as Senator Menendez contends, nor does it

suggest that the privilege prevents us from considering

evidence of a purportedly legislative act’s true character.

The authority Senator Menendez cites to the contrary

misses the mark. He cites a statement in United States v.

McDade for the principle that it is inappropriate to consider a

legislator’s motives when determining the character of an

ambiguously legislative act. McDade considered whether the

Speech or Debate Clause protected a Congressman’s two

ambiguously legislative letters, one that “openly lobbie[d]”

the Executive Branch on behalf of a particular business in his

district and one that discussed a “broader policy question”

without “explicitly refer[ring] to any particular business.” 28

F.3d at 300. Though the McDade Court suggested that the

second letter “appear[ed] on its face” to be ambiguously

legislative, it resolved the case without deciding whether the

letters were legislative activity within the scope of the Clause.

19

Id. The statement is thus a dictum, neither binding on us nor

even a conclusive determination of the relevant legal issue.

Senator Menendez next cites three distinguishable

cases from other circuits. Two involve manifestly legislative

activity rather than ambiguously legislative activity that might

appear legislative on its face. See United States v. Dowdy, 479

F.2d 213, 224-26 (4th Cir. 1973) (holding that actions

pursuant to an investigation authorized by the Chairman of

the House Subcommittee on Investigations were legislative

notwithstanding evidence that the investigation was

performed in exchange for a bribe); McSurely v. McClellan,

553 F.2d 1277, 1296 (D.C. Cir. 1976) (en banc) (per curiam)

(holding that a Congressman’s actions pursuant to an

officially sanctioned Congressional investigation would be

legislative notwithstanding evidence of impure motive, but

noting that his inquiry into private matters beyond the scope

of the investigation were not); see also Lee, 775 F.2d at 524

(treating Dowdy as limited to cases involving “admittedly”

legislative activity). And the third case is consistent with Lee

because it allows the Government to inquire into the reasons

for apparently legislative activity. See United States v. Biaggi,

853 F.2d 89, 103 (2d Cir. 1988) (ruling that the Government

may properly present arguments about the “non[-]legislative

reasons” for the defendant’s purportedly legislative act); see

also id. at 104 (“The fact that one of the purposes of the travel

may have been the conduct of legislative activity does not

preclude a conviction.”). We therefore reject Senator

Menendez’s first argument that the Speech or Debate Clause

necessarily protects apparently legislative activity. Courts

may dig down to discern if it should be deemed legislative or

non-legislative.

Senator Menendez’s second alternative posits that the

Speech or Debate privilege protects any effort by a Member

to oversee the Executive Branch, including informal efforts to

20

influence it. See Menendez Br. at 14-18, 19 & n.5; see also

Hutchinson, 443 U.S. at 136 (Stewart, J., concurring in part

and dissenting in part). That blanket approach is much too

broad, as it would immunize many illegal acts that have only

dubious ties to the legislative process. Like all acts by

Members, oversight activities exist along a spectrum: the

Speech or Debate protection is obvious at the edges where

they are manifestly legislative or clearly non-legislative, but it

is not obvious in the middle ground where they are

ambiguously legislative and consideration of their content,

purpose, and motive is necessary. See McDade, 28 F.3d at

299-300. Senator Menendez’s informal communications with

Executive Branch officials are ambiguously legislative, so

this case is fought on that middle ground, and claims of

“oversight” do not automatically result in Speech or Debate

protection.

The Government takes a much harder line: it argues

that the Speech or Debate “protection does not extend to

Legislative attempts to influence Executive actions, as those

actions are the domain of the Executive.” Gov’t Br. at 24.

Though it concedes that the Clause protects formal efforts to

encourage or command the Executive Branch to do

something (e.g., by “voting for a resolution,” “preparing

investigative reports,” “addressing a congressional

committee,” or “speaking before the legislative body in

session”), id. at 23 (quoting Youngblood, 352 F.3d at 840), it

nonetheless contends that any other attempts to influence the

Executive Branch are categorically outside the scope of the

immunity, see id. at 25 (“[T]he Speech or Debate Clause does

not apply to efforts by members of Congress to influence the

Executive Branch.” (quoting McDade 28 F.3d at 299)).

We disagree with the Government’s all-encompassing

position. Consistent with our two-step approach to Speech or

Debate privilege determinations, informal efforts to influence

21

the Executive Branch are ambiguously legislative in nature

and therefore may (or may not) be protected legislative acts

depending on their content, purpose, and motive. In general,

efforts by legislators to “cajole” and “exhort” Executive

Branch officials “with respect to the administration of a

federal statute” are not protected. Gravel, 408 U.S. at 625.

They include efforts to intervene in decisions pending before

the Executive Branch that would mainly affect one particular

party. See McDade, 28 F.3d at 300; see also Menendez Br. at

20 (distinguishing protected oversight from unprotected

oversight based on “whether the Member was simply

assisting a particular person or was addressing a broader

policy question” (internal quotation marks omitted)). But

informal attempts to influence the Executive Branch on

policy, for actual legislative purposes, may qualify as “true

legislative oversight” and merit Speech or Debate immunity.

McDade, 28 F.3d at 304 (Scirica, J., concurring); see In re

Grand Jury Investig. (Menendez), 608 F. App’x at 100

(noting that “informal oversight” is not necessarily protected,

but may be in some cases even though it is “not manifestly

legislative”). Like all inquiries into ambiguously legislative

acts, that distinction will turn on the content, purpose, and

motive of the communications at issue. The consequence of

accepting the Government’s position would be to place

legitimate policy-based efforts under the specter of possible

indictment.

Senator Menendez does not prevail, however, because

the acts alleged in this case were essentially lobbying on

behalf of a particular party and thus, under the specific

circumstances here, are outside the constitutional safe harbor.

He claims that the Indictment improperly references five

supposedly legislative acts: (1) his meeting with Ms.

Tavenner; (2) his follow-up call with her; (3) his meeting

with Secretary Sebelius; (4) his meeting with Assistant

Secretary Brownfield; and (5) his staff’s communications

22

with Customs employees. Senator Menendez’s opening brief

suggests that the District Court erred in its treatment of

several other acts alleged in the Indictment, but he specifies in

his reply brief that he is challenging only these five acts on

appeal.2 The District Court found that these acts were

informal attempts to influence the Executive Branch

specifically on Dr. Melgen’s behalf and not on broader issues

of policy. See, e.g., A-20 (“[Senator] Menendez fails to meet

his burden to demonstrate that the primary goal of these

communications was not to lobby the Executive Branch to

enforce Dr. Melgen’s specific contract, a non-legislative

activity.”); A-21 (“The Court finds that Senator Menendez

does not meet his burden to establish that the predominant

purpose of these emails was to gather information for a

legislative purpose rather than to lobby for a postponement of

2

For example, he argued that a meeting he attended

between Dr. Melgen and Senator Tom Harkin, the then-Chair

of the Senate Health, Education, Labor, and Pensions

Committee, was protected legislative fact-finding. But even

there, evidence suggests that Senator Menendez was not

engaged in legislative fact-finding, but rather that he and Dr.

Melgen sought Senator Harkin’s assistance with Dr. Melgen’s

particular CMS dispute. See, e.g., A-1152-53 (Harkin FD-

302) (“[Senator] Harkin believes [Senator] Menendez asked

him to meet with [Dr.] Melgen because [Dr.] Melgen had a

problem that needed to be addressed.”); A-112 (Indict. ¶ 186)

(alleging that an email from a Menendez staffer to Senator

Harkin’s Chief of Staff mentioned Dr. Melgen’s CMS

dispute). Hence the District Court’s finding that the meeting

was an attempt to assist Dr. Melgen specifically was not

clearly erroneous, and the meeting was unprotected by the

Speech or Debate privilege.

23

planned official action.”). Unless those findings were clearly

erroneous, they require us to hold that the challenged acts are

not legislative and that the Speech or Debate privilege does

not apply to them. And for the reasons that follow, clear error

is not evident.

Senator Menendez argues that the five challenged acts

were legislative because they addressed questions of policy.

He relies primarily on allegations from the Indictment and

evidence in the record showing that each of the challenged

acts involved policy discussions. See, e.g., A-114 (Indict.

¶ 200) (“[Senator] Menendez pressed [Ms. Tavenner] about

multi-dosing and Medicare payments, and advocated on

behalf of the position favorable to [Dr.] Melgen.” (emphases

added)); A-116 (Indict. ¶ 204) (alleging that the follow-up

call with Ms. Tavenner addressed CMS’s “position regarding

billing” and its decision to “follow[] the CDC guidelines”);

A-99-100 (Indict. ¶ 123) (alleging that Senator Menendez

requested a meeting with Assistant Secretary Brownfield “to

talk about DR (cargo from [Dominican Republic] coming into

US ports)”); A-1314 (Tavenner FD-302) (reporting that Ms.

Tavenner’s follow-up call with Senator Menendez addressed

“the policy regarding billing for vials”); A-1135 (Blum FD-

302) (reporting that the “focus of the conversation” at the

Sebelius meeting was “the policy,” and that Senator

Menendez and Senator Reid told Secretary Sebelius they

“were not there to talk about a particular case; they were there

to talk about policy”); A-1306 (Sebelius FD-302) (reporting

that Senator Menendez and Senator Reid spoke “broadly

about . . . healthcare providers”). He also points to allegations

and evidence suggesting that Dr. Melgen was not mentioned

by name in the supposedly protected communications. See,

e.g., A-101 (Indict. ¶ 125) (alleging that the “issue of a US

company” doing business in the Dominican Republic was

only “allud[ed] to” at the Brownfield meeting); Menendez Br.

at 41 (“No participant stated that [Dr.] Melgen or his case was

24

mentioned.”); id. at 45 (“[N]obody could recall Dr. Melgen’s

name being mentioned.”); Menendez Reply Br. at 24 (“[T]he

Indictment does not allege th[e] email [to Customs] identified

[Dr.] Melgen or his company.” (emphasis in original)). In

light of these observations, Senator Menendez asserts that the

District Court clearly erred when it found that the challenged

acts were informal attempts to influence the Executive

Branch specifically on Dr. Melgen’s behalf and not on

broader issues of policy.

But the existence of evidence to support an alternative

finding—that Senator Menendez was concerned with broader

issues of policy—does not mean that the District Court’s

findings are clearly erroneous. See Anderson v. Bessemer

City, 470 U.S. 564, 574 (1985). For there is much to confirm

that the District Court’s “account of the evidence is plausible

in light of the record viewed in its entirety.” Id. First,

evidence exists that Dr. Melgen or his case was mentioned

specifically during each of the challenged acts. See, e.g., A-

1307 (Sebelius FD-302) (reporting that Secretary Sebelius

told Senator Menendez “the case at issue [(i.e., Dr. Melgen’s

case)] was no longer within [her] jurisdiction because it was

in the appeals process” (emphasis added)); A-1301 (Reid FD-

302) (reporting that Dr. Melgen’s name probably came up

during the Sebelius meeting “because [Dr.] Melgen’s

individual situation was clearly the purpose of the meeting

and they would have otherwise been speaking in a vacuum”);

A-1302 (Reid FD-302) (“[Senator] Reid considered his role

in setting up the meeting with [Secretary] Sebelius to be

offering assistance to [Senator] Menendez in order that

[Senator] Menendez might be able to offer assistance to [Dr.]

Melgen.”); A-100-02 (Indict. ¶¶ 124-131) (alleging that

Senator Menendez “questioned [Assistant Secretary

Brownfield] about the contract dispute between [Dr. Melgen]

and the Dominican Republic”). The unrebutted allegations of

the Indictment and evidence in the record further suggest that

25

participants in the challenged acts were aware that their

policy discussions related specifically to Dr. Melgen. See,

e.g., A-1313 (Tavenner FD-302) (reporting that Mr. Blum

told Ms. Tavenner before her meeting with Senator Menendez

that the Senator was interested in Dr. Melgen’s case); A-118

(Indict. ¶ 216) (alleging that Senator Menendez “focus[ed] on

[Dr.] Melgen’s specific case” during the Sebelius meeting and

“assert[ed] that [Dr.] Melgen was being treated unfairly”); A-

1307 (Sebelius FD-302) (reporting that Secretary Sebelius

told Senator Menendez at their meeting that she had no power

to influence Dr. Melgen’s case); A-98 (Indict. ¶ 119)

(alleging that Assistant Secretary Brownfield was told before

his meeting with Senator Menendez that the latter “pretty

squarely” had an “interest” in Dr. Melgen’s case); A-100-02

(Indict. ¶¶ 124-131) (alleging that, after the Brownfield

meeting, Assistant Secretary Brownfield referred to Dr.

Melgen’s case as the one “about which Sen. Menendez

threatened to call me to testify” and “[Senator] Menendez’[s]

favorite DR port contract case”).

In sum, evidence is plentiful that to most of those

involved the focal point of the meetings with Executive

Branch officials was Dr. Melgen. That Senator Menendez

framed those meetings using the language of policy does not

entitle them unvaryingly to Speech or Debate protection.

Rather, for every mention of policy concerns there is

substantial record support for the District Court’s findings

that those concerns were instead attempts to help Dr. Melgen.

The evidence in favor of Senator Menendez will no doubt

channel forcefully his position at trial, where the burden will

be on the Government to convince jurors to find in its favor

beyond a reasonable doubt. But at this stage the burden is on

Senator Menendez. It was not clear error for the District

Court to find that the Senator acted primarily for Dr. Melgen.

26

Second, there is evidence about the preparations for

the challenged acts suggesting that Dr. Melgen was the

primary focus of the supposedly protected communications.

Unrebutted allegations in the Indictment and materials in the

record suggest that Senator Menendez prepared for the CMS-

related acts with an eye toward Dr. Melgen’s specific

situation. See, e.g., A-114 (Indict. ¶ 199) (alleging that

Senator Menendez prepared for the Tavenner meeting by

speaking with Dr. Melgen’s lobbyist); A-115 (Indict. ¶ 202)

(alleging that a memo prepared for Senator Menendez in

advance of the Tavenner call described the “issue at hand” as

“payments made in 2007-2008,” the same years as Dr.

Melgen’s purported overbilling); SA-5-8 (email from Dr.

Melgen’s lobbyist to a Menendez staffer explaining the scope

of Dr. Melgen’s dispute with CMS in advance of Senator

Menendez’s follow-up call with Ms. Tavenner); A-117

(Indict. ¶ 210) (alleging that Senator Menendez did not tell

Dr. Melgen about the Sebelius meeting so as not to “raise

[his] expectation[s] just in case it falls apart”). We do not

accept Senator Menendez’s suggestion that the Speech or

Debate Clause somehow prevents consideration of relevant

circumstantial evidence simply because it predated the

purportedly legislative act. See Lee, 775 F.2d at 524-25.

Third, there are unrebutted allegations and materials in

the record suggesting that Dr. Melgen and his lobbyist were

particularly interested in following up with Senator Menendez

on all of the challenged acts. See, e.g., A-116 (Indict. ¶ 205)

(alleging that Dr. Melgen’s lobbyist wrote to a Menendez

staffer after the Tavenner meeting that he (the lobbyist) was

“eager to learn how the call went today”); id. (Indict. ¶ 207)

(alleging that Dr. Melgen’s lobbyist told a Menendez staffer

that he (the lobbyist) was “hopeful it won’t come to”

litigation after the Tavenner meeting); A-116-17 (Indict.

¶ 208) (alleging that Dr. Melgen’s lobbyist asked to be told

when Ms. Tavenner responded to Senator Menendez because

27

“at some point I have to make a decision whether to

recommend to [Dr. Melgen] to go to court rather than wait

any longer. I did not want to take any action until I knew that

other avenues were shut down”); A-118-19 (Indict. ¶ 217)

(alleging that Dr. Melgen’s lobbyist asked for “further

briefing” on the Sebelius meeting). While this could be seen

as evidence of Dr. Melgen’s interest in the outcome of a

genuine policy discussion, it could also be viewed as his

interest in the outcome of casework performed on his behalf.

Because the record supports both views, the District Court’s

findings were not clearly erroneous.

Fourth, Senator Menendez ignores unfavorable aspects

of the evidence on which he relies. For example, he cites a

note that urged him to “[m]ake the larger policy case” at his

meeting with Ms. Tavenner, but that note also mentioned Dr.

Melgen and his lobbyist by name. See A-1316. Far from

showing that that Dr. Melgen was clearly not discussed at the

meeting, the note suggests that any discussion of policy

involved Dr. Melgen’s particular case. Similarly, Senator

Menendez points out that the Indictment alleges only that the

“DR port issue” was discussed at the Brownfield meeting and

that the “issue of a US company” doing business in the

Dominican Republic was only “allud[ed] to.” A-101 (Indict.

¶ 125). But the source of that quoted language also indicated

that Assistant Secretary Brownfield promised he would try to

“leverage a correct . . . decision on the port contract.” A-101

(Indict. ¶ 125). By not referencing a promise relating

specifically to “the port contract,” especially when the

Indictment alleges that Senator Menendez pressed Assistant

Secretary Brownfield specifically on his inaction with respect

to Dr. Melgen’s contract dispute, the Senator asks us to

ignore relevant and material evidence. We do not view the

record through such a narrow lens.

28

Record evidence and unrebutted allegations in the

Indictment cause us to conclude that the District Court did not

clearly err when it found that the challenged acts were

informal attempts to influence the Executive Branch toward a

political resolution of Dr. Melgen’s disputes and not primarily

concerned with broader issues of policy. Because there is

substantial support for the District Court’s findings, we lack

“the definite and firm conviction that a mistake has been

committed.” United States v. Bergrin, 650 F.3d 257, 264 (3d

Cir. 2011). Those findings support the Court’s conclusion that

the Senator’s acts were not legislative. Thus the Speech or

Debate privilege does not apply.

Senator Menendez also advances two alternative

grounds for claiming that some of the challenged acts are

protected by Speech or Debate immunity. First, he argues that

he used the meeting and follow-up call with Ms. Tavenner to

vet her as the President’s nominee to become the permanent

CMS Administrator. He points to some evidence suggesting

that his interactions with Ms. Tavenner were related to her

pending nomination, not her role as acting CMS

Administrator. See A-462 (entry in Senator Menendez’s

calendar reflecting that the meeting with Ms. Tavenner was

“re: her nomination before the Finance Committee”); A-323

(grand jury testimony of a Menendez staffer claiming that the

purpose of the Tavenner meeting was “consideration of her

nomination”); Menendez Reply Br. at 20 n.11 (arguing that

the follow-up call, as a continuation of the meeting, was also

part of the vetting process).

But the way that Senator Menendez chooses to

characterize his actions does not resolve the Speech-or-

Debate-Clause question. See Lee, 775 F.2d at 522. For there

is evidence in the record suggesting that the meeting and

follow-up call with Ms. Tavenner were not related to her

nomination. See, e.g., A-1312-13 (Tavenner FD-302)

29

(reporting that Ms. Tavenner twice requested a meeting with

Senator Menendez about her confirmation but received no

response, and she “did not expect her nomination to go

forward” when she met with Senator Menendez); SA-14

(email from one Senator Reid staffer to another stating, in the

same month as the meeting with Ms. Tavenner, that her

nomination was “dead”); SA-2-4 (interoffice memorandum

summarizing the Tavenner meeting so Senator Menendez

could prepare for the follow-up call but never mentioning Ms.

Tavenner’s nomination); A-116-17 (Indict. ¶¶ 204, 209)

(alleging that Senator Menendez threatened to take his

complaints to Secretary Sebelius, implicitly suggesting that

the complaints were unrelated to Ms. Tavenner’s

nomination). And, perhaps most telling, Ms. Tavenner told

the FBI that her “nomination was not mentioned at the

meeting.” A-1313 (Tavenner FD-302). The District Court

found that Senator Menendez’s interactions with Ms.

Tavenner were not related to her confirmation. On this record,

that finding could hardly be considered clearly wrong; thus

those interactions are not protected as part of Ms. Tavenner’s

confirmation process.

Second, Senator Menendez argues that his Chief

Counsel’s correspondence with a Customs employee was

legislative because it was an attempt to gather information.

“[F]act-finding, information gathering, and investigative

activities are essential prerequisites to the drafting of bills and

the enlightened debate over proposed legislation,” and thus

they constitute protected legislative acts. Lee, 775 F.2d at

521. Here, the text of the initial communications with

Customs appear to request some information from the agency.

See A-102-03 (Indict. ¶¶ 132-38). But those communications

also show that Senator Menendez was asking it to refrain

from donating any equipment to the Dominican Republic

arguably because this would affect Dr. Melgen’s contract. Id.

Later communications between Senator Menendez’s staff and

30

Customs confirmed that both parties understood that ICSSI,

Dr. Melgen’s company, was the entity that would suffer from

such a donation. See A-103 (Indict. ¶¶ 139-42). Because the

request for information is so bound up with the advocacy on

Dr. Melgen’s behalf, it cannot be excised, and the privilege

turns on the entire communication’s predominant purpose.

See Lee, 775 F.2d at 525; Helstoski, 442 U.S. at 488 n.7. The

unrebutted allegations in the Indictment support the District

Court’s finding that it was not the primary purpose of the

Customs communications to gather information in support of

future legislation or to engage in policy-based oversight. Thus

the District Court’s finding falls well short of clear error, and

the communications were not protected.

In sum, the materials before us provide a sufficient

basis for the District Court’s conclusion that the predominant

purpose of the challenged acts was to pursue a political

resolution to Dr. Melgen’s disputes and not to discuss broader

issues of policy, vet a presidential nominee, or engage in

informal information gathering for legislation. It was not to

engage in true legislative oversight or otherwise influence

broad matters of policy. No clearly wrong findings exist at

this stage, and we will affirm the Court’s conclusion that the

Speech or Debate Clause does not protect any of the

challenged acts.

B. The Ethics Act

The Ethics Act is a wide-ranging statute that, among

other things, requires Senators to submit certain financial

disclosure reports each year to the Secretary of the Senate for

review and public distribution by the Senate’s Select

Committee on Ethics. Count 22 of the Indictment charges

Senator Menendez with violating 18 U.S.C. §§ 1001(a)(1)

and (c)(1) by knowingly or willfully falsifying, concealing, or

covering up the reportable gifts he allegedly received from

31

Dr. Melgen as part of a bribery scheme. Senator Menendez

advances several arguments as to why Count 22 violates the

separation of powers among our Branches of Government.

We reject each.

First, Senator Menendez maintains that the Executive

Branch may not punish any conduct regulated by the Ethics

Act because the Senate has incorporated it into Senate Rule

34. Because the Act has been incorporated into the Senate

Rules, he reasons that its filing requirements stem from the

Constitution’s Rulemaking Clause, U.S. Const. art. I, § 5, cl.

2 (“Each House may determine the Rules of its Proceedings,

punish its Members for disorderly Behaviour, and, with the

Concurrence of two thirds, expel a Member.”), and their

violation is punishable only by the Senate as a transgression

of a Senate Rule. See Menendez Br. at 48 (“Senators are

compelled to complete these reports only because the Senate

has exercised its constitutional authority to require them.”). In

other words, the Ethics Act is unconstitutional as applied to

the Senate because “the Rulemaking Clause commits the

power to set and enforce ethical standards for Senators to the

Senate alone.” Menendez Reply Br. at 28.

This contention confuses the relationship between the

separation of powers, the Ethics Act, and Senate Rule 34. The

Act, which was passed by the full Congress and signed into

law by the President, is the source of a Senator’s obligation to

make financial disclosures. Rule 34 allows the Senate to

punish Ethics Act violations; it does not undermine the

Executive Branch’s authority to prosecute a Senator for those

violations. The separation-of-powers principle does not mean

that Rule 34 prevents the Executive Branch from enforcing

the Act, and the Rulemaking Clause does not bar Congress

from legislating ethics. To say otherwise would immunize

from prosecution by the Executive Branch any conduct that is

incorporated into the Senate Rules, however offensive to the

32

laws of the United States. Separation of powers requires no

such result. Moreover, to the extent the Ethics Act

incorporates elements of the Senate Rules—such as

permitting Senators to satisfy their Ethics Act obligations on

forms created by the Senate, see 5 U.S.C. app. 4 § 106(b)(7),

or creating a defense to the Act’s liability for Senators who

rely in good faith on advisory opinions issued by the Senate

Select Committee on Ethics, see United States v. Hansen, 772

F.2d 940, 947 (D.C. Cir. 1985) (Scalia, J.)—that is how

Congress and the President agreed the Act would operate. It is

not a sign that the source of Senator Menendez’s filing

obligations is Senate Rule 34 or that the Ethics Act

criminalizes violations of those Rules as such.

Second, Senator Menendez suggests that Count 22 is

non-justiciable (legalese for incapable of being decided by a

court) because it requires the Judicial Branch to resolve

ambiguities in the Senate Rules. The Judicial Branch is

generally capable of interpreting congressional rules. See

Yellin v. United States, 374 U.S. 109, 114 (1963) (“It has

been long settled, of course, that rules of Congress and its

committees are judicially cognizable.”); United States v.

Rostenkowski, 59 F.3d 1291, 1305 (D.C. Cir. 1995) (“[I]t is

perfectly clear that the Rulemaking Clause is not an absolute

bar to judicial interpretation of the House Rules.”). Although

some Senate Rules may be non-justiciable because they are so

vague that the Judicial Branch would essentially make rules

for the Senate (and thereby violate the Rulemaking Clause) if

it tried to interpret them, see Rostenkowski, 59 F.3d at 1306;

United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385

(D.C. Cir. 1981), Senator Menendez has not identified any

particular Senate Rule that would necessarily be interpreted in

the course of his prosecution, let alone a Senate Rule that is

so vague as to be non-justiciable.

33

Third, Senator Menendez argues that his Ethics Act

disclosures are protected legislative acts under the Speech or

Debate Clause. But the “[d]isclosure of income from sources

other than employment by the United States” is not a

legislative act because it is not “an integral part of the

deliberative and communicative processes by which Members

participate in committee and [Senate] proceedings.” United

States v. Myers, 692 F.2d 823, 849 (2d Cir. 1982). The cases

from the D.C. Circuit on which the Senator relies neither

compel us nor convince us to rule that Ethics Act filings are

legislative acts. Those cases considered only whether the

Clause gave safe harbor to a Member’s speech in an official

congressional disciplinary proceeding, not whether it

protected a Member’s Ethics Act filings. See In re Grand

Jury Subpoenas, 571 F.3d 1200, 1202 (D.C. Cir. 2009);

United States v. Rose, 28 F.3d 181, 188 (D.C. Cir. 1994); Ray

v. Proxmire, 581 F.2d 998, 1000 (D.C. Cir. 1978). Indeed, the

D.C. Circuit in another case upheld the conviction of a

Member of Congress under 18 U.S.C. § 1001 for concealing

material facts in an Ethics Act filing. See Hansen, 772 F.2d at

943 (Scalia, J.). Hence we rule that Ethics Act filings are not

legislative acts protected by the Speech or Debate Clause.

C. Venue for Count 22

Senator Menendez asserts that venue for Count 22 is

proper only in Washington, D.C., where he filed the Ethics

Act disclosure forms, and New Jersey is thus the wrong place.

Because the denial of a motion to dismiss for lack of venue is

not immediately appealable, see, e.g., In re Federal-Mogul

Global, Inc., 300 F.3d at 378, we allowed Senator Menendez

to raise that issue only as a petition for a writ of mandamus

ordering that Count 22 be tried in the District of Columbia.

He chose not to address the issue of mandamus in his opening

brief, stating only that our review of the venue issue is

“plenary.” Menendez Br. at 3. “When an issue is not pursued

34

in the argument section of the brief, the appellant has

abandoned and waived that issue on appeal.” Travitz v.

Northeast Dep’t ILGWU Health & Welfare Fund, 13 F.3d

704, 711 (3d Cir. 1994). That is so here.

Even if the issue were not waived, we would deny

Senator Menendez’s petition. Mandamus is a “drastic remedy

that a court should grant only in extraordinary circumstances

in response to an act amounting to a judicial usurpation of

power.” In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372,

378 (3d Cir. 2005). Count 22 alleges that Senator Menendez

violated 18 U.S.C. § 1001 when he concealed or covered up

material facts in New Jersey before he filed his financial

disclosures in Washington, D.C. A-135 (Indict. ¶ 271). “At

the motion to dismiss stage, the District Court had to accept

as true all allegations in the indictment, regardless of its

uncertainty as to how the Government would prove those

elements at trial.” Bergrin, 650 F.3d at 270 n.8. The District

Court thus did not abuse its discretion or commit a clear error

of law when it ruled that the allegation was sufficient to

support trial in the District of New Jersey.3 Additionally,

Senator Menendez has not shown that facing trial in New

3

We shall not consider record evidence at this stage of

the litigation to assess whether the District Court’s venue

ruling was an abuse of discretion or clear error. We recognize

that “venue must be proper for each count of the indictment,”

United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009), and

the Government ultimately bears the burden of making that

showing by a preponderance of the evidence, United States v.

Perez, 280 F.3d 318, 330 (3d Cir. 2002). But “a pretrial

motion to dismiss an indictment is not a permissible vehicle

for addressing the sufficiency of the government’s evidence.”

DeLaurentis, 230 F.3d at 660.

35

Jersey as opposed to the District of Columbia would likely

cause him irreparable injury or that a post-conviction appeal

would be an inadequate remedy for the lack of venue.

V. Conclusion

We are sensitive that a privilege “is of virtually no use

to the claimant of the privilege if it may only be sustained

after elaborate judicial inquiry into the circumstances under

which the act was performed.” Doe v. McMillan, 412 U.S.

306, 339 (1973) (Rehnquist, J., concurring in part and

dissenting in part). But we also “take seriously the sentiments

and concerns of the Supreme Court that Members [of

Congress] are not to be ‘super-citizens’ immune from

criminal liability or process.” In re Search of Elec.

Commc’ns, 802 F.3d 516, 531 (3d Cir. 2015) (quoting

Brewster, 408 U.S. at 516). Senator Menendez’s selective

reading of the materials in the record does not persuade us

that the District Court clearly erred in its findings of fact or

that it incorrectly applied any law. That reading may prevail

at trial, but at this stage we affirm in all respects.

36