United States v. Joseph M. McDade

SCIRICA, Circuit Judge,

concurring and dissenting in part.

I would hold that true legislative oversight falls within the protection of the Speech or Debate Clause. I write separately only because I believe we have jurisdiction to decide whether overt acts in the indictment violate the Speech or Debate Clause and that one of the overt acts here may be privileged. In all other respects I fully join the majority opinion.

I.

The majority holds that jurisdiction to determine whether overt acts challenged on Speech or Debate grounds should be stricken “does not satisfy the requirement that the right at issue in a collateral order appeal be jurisprudentially ‘important,’ ” Maj. Op. at 301, because “striking these overt acts would not require the dismissal of any charge in the indictment.” 1 Id. at 301. I respectfully disagree.

The Supreme Court recently stated, “[w]hen a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit ... there is little room for the judiciary to gainsay its ‘importance.’ ” Digital Equip. Corp. v. Desktop Direct, Inc., - U.S. -, -, 114 S.Ct. 1992, 2001 , 128 L.Ed.2d 842 (1994). Our cases indicate an issue is jurisprudentially important under the collateral order doctrine if it is “serious and unsettled.” United States v. Santtini, 963 F.2d 585, 592 (3d Cir.1992); Praxis Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 56 (3d Cir.1991). Both tests appear to be satisfied here. Grounded in our concept of separation of powers, see Helstoski v. *303 Meanor, 442 U.S. 500, 506 , 99 S.Ct. 2445, 2448 , 61 L.Ed.2d 30 (1979) (“guarantees of that Clause are vitally important to our system of government_”), the Speech or Debate Clause was written into the Constitution “to protect the integrity of the legislative process by insuring the independence of individual legislators.” United States v. Brewster, 408 U.S. 501, 507 , 92 S.Ct. 2531, 2535 , 33 L.Ed.2d 507 (1972). Since the privilege is part of the “ ‘practical security 1 for ensuring the independence of the legislature,” United States v. Johnson, 383 U.S. 169, 179 , 86 S.Ct. 749, 754 , 15 L.Ed.2d 681 (1966), determining its boundaries requires us to examine the relationship between the three branches of government. It is, therefore, a serious matter and important enough to overcome judicial policies militating against interlocutory appeals. 2

The issue is also unsettled. Neither party has identified a case where a court has ruled on whether the Speech or Debate privilege applies to oversight. Although the Supreme Court has held that certain contacts between Members of Congress and executive agencies are not immunized by the Speech or Debate Clause, see Brewster, 408 U.S. at 512 , 92 S.Ct. at 2537 ; Gravel v. United States, 408 U.S. 606, 625 , 92 S.Ct. 2614, 2627 , 33 L.Ed.2d 583 (1972); Johnson, 383 U.S. at 172 , 86 S.Ct. at 751 , it has not held that all contacts with executive agencies are outside the privilege. As the majority has noted, the Court has drawn a distinction between legislative and political acts, in which the former are protected while the latter are not. Thus, in Brewster , after the Court defined legislative acts as those things “generally done in Congress in relation to the business before it,” 408 U.S. at 512, 92 S.Ct. at 2537, it stated that many contacts between Members and executive agencies are not protected because “they are political in nature rather than legislative....” Id. Therefore, the second part of the “jurisprudentially important” test is satisfied. Cf. Santtini, 963 F.2d at 592 (case of first impression is jurisprudentially important).

I agree that striking either overt act would not result in dismissing any charge in the indictment, and I recognize the government may decide not to introduce evidence of the challenged overt acts at trial, obviating the need to reach this issue. 3 But the Supreme Court has held a Member cannot be forced to defend against charges which implicate legitimate legislative activity. Gravel, 408 U.S. at 616 , 92 S.Ct. at 2622 ; Dombrowski v. Eastland, 387 U.S. 82, 85 , 87 S.Ct. 1425, 1427 , 18 L.Ed.2d 577 (1967) (per curiam). Therefore, if the indictment recites an overt act that colorably violates the Clause, it would seem a Member of Congress is entitled to a ruling pre-trial even though striking the overt act would not result in dismissing any charge in the indictment. See Helstoski, 442 U.S. at 508 , 99 S.Ct. at 2449 (“[I]f a Member ‘is to avoid exposure to [being questioned for acts done in either House] and thereby enjoy the full protection of the Clause, his ... challenge to the indictment must be reviewable before ... exposure [to trial] occurs.’ ”) (alterations in original) (quoting Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034, 2041 , 52 L.Ed.2d 651 (1977)). 4

II.

With respect to the substance of McDade’s challenge, it appears one of the overt acts *304 may refer to protected activity, and could be stricken from the indictment. The Speech or Debate Clause prevents a Member from being questioned outside of Congress with respect to any legislative activity. Legislative activity comprises any act that is “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 , 92 S.Ct. at 2627 . True legislative oversight fits within this definition.

Generally speaking, oversight is the way Congress evaluates legislation, and in the appropriate manner, monitors the operations of executive departments and agencies. Properly done, oversight is part of our system of checks and balances. The term covers a range of formal and informal activities, of which some may be privileged. See Maj. Op. at 299-300. The key to identifying privileged oversight lies in the political-legislative distinction. Cf. Brewster, 408 U.S. at 512 , 92 S.Ct. at 2537 ; Gravel, 408 U.S. at 618 , 92 S.Ct. at 2623 (“the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.”).

At the extremes the cases will be clear. Compare Gravel, 408 U.S. at 616, 92 S.Ct. at 2622 (“We have no doubt that Senator Gravel may not be made to answer ... for the events that occurred at the subcommittee meeting.”) with Johnson, 383 U.S. at 172 , 86 S.Ct. at 751 (“No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process.”). For example, constituent casework including attempts to win government contracts would not be privileged, see Brewster, 408 U.S. at 512 , 92 S.Ct. at 2537 , while contacts made as part of a congressional investigation might be, see, e.g., Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 , 95 S.Ct. 1813, 1821 , 44 L.Ed.2d 324 (1975) (“The power to investigate and to do so through compulsory process plainly falls within [the legitimate legislative sphere].”).

Only one of the challenged overt acts here colorably refers to Speech or Debate privileged material. Count III, overt Act 17 states “On or about June 7, 1988, defendant MCDADE, wrote to the Secretary of the Army requesting that the Army delay in making a final decision on a possible ‘second source’ for the SINCGARS program.” That letter states, in part:

[The Subcommittee] believed the actual source selection process should result in a selection which minimized technological and financial risk, while emphasizing lower life cycle costs, interoperability, and the benefits of eventual competition. In order to insure source selection in conformance with these criteria, the conferees on the Fiscal Year 1988 Defense Appropriations Act directed the GAO to monitor the entire second source selection process and report its findings to the Committees on Appropriations.

The committee has received interim reports from GAO, and the Army has completed its source selection. However, the GAO’s final report will not be completed until July 15th. In the meantime, I am advised the Army intends to award the second source contract by June 10th, well in advance of the final GAO report. While I have no knowledge of any findings by GAO which may cast doubt on the source selection, I believe a contract award in advance of GAO’s final review and assessment is ill-timed and ill-advised.

The government contends the letter is evidence of McDade’s attempt to steer the award of the SINCGARS contract to Grumman corporation, who allegedly was paying McDade bribes and gratuities. As the ranking minority member on the subcommittee charged with monitoring the SINCGARS program, McDade would likely be involved with reviewing the Army’s contract award.

*305 McDade has made a colorable claim that the letter referred to in overt act 17 is legitimate oversight. If, as the government argues, McDade was involved in a conspiracy to influence the Army’s choice of suppliers, the government would still have the opportunity to prove its case, but would have to do so without the benefit of privileged material. Cf. Johnson, 383 U.S. at 185 , 86 S.Ct. at 757 (“With all references to this aspect of the conspiracy eliminated, we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause.”).

By contrast, the government alleges in count I, overt act 16 that “McDade caused a letter to be directed to the Secretary of the Navy warning that the Navy’s decision to issue a ‘stop work’ order on [United Chem Con’s] Sea Shed production would be viewed by McDade with ‘extreme gravity.’ ” McDade states in that letter:

On the topic of Sea Sheds, my staff is informed by the Director of Strategic Seal-ift that Sea Sheds produced at the Renovo, Pennsylvania plant in my District were apparently not in dimensional conformance with applicable specifications. The Director advised that in a parallel situation he was obliged to issue a stop work order.

I view the issue of a stop order against the Renovo plant with extreme gravity since Sea Sheds production is the town’s single industry_ I have asked Ms. Deck [of my Defense committee staff] to ascertain why this highly qualified producer should suddenly be delivering inaecepta-ble [sic] items and report to me on the probable cause.

This letter does not constitute legislative activity, but rather represents unprivileged constituent service. See Brewster, 408 U.S. at 512 , 92 S.Ct. at 2537 (unprotected activities include errands performed for constituents).

III.

I recognize that in some cases it may be difficult to distinguish true oversight from lobbying, and that some future legislator might attempt to shield illegal activity with the subterfuge of oversight. But “the risk of such abuse was ‘the conscious choice of the Framers’ buttressed and justified by history.” Eastland, 421 U.S. at 510 , 95 S.Ct. at 1825 (quoting Brewster, 408 U.S. at 516 , 92 S.Ct. at 2539 ). I would, therefore, require the district court to determine prior to trial whether the overt acts violate the Clause.

Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and McKEE, Circuit Judges and BASSLER, District Judge. *

. As the majority notes, McDade's briefs refer to only two overt acts in the indictment involving contact with the executive branch. Maj. Op. at 300.

.The Speech or Debate Clause protects our constitutional separation of powers. See Brewster’, 408 U.S. at 507, 92 S.Ct. at 2535; see also Robert J. Reinstein and Harvey A. Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113, 1139 (1973) (Framers "recognized the unique and vital role of this privilege in the system of separate powers."). Policies militating against interlocutory appeal include restraining appellate intervention in tentative decisions and "combin[ing] in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225 , 93 L.Ed. 1528 (1949).

. Indeed, the government appears to concede this possibility. See Government Brief at 23 ("[E]ven if some of McDade’s interactions with the executive and military had a partial oversight component such evidence will not be presented by the government:").

. Rather than prejudice, see Maj. Op. at 301 n. 27, the issue is constitutional privilege. Thus, where a colorable claim is made that an overt act in an indictment refers to privileged activity, inclusion of other, unprotected acts should not cure the infringement.