United States v. Robert Menendez , 831 F.3d 155 ( 2016 )

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
4
[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
7
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
11
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