In re Grand Jury Investigation, 608 F. App'x 99

Background

A federal grand jury investigated Senator Robert Menendez for allegedly performing official acts and receiving gifts from Dr. Salomon Melgen, focusing on (1) efforts to resolve a Medicare billing dispute with CMS and (2) actions concerning a private contract to supply screening equipment to the Dominican Republic.
Key communications at issue: two conversations between Senator Menendez and Marilyn Tavenner (Acting CMS Administrator), an August 2, 2012 meeting with HHS Secretary Kathleen Sebelius (and Sen. Reid), and email exchanges between Menendez staff (Kerri Talbot) and a CBP staffer about equipment donations to the Dominican Republic.
Two staffers, Michael Barnard (Legislative Assistant) and Kerri Talbot (former Chief Counsel), invoked the Speech or Debate Clause when summoned to testify; the District Court compelled testimony as to disputed questions; this appeal followed.
The Speech or Debate Clause shields Members of Congress from questioning about legislative acts and motivations; informal contacts with the Executive Branch are not automatically protected and require fact-specific inquiry to determine whether they are legislative.
The Court held that the District Court’s factual findings were insufficiently developed and remanded to require specific findings about the content and purpose of each disputed communication; it also identified several questions conceded permissible by Menendez.

Issues

Issue	Plaintiff's Argument (Gov't)	Defendant's Argument (Menendez)	Held
Whether Tavenner calls and Sebelius meeting are protected legislative acts under the Speech or Debate Clause	These communications were efforts to influence the Executive Branch and thus unprotected	The communications concerned policy/oversight and had legislative purpose, so protected	District Court’s finding insufficiently explained; remanded for specific factual findings on each communication
Whether staff testimony invoking the Clause must be compelled	Gov't: testimony about non-legislative aspects is compelled	Menendez: staff communications are covered by Member's privilege and need protection	Remanded for separate analysis of legislative vs non-legislative components; some questions already deemed permissible
Use of CBP email chain as evidence against Menendez	Gov't: email chain is admissible evidence of non-legislative conduct	Menendez: CBP email communications relate to legislative or constituent functions and are protected	Remanded for factual findings on whether those emails constitute protected legislative acts
Scope of permissible grand jury questions (specific questions Barnard refused)	Gov't: many questions probe non-protected facts and intent; should be answered	Menendez: many specific content questions are barred by Speech or Debate	Court identified specific categories/questions conceded permissible (logistical questions, whether Reider requested assistance, listed question numbers); no further fact-finding required for those questions; remand for the rest

Key Cases Cited

United States v. Brewster, 408 U.S. 501 (1972) (Speech or Debate Clause bars questioning Members about legislative acts and motivations)
Gov’t of the V.I. v. Lee, 775 F.2d 514 (3d Cir. 1985) (informal oversight/fact-finding may require factual findings to determine protection)
United States v. McDade, 28 F.3d 283 (3d Cir. 1994) (distinguishes protected legislative acts from political acts; need for fact-specific inquiry)
United States v. Helstoski, 442 U.S. 477 (1979) (legislative components separable from non-legislative; if inseparable, determine predominant purpose)
In re Grand Jury (Eilberg), 587 F.2d 589 (3d Cir. 1978) (permitting in-camera testimony or affidavits to resolve Speech or Debate disputes)
In re Grand Jury Subpoena, 745 F.3d 681 (3d Cir. 2014) (procedures for resolving privilege issues in grand jury context)
MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988) (scope of constitutional privileges reviewed de novo)