U.S. v. Rose, 92-5241

• Citation: 28 F.3d 181
• Decision Date: 12 July 1994
• Docket Number: No. 92-5241,92-5241
• Parties: , 63 USLW 2072 UNITED STATES of America v. Charles G. ROSE III, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 181

28 F.3d 181

307 U.S.App.D.C. 314, 63 USLW 2072

UNITED STATES of America v. Charles G. ROSE III, Appellant.

No. 92-5241.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 12, 1993.

Decided July 12, 1994.

Appeal from the United States District Court for the District of Columbia (D.D.C. No. 89cv01469).

William C. Oldaker, Washington, DC, argued the cause and filed the briefs for appellant.

Charles Tiefer, Acting General Counsel, U.S. House of Representatives, Washington, DC, argued the cause and filed the brief for amici curiae Speaker and Bipartisan Leadership Group of the House of Representatives.

Douglas Letter, Appellate Litigation Counsel, U.S. Dept. of Justice, Washington, DC, argued the cause for appellee. With him on the brief was J. Ramsey Johnson, Acting U.S. Atty., Washington, DC, at the time the brief was filed.

Before BUCKLEY and RANDOLPH, Circuit Judges, and LEVIN H. CAMPBELL, ^* Circuit Judge, U.S. Court of Appeals for the First Circuit.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Charles G. Rose III, a member of the United States House of Representatives, appeals the denial of his motion to dismiss a civil action brought by the Department of Justice under the Ethics in Government Act. Congressman Rose contends that the complaint relies upon his testimony before the House Committee on Standards of Official Conduct in violation of the Speech or Debate Clause of the Constitution. He also argues that the separation of powers doctrine prohibits the Justice Department from bringing this action because the Committee has already investigated him.

Rejecting both arguments, we affirm. Congressman Rose's testimony is not protected by the Speech or Debate Clause because it is unrelated to legislative matters. And the separation of powers doctrine does not bar this action because a prior investigation of Congressman Rose by the Committee does not prevent the Department of Justice from enforcing the Ethics in Government Act.

I. BACKGROUND

A. The Ethics in Government Act

Congress enacted the Ethics in Government Act of 1978 ("Ethics Act" or "Act"), Pub.L. No. 95-521, 92 Stat. 1824 (1978), in the aftermath of Watergate. Among other things, the Act established financial reporting requirements for key personnel in each of the three branches of the federal government, allocating these requirements to the three different parts of the U.S.Code governing the legislative, executive, and judicial branches. See 2 U.S.C. Secs. 701-09 (1988) (legislative); 5 U.S.C. app. Secs. 201-12 (1988) (executive); and 28 U.S.C. app. Secs. 301-09 (1988) (judicial). (Although Congress has since consolidated the three sets of provisions under one title of the U.S.Code, we will refer to the provisions of the Act by their original designations to conform to the citations in the parties' briefs and the district court's opinion.)

Under the Ethics Act, Members of Congress must file a "full and complete" financial disclosure report by May 15th of each year. 2 U.S.C. Secs. 702(a), 701(a). This report must include, inter alia, the "source, type, and amount or value" of non-U.S. government income aggregating $100 or more, id. Sec. 702(a)(1)(A); gifts from a non-relative aggregating $100 or more, id. Sec. 702(a)(2)(B); and liabilities to creditors over $10,000, except certain secured loans, id. Sec. 702(a)(4).

Congress itself oversees its Members' compliance with these provisions. Representatives and Senators must file their reports, respectively, with the Clerk of the House and the Secretary of the Senate. Id. Sec. 703(a), (b). Committees designated by the House and Senate must review these reports and "determine whether [they] are filed in a timely manner, are complete, and are in proper form." Id. Sec. 705(a). If a committee determines that a report was not properly filed, it "shall so inform the reporting individual and direct him to take all necessary corrective action." Id. The committees also may issue advisory opinions, which immunize those who rely upon them:

[T]he designated committee[s] ... have power ... to render any advisory opinion interpreting this chapter, in writing, to persons covered by this chapter. Notwithstanding any other provisions of law, the individual to whom a public advisory opinion is rendered ... who ... acts in good faith in accordance with the provisions and findings of such advisory opinion shall not, as a result of such act, be subject to any sanction provided in this chapter.

Id. Sec. 705(b). The "designated committee" in the House is the House Committee on Standards of Official Conduct. Rules of the House of Representatives, 101st Cong., 2d Sess., Rule X, cl. 1(t).

The House of Representatives has taken an additional step to ensure that its Members comply with the Ethics Act: Pursuant to its constitutional authority to regulate the conduct of its Members, see U.S. Const. art. I, Sec. 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"), the House has adopted the full text of the Act as a House Rule. See House Rule XLIV, cl. 2.

While Congress has retained much of the task of ensuring compliance with the Ethics Act by its own Members, it has authorized

[t]he Attorney General [to] bring a civil action in any appropriate United States district court against any individual who knowingly and willfully falsifies or who knowingly and willfully fails to file or report any information that such individual is required to report pursuant to section 702 of this title.

2 U.S.C. Sec. 706. The section also authorizes the assessment of a civil penalty against such individual in an amount not to exceed $5,000. Id. It is under this provision that the Department of Justice ("DOJ") is suing Congressman Rose.

B. Procedural History

In October 1986, the House Committee on Standards of Official Conduct ("Committee") received a complaint that Congressman Rose had failed to report various financial transactions in violation of House rules and the Ethics Act. The alleged transactions included personal loans from banks and from the Congressman's campaign committee totalling some $138,000. The complaint also charged that Congressman Rose had failed to report foregone interest on loans from his campaign committee and the use of a campaign committee asset as collateral for a personal loan. The Committee conducted an extensive investigation in which Congressman Rose cooperated and gave testimony.

On March 23, 1988, the Committee issued a report on its investigation. In the Matter of Representative Charles G. Rose III, H.R.Rep. No. 526, 100th Cong., 2d Sess. (1988) ("the Rose Report" or "the Report"). The Report concluded that Congressman Rose had violated both House rules and the Ethics Act. Id. at 25. Specifically, it found that he had (a) "borrowed from his campaign on eight separate occasions from 1978 to 1985, in violation of House Rule XLIII, clause 6"; (b) "pledged a $75,000 certificate of deposit belonging to his campaign on a personal loan ..., in violation of House Rule XLIII, clause 6"; (c) "failed to list as liabilities to his campaign the borrowings referred to [in (a) above] on his Financial Disclosure Statements" for the years 1982 through 1986, in violation of the Ethics Act and House Rule XLIV, clause 2; and (d) "failed to list liabilities to certain financial institutions on his Financial Disclosure Statements, in violation of the [Act]." Id.

In accordance with the Report's recommendation, the Committee sent "a formal and public letter of reproval" to Congressman Rose "as a public rebuke for the violations." Id. at 26, 523-25. The Report did not say whether the Committee had found the violations to be knowing and willful.

Meanwhile, the DOJ began investigating whether Congressman Rose had "knowingly and willfully" filed inaccurate financial statements. See 2 U.S.C. Sec. 706. In a letter dated January 26, 1989, Acting Assistant Attorney General Brent Hatch advised the Committee that the DOJ was contemplating bringing a civil action against Congressman Rose and solicited the Committee's views on the matter. Appendix Exhibits at 22-25. The letter stated that "[b]ased on a review of the Complaint filed with the Committee on Standards, and [the Rose Report], we believe that Representative Rose has violated the disclosure requirements of the [Ethics Act]" and that "there is evidence that he knowingly and willfully failed to report" various loans and financial transactions. Id. at 22. Commenting on the DOJ's authority, Assistant Attorney General Hatch asserted that the Committee's investigation does not "preclude[ ] a civil penalty action [by the DOJ] for the failures to report the loans" and that "[t]he Attorney General's authority is not limited to instances in which the House either has not acted on such violations or has referred the matter [to the DOJ] for an enforcement action." Id. at 24-25.

The Chairman and Ranking Minority Member of the Committee responded in a letter dated February 9, 1989, urging the DOJ to drop its plans to proceed against Congressman Rose. Appendix Exhibits at 26-29. According to the letter, the Committee's investigation had led it to conclude that Congressman Rose had not knowingly and willfully violated the Ethics Act: "Instead, the Committee concluded that the congressman's disclosures were the result of the sincerely held, albeit incorrect, belief that his campaign organization owed him the funds disbursed." Id. at 27. The letter also suggested that a DOJ action against Congressman Rose would raise separation of powers concerns:

The United States Constitution, at Article I, clause 5, empowers the Congress to discipline its own Members. As a matter of policy, the Committee takes the position that it will be impaired in carrying out this constitutional mandate[ ] if it must factor in with...