Appeals court expands lawmakers legal protection

WASHINGTON — What a lawmaker divulged to a Capitol Hill ethics probe about a golf trip with convicted lobbyist Jack Abramoff cannot be used against him in a criminal investigation, an appeals court has ruled in a case that could make it harder to prosecute misconduct in Congress.

The U.S. Circuit Court of Appeals in Washington says the protection is required by separation of powers provisions of the Constitution. Legal observers say it will expand the longstanding immunity for the official acts of members of Congress.

The ruling comes in the case of former Florida Republican Rep. Tom Feeney and a golf trip he took to Scotland. The trip was paid for by Abramoff, who has since been sent to prison for influence-peddling.

The House Ethics Committee said in 2007 that the trip violated House rules and Feeney agreed to pay the U.S. Treasury $5,643, the purported cost of the trip.

The appeals court revealed — in an opinion filed June 23 but just unsealed Thursday — that the Justice Department subsequently began an investigation into statements Feeney made to the committee. The opinion, which did not name Feeney but described elements of his case, said the congressman refused to talk to investigators so they served his attorneys with grand jury subpoenas for information submitted in the congressman’s defense during the ethics probe.

But the court concluded statements that Feeney’s lawyers made to the committee are excluded from criminal investigations by the Constitution’s “Speech or Debate Clause,” which says speech or debate in Congress “shall not be questioned in any other place.”

A lower court had rejected Feeney’s argument that the statements to the ethics committee should be kept from Justice investigators. It sided with government attorneys who argued that the statements were not legislative acts but involved Feeney’s personal conduct.

Feeney said in a statement issued by his attorney that he’s grateful the appeals court overturned the lower court’s decision.

“I have said all along that I engaged in no wrongdoing in connection with my trip to Scotland while a member of Congress,” he said. “I hope that the court’s decision will now bring this matter to a close.”

The Justice Department declined to comment on its defeat in the case.

Lance Cole, a law professor at Penn State’s Dickinson School of Law and a former special counsel in the Senate, said the decision is more evidence the appeals court in Washington will broadly interpret the Constitutional protections granted members of Congress.

In 2007, the appeals court ruled the FBI violated the Constitution when agents raided U.S. Rep. William Jefferson’s Capitol Hill office and viewed legislative documents in a corruption investigation.

“That approach will favor the interests of members of Congress over law enforcement and private litigants who sue members of Congress,” Cole said.

Feeney’s case was decided by a panel of three Republican-nominated judges. Judges Douglas Ginsburg and Stephen Williams were nominated by former President Ronald Reagan, while Judge Brett Kavanaugh was nominated by former President George W. Bush. Kavanaugh was an assistant to Independent Counsel Kenneth Starr during his investigation of then-President Bill Clinton.

Other congressmen and their aides who attended the golf trips to Scotland that Abramoff organized to curry favor with officials have faced criminal prosecution. Former Rep. Bob Ney, R-Ohio, served prison time after admitting trading political favors for a trip and other gifts from Abramoff and his associates. Others who went on the trips who have been convicted include Ney’s former chief of staff William Heaton; Mark Zachares, a former aide to Rep. Don Young, R-Alaska; and David Safavian, the government’s former chief procurement officer.

Feeney asked the ethics committee to review the financing of his August 2003 trip to Scotland after news reports said Abramoff paid for the trip, even though House rules prohibit lobbyists from paying for lawmakers’ official travel. The rules also prohibit lawmakers from accepting a primarily recreational trip from anyone, but Feeney maintained it was primarily for legislative fact-finding.

Feeney had reported on his annual financial disclosure form that the trip was paid by The National Center for Public Policy Research, where Abramoff was on the board of directors. After the ethics investigation, Feeney’s staff said in the end he wasn’t certain who financed the trip.

Democrats targeted Feeney for defeat in the 2008 election because of his ties to Abramoff. Feeney appeared in a campaign ad apologizing for the trip and calling Abramoff a “corrupt lobbyist.” He was defeated by Democrat Suzanne Kosmas and registered as a lobbyist in Tallahassee, Fla., earlier this year.

Associated Press writer Pete Yost contributed to this report.