By Del Quentin Wilber
Washington Post Staff Writer
Thursday, February 5, 2009
A federal appeals court has dealt a blow to the investigation of a former congressman in a ruling that could also limit probes of other lawmakers, according to three sources familiar with the matter.
The order, which has not been made public, came during the grand jury investigation of former representative Tom Feeney (R-Fla.) and his potential ties to former lobbyist Jack Abramoff, the sources said. The appellate judges who issued the ruling did not say when they would release an opinion explaining their decision, which reversed a lower court order favorable to prosecutors seeking documents and grand jury testimony, the sources said.
Even without knowing the details of the ruling, sources and legal experts said it is important because it is the second time in two years that the U.S. Court of Appeals for the D.C. Circuit has sided with Congress in its fight with the Justice Department over what protections lawmakers are granted under the Constitution's "speech or debate" clause. The clause is designed to shield lawmakers' official work from executive branch interference and has been increasingly cited by members of Congress under federal investigation.
Few details have emerged about the behind-the-scenes legal wrangling in the Feeney investigation. No court documents or judicial opinions have been made public, and oral arguments were conducted in a closed courtroom.
In this instance, the judges, Stephen F. Williams, Douglas H. Ginsburg and Brett M. Kavanaugh, issued the order hours after hearing oral arguments on Jan. 23, according to sources and a terse docket entry.
The sources said the order and lack of clarity surrounding it will temporarily halt aspects of the Feeney investigation and could compromise the government's case. Depending on the scope of the opinion, other investigations may also be affected, the sources said.
Justice Department spokeswoman Laura Sweeney declined to comment, as did Irvin Nathan, the general counsel for the House.
Feeney did not return phone messages left at his Florida law firm or home. His attorney, Robert D. Luskin, declined to comment.
The legal dispute in the Feeney investigation arose in the summer of 2007, when prosecutors issued grand jury subpoenas seeking documents and testimony from potential witnesses, the sources said. Feeney's attorneys moved to quash the subpoenas, according to the sources, who requested anonymity because they are not authorized to discuss the matter.
U.S. District Judge Thomas F. Hogan issued a ruling that generally sided with prosecutors in their efforts to obtain the potential evidence, according to the sources. Feeney's legal team appealed the ruling, and the House filed court papers siding with Feeney, according to the sources.
Legal experts said it was unusual for an appeals court to issue an order the same day as oral arguments. "It signals they feel strongly about the issue," said John O'Quinn, a former top Justice Department official, who has no knowledge of the Feeney investigation.
O'Quinn and other experts said the court may have wanted to halt "imminent" grand jury proceedings involving Feeney.
Citing the "speech or debate" clause, a panel on the same court ruled 2 to 1 in August 2007 that FBI agents violated the rights of former representative William J. Jefferson (D-La.) when they searched his congressional office without consent. The court said that members of Congress have the right to review documents sought by investigators.
Under the ruling, lawmakers can seek to withhold documents, which are later reviewed by a judge to determine whether prosecutors may see them. Ginsburg, one of the judges in the Feeney case, sided with Jefferson.
Jefferson, whose office was searched May 2006, is scheduled for trial in May on federal bribery and other charges.
Feeney is being investigated for taking a 2003 golf trip to Scotland that was financed by Abramoff.
Feeney originally reported that the trip was financed by a public policy organization. The House ethics committee rebuked Feeney, and he agreed to pay the U.S. Treasury the trip's $5,643 cost. He was voted out of office last year.
Staff writers Jerry Markon and Carrie Johnson and staff researcher Julie Tate contributed to this report.