The future of Sen. Robert Menendez might hinge on what his staffers have to say. At question is whether his aides can give testimony that would implicate the New Jersey Democrat, who is facing possible federal corruption charges for his dealings with Florida eye doctor Salomon Melgen.  

Members of Congress and their staffs are entitled to privileged communication surrounding legislative matters. The Speech or Debate Clause (Article I, Section 6 of the Constitution) protects senators and representatives from being questioned about legislative acts anywhere but on the floor of their chamber. But what constitutes a legislative conversation? Two Menendez staffers, Kerri Talbot, a former chief counsel, and Michael Barnard, a health care legislative assistant, are cited in a New Jersey Law Journal article as having had conversations with the executive branch surrounding Melgen. The story reported that when compelled to testify to the nature of the interactions, both invoked the Speech or Debate Clause.  

It’s a common response for lawmakers and staffers facing an investigation, said Kenneth A. Gross, a political law attorney at Skadden. Gross cited the case of ex-Rep. William Jefferson, D-La., and STOCK Act investigations as recent examples. “Anytime you are investigating Congress, such as this, it creates a real hurdle for prosecutors,” Gross said.  

A federal district court ordered the aides to testify, but the 3rd U.S. Circuit Court of Appeals sent the case back to the lower court. The burden is now on Menendez to prove there was a legislative purpose to the conversations and the speech is protected.  

That will not be easy to do, according to Michael Stern, a former senior counsel to the House and former Senate investigator who writes a blog about congressional legal issues, Point of Order .  

“The Supreme Court has said that efforts to influence an executive agency are not covered under Speech or Debate,” Stern said. “But the lower courts have said the ‘information gathering’ conversations can be protected, if you’re intending to use it for legislative purposes later on. It’s a fuzzy line; what is informal information gathering, and what will be used some day for legislation?”  

In this instance, Stern believes it’s unlikely the conversations were legislative in nature. “It was more likely they were bringing up a case to have the agency handle rather than gathering information for a legislative purpose,” he said.  

“The case law makes the distinction between ‘legislative acts’ that are directly related to the legislative business in [the] Senate and ‘political acts’, in the sense that it may be part of the official duties of a member, but they are outside of the specific legislative duties,” said Robert L. Walker, counsel at Wiley Rein, former chief counsel of the Senate Ethics Committee and a former trial attorney with the public integrity section of the Department of Justice. Such “political acts” include constituent service activities, said Walker, including communications with executive branch agencies on behalf of constituents.  

According to the New Jersey Law Journal report , Talbot asked a staff member from U.S. Customs and Border Protection if that agency would refrain from donating used screening equipment to the Dominican Republic, clearing the way for a contractor controlled by Melgen to make a sale. If their communication is protected under the Speech or Debate Clause, it cannot be used at trial to implicate Menendez, even if the executive branch is willing to testify to its nature.  

“It’s a little hard for me to believe that if the government official was saying, ‘Well, my interpretation was Menendez was telling me to fix the prob for the doctor,’ that anyone could keep that out [of trial] based on the Speech or Debate Clause,” Stern said. “But it’s not 100 percent clear.”  

It also could be a case of both protected speech and non-protected speech occurring in the same interactions, which can be very difficult to parse out, Walker said. “If it’s intertwined, if you can’t get it without treading on protected, the protections get to prevail. On the other hand, it may well be a discrete set of activities related to constituent-service like conduct; chances are that the courts are not going to find that that’s protected.”  

The two aides may have to wait until the lower court makes a ruling, but they might not need to wait long. Leaked court documents indicate that the grand jury is moving forward with an indictment, and their testimony might not be needed until trial.  

But it can be a long agonizing wait. Especially for two staffers who were likely doing what their boss wanted as part of their routine job responsibilities.  

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