[00:00:02] Speaker 03:
Case number 8-355-L, United States of America Appellate v. David G. Bowser.

[00:00:09] Speaker 03:
Ms.

[00:00:09] Speaker 03:
Gordon for the appellate, Mr. Pierce for the appellate.

[00:00:13] Speaker 03:
Ms.

[00:00:13] Speaker 03:
Gordon, good morning.

[00:00:14] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:16] Speaker 03:
This prosecution was fundamentally flawed from its inception.

[00:00:19] Speaker 03:
The government's legal theories ignored the plain meaning of statutes and the established precedents of this Court.

[00:00:25] Speaker 03:
The District Court erred by permitting those theories to be put to the jury and by not reversing them after the fact.

[00:00:32] Speaker 03:
This case is the first ever brought by the Department of Justice Public Integrity Section for proceedings before the Office of Congressional Ethics in the House of Representatives.

[00:00:42] Speaker 03:
And the Public Integrity Section let its zeal overcome its judgment in this case.

[00:00:47] Speaker 03:
And as is usually the case when that happens, this results in a lot of errors.

[00:00:53] Speaker 03:
The counts in this case that present the most clear example of what those errors are for the defense are counts four and seven.

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These are the false statements case.

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counts in which the government alleged that Mr. Bowser made false statements in representations to the OCE investigators.

[00:01:11] Speaker 03:
The district court found that these counts were justiciable, but they are not under this court's precedent in Rostinkowski.

[00:01:20] Speaker 01:
In addition, those counts are... Let me ask you about that.

[00:01:22] Speaker 01:
As I understand it,

[00:01:24] Speaker 01:
What the jury was deciding was that Mr. Bowser's statements were false.

[00:01:32] Speaker 01:
What do the House rules have to do with whether his statements are false or not?

[00:01:37] Speaker 01:
This doesn't require us to interpret some ambiguous House rule.

[00:01:42] Speaker 01:
The claim is that he lied when he was asked why he hired Mr. O'Donnell.

[00:01:49] Speaker 01:
I don't, help me understand the connection.

[00:01:51] Speaker 01:
I'd be happy to.

[00:01:52] Speaker 01:
Thank you.

[00:01:52] Speaker 03:
So every false statements case requires the statement to be interpreted in the context of that case.

[00:01:58] Speaker 03:
So for example, in a false claims case for a defense contractor, statement is either true or false depending upon the context of the question.

[00:02:05] Speaker 01:
And the question here is, did you hire him to work on the campaign?

[00:02:10] Speaker 03:
What were the reasons why you hired him initially?

[00:02:13] Speaker 01:
And he said not for the campaign.

[00:02:14] Speaker 03:
Mr. Bowser's answers were that they hired him for official work.

[00:02:18] Speaker 03:
So in order for him to answer that question... It was more than that.

[00:02:22] Speaker 01:
He said we didn't hire him for the campaign.

[00:02:23] Speaker 03:
That's correct.

[00:02:24] Speaker 01:
Was that statement true or false?

[00:02:26] Speaker 03:
That statement was true.

[00:02:27] Speaker 01:
That he didn't hire him for the campaign?

[00:02:29] Speaker 03:
Correct.

[00:02:30] Speaker 03:
They did not hire him for the campaign.

[00:02:31] Speaker 01:
The jury found otherwise, right?

[00:02:32] Speaker 03:
The jury split on that, I think.

[00:02:34] Speaker 03:
They found that two of the statements were false and two of the statements were true.

[00:02:38] Speaker 03:
Our position is that the evidence is insufficient, switching to that, but then coming back to Rostinkowski.

[00:02:44] Speaker 01:
That's a different question than the justiciability question.

[00:02:48] Speaker 01:
And I don't understand your justiciability argument.

[00:02:50] Speaker 01:
I guess I'm saying this.

[00:02:52] Speaker 01:
I don't understand your justiciability argument.

[00:02:54] Speaker 01:
I would understand it if it required the jury to interpret an ambiguous rule.

[00:02:58] Speaker 01:
You're right on that.

[00:03:00] Speaker 01:
I don't understand the ambiguity here.

[00:03:03] Speaker 03:
I don't think the district court understood the application of Rostenkowski either, which is why he came to the same conclusion.

[00:03:09] Speaker 03:
So the principle of Rostenkowski is not that the Department of Justice cannot prosecute members of Congress for violations of 641.

[00:03:18] Speaker 03:
It's not a theft defense.

[00:03:20] Speaker 03:
The principle of Rostenkowski is that the government cannot prosecute criminally members of Congress or their staff when there's a requirement that the rules of the House be interpreted for

[00:03:31] Speaker 03:
to fulfill the government's theory of prosecution, criminal prosecution.

[00:03:36] Speaker 03:
Here, the government's theory was that Mr. Bowser's statements were false.

[00:03:39] Speaker 03:
But in order to understand Mr. Bowser's answers, you have to interpret the rules of the House, because that's what Mr. Bowser was doing.

[00:03:47] Speaker 03:
He was being asked by OCE.

[00:03:49] Speaker 01:
Well, doesn't Russell Cassie tell us, you tell me,

[00:03:53] Speaker 01:
that it's not that simple.

[00:03:55] Speaker 01:
It's only when the House rule is ambiguous and we step outside our lane when we interpret.

[00:04:05] Speaker 01:
Not when it's clear.

[00:04:07] Speaker 03:
That's the government's position is that the rule is clear and it's my position that it absolutely is not.

[00:04:13] Speaker 03:
Because the primary purpose test is what was influencing Mr. Bowser's answers.

[00:04:19] Speaker 03:
So the stipulation that the defense and the government entered into

[00:04:23] Speaker 03:
said that everyone agreed the MRA funds could not be used for campaign purposes.

[00:04:28] Speaker 03:
However, the House rules also say that the member of Congress and his staff have to decide what the primary purpose of the expenditure of funds is.

[00:04:37] Speaker 01:
And preparing for a debate?

[00:04:40] Speaker 01:
Is there any question about that?

[00:04:43] Speaker 03:
If that was the only purpose.

[00:04:45] Speaker 01:
It wasn't the evidence that within two hours of him being introduced to the staff, he was told, go help the congressman get ready for a debate.

[00:04:52] Speaker 03:
He was asked to help the congressman prepare for a debate.

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It's our position that Mr. O'Donnell volunteered all of those services.

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He was hired for, everyone knew going into it, what he was being paid for.

[00:05:02] Speaker 03:
out of the MRA at his official rate, not his campaign rate.

[00:05:06] Speaker 01:
Let me give you a hypothetical.

[00:05:07] Speaker 01:
Let's imagine he had been told as part of your responsibilities you have to go help him prepare for the debate.

[00:05:12] Speaker 01:
There's no question that preparing for the debate is a campaign function, right?

[00:05:17] Speaker 03:
Correct.

[00:05:18] Speaker 01:
But you're saying that's not what happened.

[00:05:19] Speaker 03:
That's not what happened.

[00:05:20] Speaker 03:
If he had been being paid only for campaign work, then I would have agreed that that was a violation that would have not fit within Rosinkowski and we wouldn't have gone to trial, very likely.

[00:05:31] Speaker 03:
We would have played.

[00:05:33] Speaker 02:
But that's not what happened because what happened here is that... You seem to be taking the position that if he's doing any official work at all, there can't really be a prosecution.

[00:05:48] Speaker 02:
even if the employee testifies that it was their understanding that they had no choice but to do campaign work in addition to official work.

[00:06:03] Speaker 02:
Is that your position?

[00:06:04] Speaker 03:
Yes and no.

[00:06:05] Speaker 03:
The principal of Rostinkowski holds there, but here the employee didn't testify that he was... I'm asking for your legal position.

[00:06:17] Speaker 03:
If the employee is directed to do campaign work and they're being paid out of the MRA to do that work, that would indeed be a violation.

[00:06:26] Speaker 03:
If the employee is volunteering the campaign services in addition to being paid to do the official work, then that's not a violation.

[00:06:34] Speaker 02:
Isn't that the question of fact that the jury had to decide here?

[00:06:41] Speaker 03:
Yes and no.

[00:06:42] Speaker 03:
So for purposes of sufficiency,

[00:06:44] Speaker 03:
There's not enough evidence to conclude that that's what happened.

[00:06:49] Speaker 03:
The only evidence that the government really had is the email that's been alluded to here, that Mr. O'Donnell was asked, not told, but asked after he had volunteered to do campaign work in addition to the official work that he was being paid for, that he did some campaign help on two debates.

[00:07:07] Speaker 03:
The way the facts shook out, it was clear, and the jury found this, that the congressman did not need debate help after the other former congressman, Mr. Collins, had dropped out of the race.

[00:07:18] Speaker 03:
So prior to that, they were looking for help on both sides.

[00:07:21] Speaker 03:
After Mr. Collins dropped out of the race, there's no question that they were not looking for debate help.

[00:07:28] Speaker 03:
Mr. Allen, the other person who had interviewed for the job, testified that the tenor of the meetings changed after Mr. Collins dropped out of the race.

[00:07:35] Speaker 03:
The timeline also shows that.

[00:07:37] Speaker 03:
There were the two debates with the primary opponent that the congressman was going to trounce in the primary election.

[00:07:42] Speaker 03:
He did trounce that opponent, according to the election results.

[00:07:45] Speaker 03:
There was no opponent in the general election in November.

[00:07:48] Speaker 03:
So there was no question but that the congressman didn't need debate help, which the jury found.

[00:07:53] Speaker 03:
They acquitted Mr. Bowser on that count.

[00:07:55] Speaker 03:
There was also no Senate race in the offing because Senator Chambliss had not announced that he was retiring yet.

[00:08:00] Speaker 03:
So the whole thing lines up that

[00:08:03] Speaker 03:
This work was, the work that was paid for out of the MRA was official work.

[00:08:08] Speaker 03:
Mr. O'Donnell.

[00:08:08] Speaker 01:
This is the question, what was the intention in hiring him, right?

[00:08:13] Speaker 01:
What was the intention?

[00:08:14] Speaker 03:
And you have to look at Mr. Bowser's statement of what was the intention at the time based on the information that he knew, which is not what the district court did.

[00:08:22] Speaker 03:
You read his opinion.

[00:08:23] Speaker 03:
He is looking at both what happened going into the hiring and after.

[00:08:28] Speaker 01:
Well, after can help you understand what the intention was.

[00:08:32] Speaker 01:
If you hire someone and two hours later you tell them, we'd like you to help or we'd like you to help with the debate, that casts some light on the intention, but maybe not.

[00:08:43] Speaker 03:
Not enough is my argument.

[00:08:45] Speaker 03:
It is a single fact that leans in that direction.

[00:08:47] Speaker 01:
Well, that's not the only.

[00:08:48] Speaker 03:
All the other evidence leans the other way.

[00:08:50] Speaker 01:
Well, I'm sure we'll hear from the government.

[00:08:51] Speaker 01:
That's not the only fact here, right?

[00:08:53] Speaker 03:
It's the only contemporaneous fact.

[00:08:55] Speaker 03:
All of the things that happened after 2013 certainly can't relate back.

[00:08:58] Speaker 03:
It's unreasonable to say that Mr. Bowser in May and June of 2012.

[00:09:01] Speaker 01:
I thought there was someone else interviewed for this position beforehand who testified.

[00:09:05] Speaker 01:
Mr. Allen.

[00:09:06] Speaker 01:
Yes.

[00:09:06] Speaker 01:
That the intention in hiring him was to help with the campaign.

[00:09:10] Speaker 03:
He thought so initially.

[00:09:11] Speaker 03:
And then when I cross-examined him and pointed out that yes, but all the materials you were given for the meeting were official, he conceded that point.

[00:09:17] Speaker 03:
He also said that in going into the second meeting, the tenor had changed.

[00:09:21] Speaker 03:
and that he understood going into the second meeting that it was only for official work.

[00:09:25] Speaker 03:
Mr. O'Donnell also testified that leaving the second meeting where he knew he was being hired, that he understood that the work was only for official.

[00:09:33] Speaker 03:
It's a post-hoc rationalization by both Mr. O'Donnell and the government to say, well, it was actually for campaign work.

[00:09:39] Speaker 03:
That doesn't comport with the facts.

[00:09:40] Speaker 04:
He was paid in... Before you sit down, Ms.

[00:09:42] Speaker 04:
Gordon, let me ask you about count two.

[00:09:44] Speaker 03:
Yes, ma'am.

[00:09:44] Speaker 04:
That was the one that the jury mistried and there was a dismissal

[00:09:50] Speaker 04:
with prejudice and you're claiming that he should have given a judgment of acquittal.

[00:09:56] Speaker 04:
Why is that not moot?

[00:09:59] Speaker 03:
It's not moot because, you mean the argument here today?

[00:10:03] Speaker 03:
Obviously there's still a controversy.

[00:10:05] Speaker 04:
Why he's been, the charge has been dismissed with prejudice.

[00:10:11] Speaker 03:
Because he was entitled to an adjudication on the merits under Rule 48.

[00:10:17] Speaker 03:
Under Rule 48A, the defendant cannot agree,

[00:10:20] Speaker 04:
But that's tied to when it's done.

[00:10:25] Speaker 04:
If it's in the trial, he's got to give his consent and so forth.

[00:10:30] Speaker 04:
I'm having trouble seeing why this isn't moot.

[00:10:32] Speaker 04:
The charge has been dismissed with prejudice.

[00:10:34] Speaker 04:
He can't be charged again with it.

[00:10:38] Speaker 04:
You've said something about clearing his name.

[00:10:42] Speaker 03:
Yes, but actually there is a president of this court that was vacated on other grounds saying that the government's dismissal with prejudice is not a bar to double jeopardy, to a second prosecution.

[00:10:52] Speaker 03:
So I think that... What's that case?

[00:10:56] Speaker 02:
It is... That would be news to me.

[00:11:03] Speaker 03:
Well, we found it when we did the research.

[00:11:05] Speaker 03:
Let me find it.

[00:11:06] Speaker 03:
It is...

[00:11:11] Speaker 03:
It's in the footnote of our brief.

[00:11:14] Speaker 04:
Well, why don't you look, and we'll give you a couple minutes to reply.

[00:11:17] Speaker 03:
It's on page 46.

[00:11:20] Speaker 03:
It's USB Lindsay, 47 F-3rd, 440 DC Circuit, 1995.

[00:11:22] Speaker 03:
Now, as I said, it was vacated under the grounds.

[00:11:25] Speaker 03:
But there's no precedent in this circuit saying that there is a double jeopardy bar there.

[00:11:30] Speaker 03:
And this precedent would seem to indicate that there's still a problem there.

[00:11:34] Speaker 04:
OK.

[00:11:34] Speaker 04:
We'll give you a couple minutes and reply.

[00:11:49] Speaker 00:
May it please the court?

[00:11:49] Speaker 00:
Good morning.

[00:11:50] Speaker 00:
James Pierce, United States.

[00:11:52] Speaker 00:
When asked about Brett O'Donnell's political activities, defendant David Bowser lied to and withheld documents from the Office of Congressional Ethics.

[00:12:00] Speaker 00:
The jury found that that conduct convicted him for that conduct, and those convictions should be upheld.

[00:12:06] Speaker 00:
As to Count 1 charging obstruction, that jury verdict should be reinstated.

[00:12:11] Speaker 00:
I'd like to focus on Count 1, but let me first address the arguments that my friend on the other side raised.

[00:12:16] Speaker 00:
Uh, Judge Griffith, I think, hit the nail on the head.

[00:12:18] Speaker 00:
This is in a 1001 prosecution.

[00:12:20] Speaker 00:
The core question was, was the statements that, uh, the defendant made, were they false or not?

[00:12:27] Speaker 00:
Uh, and in fact, to be clear,

[00:12:30] Speaker 00:
The statements were not just at the time of hiring.

[00:12:32] Speaker 00:
In fact, the statement on count four was, at no point did we ever entertain the idea this would be a political adventure.

[00:12:39] Speaker 00:
That's not just at the time of hiring.

[00:12:41] Speaker 00:
That's from the time of hiring in 2012 all the way up until his termination in 2014.

[00:12:47] Speaker 01:
Can you explain why the jury

[00:12:50] Speaker 01:
quitted on two of the false statement charges and convicted on three.

[00:12:55] Speaker 01:
They all seem to be pretty much the same to me.

[00:12:58] Speaker 01:
What's going on?

[00:12:59] Speaker 00:
So, again, speculating about a jury verdict is always a bit of a black box, but I think there are four counts where there's a bit of a question.

[00:13:07] Speaker 00:
The count eight was just a certification on the form itself.

[00:13:10] Speaker 00:
That I think we can sort of put aside.

[00:13:12] Speaker 00:
I think one way to look at it is actually the point that I just made, which is counts four and seven basically were, at any point during O'Donnell's period, we never considered that we would need him for anything political.

[00:13:26] Speaker 00:
Whereas in counts five and six, there was a statement, we don't need debate preparation, that's count six, and we went into the relationship purely looking for nothing but official help.

[00:13:35] Speaker 00:
So the jury might have actually thought, well, you know, we're not so sure around the time of his hiring whether there was consideration of the political side.

[00:13:44] Speaker 00:
Now, I think the evidence that you pointed to earlier, the email within two hours of his hiring, certainly suggests otherwise, as does the fact that... What do you do with your friend's explanation that's asking him to volunteer?

[00:13:55] Speaker 00:
Well, that's certainly the argument that was made to the jury and one that is a factual question that the jury rejected.

[00:14:02] Speaker 00:
And, of course, that's now a sufficiency question.

[00:14:04] Speaker 00:
We're far afield from the Rostinkowski question.

[00:14:06] Speaker 00:
But a sufficiency question, the facts, inferences are all drawn in the light most favorable to the jury verdicts on 4 and 7.

[00:14:13] Speaker 00:
I think that's enough to get us past the post.

[00:14:16] Speaker 00:
Back to the Rostinkowski question.

[00:14:18] Speaker 00:
This is simply a, was that statement true or false?

[00:14:22] Speaker 00:
There's no need to interpret a house rule.

[00:14:25] Speaker 00:
And in any event, Rostinkowski asks this question about whether the rule is ambiguous or not.

[00:14:30] Speaker 00:
The defendants and the government's stipulation as to the content of the rule forecloses a question as to its ambiguity.

[00:14:37] Speaker 00:
Rostinkowski is, in essence, a pre-trial challenge to the indictment, a just disability challenge, saying we're not really sure whether the allegations in the indictment are sufficiently clear.

[00:14:48] Speaker 00:
Here, there was no challenge to the indictment.

[00:14:50] Speaker 00:
This happened after we had not only stipulations at trial, but a whole universe of evidence that came in that can show clearly what the rule was.

[00:15:00] Speaker 00:
The use of MRA funds are for official work, not political campaign work.

[00:15:05] Speaker 02:
Putting aside the justiciability issue, it seems a bit concerning here to base a prosecution

[00:15:18] Speaker 02:
on someone to the extent to which they volunteered campaign services when it's pretty much common knowledge that all campaign, that all official staff, maybe all is too strong but that probably the vast majority of official staff out there volunteer for their principal's campaigns in some capacity.

[00:15:48] Speaker 02:
Why shouldn't we be concerned about some line drawing in this case?

[00:15:55] Speaker 00:
Not only because the rule was clear and stipulated as such, but I think there was some trial testimony to suggest that, yes, there's a lot of volunteering happening from official staff.

[00:16:06] Speaker 00:
But the individuals, the witnesses that testified to that were people that were in the congressman's office, right?

[00:16:11] Speaker 00:
So this is the scheduler who says, yeah, in my off time.

[00:16:14] Speaker 02:
Tom Davis testified to that, the respected former congressman.

[00:16:18] Speaker 00:
Certainly, and testified that it happened.

[00:16:20] Speaker 00:
But we're talking about a different type of employee.

[00:16:23] Speaker 00:
So Brett O'Donnell is the kind of person who will work for various different campaigns and come in and essentially give political campaign type of help.

[00:16:32] Speaker 00:
Jason Miller, who was a communications person, came and said, he's not somebody who's in the official staff who basically has this sort of compelled requirement to volunteer.

[00:16:41] Speaker 00:
These are consultants that come in specifically for campaign work.

[00:16:44] Speaker 00:
Maybe it's a different question when we're talking about somebody who is an official in the staff, you know, on the staff, and then there's this other line drawing question about are they really doing volunteer work or not?

[00:16:54] Speaker 00:
That wasn't the case here.

[00:16:55] Speaker 00:
And O'Donnell said quite clearly he wasn't volunteering, and every other witness with the exception of Bowser said as such.

[00:17:00] Speaker 00:
And again, on a sufficiency review, that's all construed in the light most favorable to the jury's verdict.

[00:17:06] Speaker 01:
I'm concerned, I wonder what is the source of the duty to disclose to the OCE here?

[00:17:16] Speaker 00:
So the source in this particular case, I think it comes from the April and then again the June 2014 letters that the OCE.

[00:17:24] Speaker 01:
So the OCE can create a duty to disclose just by a letter or a form?

[00:17:30] Speaker 01:
Well, yes.

[00:17:32] Speaker 00:
Well, I don't think it's troubling in the case of a duly authorized investigation.

[00:17:36] Speaker 00:
So an OCE investigation doesn't just happen out of the blue, and this sort of cycles into the question on count one.

[00:17:42] Speaker 00:
It takes two OCE board members signing off on it.

[00:17:47] Speaker 00:
and then a preliminary review.

[00:17:49] Speaker 00:
And so it's not just this something that's out of the blue.

[00:17:51] Speaker 00:
In fact, in many ways, it's no different from any investigative agency getting underway and starting early off in its investigation, shooting out maybe a grand jury subpoena.

[00:17:59] Speaker 00:
And the OCE letter both to the Congressional Office... Well, you have to be careful here with your argument, don't you?

[00:18:06] Speaker 01:
If you make this too much

[00:18:08] Speaker 01:
of an investigation that trenches upon the House Ethics Committee argument, aren't you then, well I guess that is your argument, that you're acting as an agent.

[00:18:19] Speaker 01:
of the House here.

[00:18:20] Speaker 00:
I'm sorry.

[00:18:21] Speaker 00:
That's one piece of argument that is acting as an agent of the House.

[00:18:26] Speaker 00:
And I don't want to bounce onto the count one argument without fully answering the court as to count two.

[00:18:32] Speaker 00:
I think that the second part of the answer is that's also a factual question.

[00:18:36] Speaker 00:
I agree that in some cases the duty to disclose whether some government agent just sort of slaps something down and says, this creates it.

[00:18:43] Speaker 00:
But this went to the jury.

[00:18:44] Speaker 00:
And the jury could struggle in some cases and say, I don't think this is adequate to create such a duty.

[00:18:49] Speaker 00:
Here, they have the full factual record in front of it, the testimony from the OCE Investigative Council.

[00:18:55] Speaker 00:
That's an important designation, by the way, Investigative Council, as well as the forms and the evidence there.

[00:19:01] Speaker 00:
Now, if I could get to count one.

[00:19:04] Speaker 00:
The district court thought that that question was, is the OCE the house?

[00:19:08] Speaker 00:
And I think there's a passing argument there, but I acknowledge that that's not our strongest argument.

[00:19:13] Speaker 00:
The language in section 1505 is broad, that it prohibits obstructing the due and proper exercise of the power of inquiry under which any investigation or inquiry is being had

[00:19:25] Speaker 00:
by the House, any committee of the House, or a joint committee of powers.

[00:19:28] Speaker 01:
Yeah, don't garble that language.

[00:19:30] Speaker 01:
That's the key language, right?

[00:19:32] Speaker 01:
By who?

[00:19:33] Speaker 01:
And it's not an office of the House.

[00:19:35] Speaker 01:
It's very careful to say that.

[00:19:36] Speaker 01:
That's true.

[00:19:36] Speaker 01:
By the House or committee, this is not a House, this is not the committee.

[00:19:41] Speaker 00:
This is true, but what it is, is

[00:19:43] Speaker 00:
an investigation or inquiry that the House is having.

[00:19:46] Speaker 00:
It is by the House.

[00:19:47] Speaker 00:
It's not even done on behalf of the House.

[00:19:49] Speaker 00:
I think there again would be a harder argument for us, a colleague of mine in the future may be up here.

[00:19:53] Speaker 01:
What's the relationship between the work that's done by the OCE and the House Ethics Committee?

[00:19:58] Speaker 00:
So the OCE was created in 2008 just to recommend.

[00:20:02] Speaker 01:
It makes recommendations.

[00:20:04] Speaker 00:
It does make recommendations, but the question is, what did the House create the OCE to do?

[00:20:09] Speaker 01:
If they were doing it on behalf of the House Ethics Committee, why would the House Ethics Committee have to conduct its own investigation?

[00:20:14] Speaker 01:
It does, right?

[00:20:15] Speaker 01:
It must do that.

[00:20:17] Speaker 00:
It does create, it does do an investigation itself, but so does the OCE, right?

[00:20:23] Speaker 01:
The OCE was created... The question is whether the OCE is doing it on behalf

[00:20:27] Speaker 01:
of the House Ethics Committee.

[00:20:29] Speaker 01:
That's the argument you have to make, right?

[00:20:31] Speaker 00:
No, I actually don't think so.

[00:20:32] Speaker 00:
I think the argument that I am making is that when the House, under House resolution, created in the House the OCE, it did so as part of an investigation or inquiry into House ethics matters.

[00:20:44] Speaker 00:
And therefore, any time that there is a properly, duly initiated ethics inquiry by the OCE, which has a specific, you know, has to have the two OCE board members kick it off, that gets it to the preliminary review, then there's a potential second phase review, any time that that occurs,

[00:21:01] Speaker 00:
That is a due and proper exercise of the power of inquiry into this larger inquiry or investigation that is being had by the House.

[00:21:12] Speaker 00:
In other words, the OCE is, the House is having the OCE investigate on its behalf.

[00:21:18] Speaker 00:
And that comes purely from the House Resolution 895 and then the accompanying task force report.

[00:21:24] Speaker 00:
And I would comment on that task force report, which both sides cite in the brief, at pages 10 and 12,

[00:21:31] Speaker 00:
The task force report refers to the OCE as engaging in an inquiry.

[00:21:35] Speaker 00:
And on page 17, it says what the OCE is doing is an investigation.

[00:21:39] Speaker 00:
So there is this sense that yes, although ultimately the OCE doesn't have the power to enter sanctions or to find whether there's a violation or not.

[00:21:47] Speaker 00:
Can I just continue with this answer?

[00:21:49] Speaker 00:
Go ahead.

[00:21:50] Speaker 00:
And that ultimately it is referring it on to the House Ethics Committee, that it itself is engaged in investigation, which is what the language of 1505 says.

[00:22:00] Speaker 00:
And an interpretation of that would be consistent

[00:22:02] Speaker 00:
with the broad purpose of 1505.

[00:22:04] Speaker 04:
I've got two questions on 1505.

[00:22:08] Speaker 04:
Why wouldn't we apply the inclusion of one as the exclusion of all others?

[00:22:14] Speaker 04:
If it had just said had by the House, then you could argue well or any part thereof, office, committee, subcommittee, but it said the House or a committee or subcommittee, leaving off an office or something that wasn't one of those two.

[00:22:32] Speaker 04:
And my second question, well, go ahead and answer that first one.

[00:22:38] Speaker 00:
Certainly, Your Honor.

[00:22:39] Speaker 00:
So I think when Congress, that's language from 1962, that particular portion, I think when Congress drafted that language, it was trying to be as broad as possible to capture House and Committee and then, you know, not Subcommittee necessarily, although the Fifth Circuit and Raney found that Subcommittee and this Court and Barronblatt found the same.

[00:22:58] Speaker 00:
What that tells the court is that actually Congress is trying to be as broad and sweeping as possible.

[00:23:03] Speaker 00:
The Office of Congressional Ethics, of course, didn't exist at that point, but was trying to be as inclusive as possible.

[00:23:09] Speaker 00:
The question I thought you might be asking is, well, what about in 1996 when Congress redrafts 1001C2 and puts among its terms offices?

[00:23:21] Speaker 00:
I don't want to answer a question you didn't ask.

[00:23:24] Speaker 00:
That is my second question.

[00:23:26] Speaker 00:
So it's certainly the case that Congress could, with 1505, go back and draft a more comprehensive, broader statement.

[00:23:35] Speaker 00:
But I don't think that is required under the language that 1505 already has.

[00:23:40] Speaker 00:
The 1996 change was to address the Supreme Court's decision in Hubbard that a false statement against the legislative branch doesn't create criminal liability.

[00:23:49] Speaker 00:
1001C2, as we put in our brief, was the product of a careful negotiation between the House and the Senate.

[00:23:56] Speaker 00:
And so it was not the part of the prohibition within 1001A1.

[00:24:00] Speaker 00:
It was part of cutting back and specifying sort of the reach of 1001 in C2.

[00:24:07] Speaker 04:
Well, it seems to be, and this is the other part of my second question, that in creating this office, they thought, how do we give it teeth?

[00:24:16] Speaker 04:
We give it teeth by

[00:24:18] Speaker 04:
tying it to the false statement act and that violation.

[00:24:24] Speaker 04:
They decide, we don't know that, but they don't specifically say anything about 1505.

[00:24:33] Speaker 00:
That's true, but I think the function of 1001, to give it teeth, is to make sure that anyone who is the subject of an OCE investigation knows that this is something that has real bite, that it is an agency acting on behalf of Congress.

[00:24:49] Speaker 00:
It would be particularly odd.

[00:24:50] Speaker 00:
In fact, I'm not aware of any certification form that says failure to comply or to be fully disclosing is also a violation of, frankly, anything other than 1001.

[00:25:00] Speaker 00:
It's typically always that.

[00:25:01] Speaker 00:
And I don't think by doing that, it's

[00:25:03] Speaker 00:
and you are therefore only subject to liability under $1,000.

[00:25:06] Speaker 01:
What's the difference?

[00:25:08] Speaker 01:
If you said $1,001, why do you need $1,505?

[00:25:11] Speaker 00:
Well, I mean, I think there is overlap.

[00:25:13] Speaker 00:
I mean, certainly Count 3, the concealment of a material fact, had some overlapping allegations.

[00:25:20] Speaker 00:
Frankly, an obstruction statute carries more weight.

[00:25:24] Speaker 00:
I think that there is greater punishment that attaches to it.

[00:25:27] Speaker 00:
But, you know, Congress has indicated that it feels that obstructive conduct is worthy of that kind of punishment for... So why isn't this Rostenkowski?

[00:25:40] Speaker 01:
In Rostenkowski, we had to decide, you know, the question was whether personal services or official work.

[00:25:45] Speaker 01:
Why isn't there the same vagueness between official work and campaign work here?

[00:25:54] Speaker 00:
Just so I'm clear off the bat, the only place that comes up are Count 2 and Counts 4 and 7.

[00:25:59] Speaker 00:
Count 2, we think, because of the dismissal of prejudice, there's no Ross and Cousy question, and I think it doesn't need to be answered with 4 and 7.

[00:26:04] Speaker 01:
I want to understand it better.

[00:26:08] Speaker 00:
Just for my education.

[00:26:09] Speaker 00:
Sure.

[00:26:09] Speaker 00:
So, Rossinkowski, really, I think the relevant question focused on count eight there, which is, as your honor says, is this question about personal versus official.

[00:26:16] Speaker 00:
And looking just at the indictments, or only at the allegations as opposed to a universe of trial evidence, what the court said is,

[00:26:24] Speaker 00:
We're not really sure whether these particular allegations could or couldn't be official work.

[00:26:29] Speaker 00:
So the three examples that the Rostenkowski court gave was engraving plaques, that could be for the official office, that could be for personal, picking up the congressman's family, again, that could have to do with some sort of an official duty.

[00:26:41] Speaker 00:
Or then a set of employees where there were allegations that said they do little or no work in the official office.

[00:26:48] Speaker 00:
And so there was this question of, are they doing or are they not doing official work?

[00:26:51] Speaker 00:
We can't tell.

[00:26:52] Speaker 00:
The rule is too ambiguous.

[00:26:54] Speaker 00:
It's not justiciable.

[00:26:55] Speaker 00:
Here, it's not, was he doing official or was he doing political?

[00:27:00] Speaker 00:
Everybody concedes he was doing some amount of official work.

[00:27:03] Speaker 00:
The question was, was he also doing political work?

[00:27:06] Speaker 00:
And as long as he is doing political work, funded by the MRA, the Member's Representation Allowance,

[00:27:11] Speaker 00:
He has violated the House rule.

[00:27:13] Speaker 01:
But doesn't the government's case turn on whether when he was hired the intention was to have him do political work?

[00:27:24] Speaker 00:
No.

[00:27:24] Speaker 00:
Why not?

[00:27:26] Speaker 00:
Well, because that's not what was alleged in the indictment.

[00:27:30] Speaker 00:
And arguably the jury had some problem with that in its acquittals on counts five and six.

[00:27:34] Speaker 00:
It was in the time that he was working, was he doing

[00:27:37] Speaker 00:
political work funded by the MRA, whether he went into it or not.

[00:27:41] Speaker 01:
So I guess my question is just limited to false statements charges, is that right?

[00:27:45] Speaker 01:
For the Ross and Castle issue?

[00:27:47] Speaker 01:
No, the question right now about the intention at the time of hiring.

[00:27:51] Speaker 00:
I think that's right.

[00:27:54] Speaker 00:
And again, I mean, it's interpreted by the language of what is in those false statements.

[00:27:59] Speaker 00:
And when the defendant says, at no point did we ever consider, you know, O'Donnell to be doing anything other than official work, that's got to refer just on the plain language of what he has said to more than at the time of the hiring.

[00:28:15] Speaker 00:
All right.

[00:28:16] Speaker 04:
Thank you very much.

[00:28:17] Speaker 04:
Does Ms.

[00:28:18] Speaker 04:
Gordon have any time?

[00:28:21] Speaker 04:
Why don't you take two minutes, but before you start, you need to reread Lindsay, because Lindsay said that a dismissal with or without prejudices before trial.

[00:28:34] Speaker 04:
This was after trial, after there had been a determination on the facts, so that's not...

[00:28:38] Speaker 03:
Right, so my argument on Lindsay was that it leaves open the possibility, depending upon how we want to apply it in this context, that there's still the double jeopardy problem for Mr. Bowser.

[00:28:49] Speaker 03:
I think the principal reason why Count 2 is not moot is because although Rule 29 allows the District Court to reserve its ruling, it doesn't allow the District Court not to rule at all, which is what happened here.

[00:29:01] Speaker 02:
But the problem with your argument is that

[00:29:04] Speaker 02:
Your argument isn't one that entitles you to acquittal.

[00:29:07] Speaker 02:
Your legal argument is an argument based on Rosinkowski that would entitle you, if successful, to dismissal.

[00:29:15] Speaker 02:
And dismissal is what you got.

[00:29:17] Speaker 03:
No, it would have entitled me to an acquittal at trial.

[00:29:20] Speaker 02:
Because the court, the government... No, your legal argument about just disability wouldn't have entitled you to acquittal.

[00:29:26] Speaker 02:
It would have been an argument to the court to dismiss the count.

[00:29:32] Speaker 02:
Rostinkowski wasn't a case about whether there should have been an acquittal.

[00:29:37] Speaker 02:
It was about whether the indictment should have been dismissed.

[00:29:41] Speaker 03:
Only in the pretrial context.

[00:29:42] Speaker 03:
Once the trial begins and jeopardy attaches, the government cannot prove the allegations that it made in that count.

[00:29:49] Speaker 03:
because there's no legal way to do so.

[00:29:51] Speaker 02:
I guess we'll have to agree to disagree, but you can move to dismiss a count after jeopardy attaches.

[00:29:57] Speaker 02:
It doesn't magically become an argument for acquittal.

[00:30:00] Speaker 03:
But I didn't move to dismiss it.

[00:30:02] Speaker 03:
I moved for judgment of acquittal because the government can't make out the elements because that's not a cognizable criminal offense.

[00:30:08] Speaker 02:
It may have been what you called it, but that's not what it answers to.

[00:30:14] Speaker 03:
In terms of the government's issues about the questions that Mr. Bowser was asked, I would invite the court to look at the Joint Appendix, pages 138 to 143.

[00:30:26] Speaker 03:
You can see the statements that Mr. Bowser was making and the context in which they were made.

[00:30:31] Speaker 03:
My friend here points out that one of the statements says, at no point did we ever,

[00:30:36] Speaker 03:
Council added the language during the period.

[00:30:39] Speaker 03:
If you look at the context of what Mr. Bowser is being asked and what he's answering, he's not answering that question and he's not being asked that question by the OCE.

[00:30:48] Speaker 03:
They are asking him, why did you hire this guy in the first place?

[00:30:52] Speaker 03:
Mr. Bowser is not answering about what happened afterward.

[00:30:54] Speaker 03:
He's answering about looking forward in May and June of 2012, why did we hire him in the first place?

[00:31:01] Speaker 03:
So him saying at no point means at no point at that period of time,

[00:31:06] Speaker 03:
At the time that we did those actions, made the hiring decision, did we have the intention to use him for campaign work?

[00:31:13] Speaker 03:
That was true at the time that he said it.

[00:31:18] Speaker 03:
Council suggested that the jury had rejected that Mr. O'Donnell had volunteered, but that's not true.

[00:31:23] Speaker 03:
They hung on the count, which hung on the question of whether or not Mr. O'Donnell was volunteering or not.

[00:31:30] Speaker 03:
They were split on that question, which is count two.

[00:31:33] Speaker 03:
So, on the duty to disclose, the government's argument appears to be that if the investigators really want to know the information bad enough, that imposes a duty on you to disclose it, but that is not what the law is.

[00:31:48] Speaker 03:
a duty to tell the truth or a duty to be truthful on a certification into a duty to disclose.

[00:31:55] Speaker 02:
But Fabian also said, I think in footnote seven, that a form, government form, can give rise to a legal duty.

[00:32:03] Speaker 03:
It can, if the form actually requires the disclosure of information.

[00:32:06] Speaker 03:
Here, the certifications do no more than say what the law already is, that 1001 applies to the interview.

[00:32:13] Speaker 02:
So just so that I'm clear,

[00:32:16] Speaker 02:
You don't dispute that the form can create the legal duty.

[00:32:21] Speaker 02:
Your argument is that this particular form does not.

[00:32:24] Speaker 03:
Correct.

[00:32:25] Speaker 03:
In theory, a form could.

[00:32:26] Speaker 01:
Doesn't 1001 create a duty?

[00:32:28] Speaker 01:
After 1001, doesn't everyone have a duty that when you're part of a government investigation, you have to tell the truth?

[00:32:35] Speaker 03:
To tell the truth, but not to disclose information.

[00:32:37] Speaker 03:
Your choices are say nothing, tell the truth.

[00:32:40] Speaker 01:
Well, in this case, he was asked to disclose emails that he had sent to Mr. O'Donnell, and he didn't do that, right?

[00:32:47] Speaker 03:
He was asked because the OCE doesn't have the power to compel.

[00:32:51] Speaker 03:
He had no duty to provide the documents.

[00:32:54] Speaker 03:
none at all.

[00:32:55] Speaker 03:
He could have simply provided none.

[00:32:56] Speaker 03:
Now, he wouldn't have been happy with that, but that wouldn't have been a violation of 1001A2.

[00:33:00] Speaker 03:
There's a difference between a duty to tell the truth and a duty to provide the information, a duty which this court made very clear.

[00:33:07] Speaker 01:
Didn't he certify that he had

[00:33:11] Speaker 01:
He did, and that is what count 8 is for.

[00:33:16] Speaker 03:
Perhaps that's a violation of the duty to tell the truth under A-1, but it is not and cannot be a violation of the duty to disclose under A-2 because he has no such duty.

[00:33:25] Speaker 03:
He didn't have to give the documents.

[00:33:27] Speaker 03:
Simply saying that you did when in fact you didn't,

[00:33:30] Speaker 03:
is maybe a false statement, but it's not concealment because there's no duty to disclose.

[00:33:35] Speaker 03:
There is absolutely no basis for that here.

[00:33:37] Speaker 03:
1001 doesn't create the duty to disclose.

[00:33:40] Speaker 03:
It punishes your failure to disclose if you have a duty which is generated by some other form or statute or regulation.

[00:33:48] Speaker 03:
There was no such requirement here.

[00:33:52] Speaker 03:
All right.

[00:33:53] Speaker 03:
Time is up.

[00:33:53] Speaker 04:
Thank you.

[00:33:54] Speaker 03:
Call the next case.