Summary
Local U.S. Attorneys will be required to consult with, and in some circumstances obtain approval from, the Department of Justice (DOJ)’s Public Integrity Section before proceeding in any cases involving members of Congress and their staff, under guidance issued in a DOJ memorandum last week outlining new policies and procedures for criminal investigations involving members and staff of Congress.
The Upshot
- New procedural requirements apply to all criminal investigations involving members and staff of Congress by the DOJ.
- U.S. Attorneys' Offices are now required to consult with the DOJ’s Public Integrity Section for any cases when a member or staffer is the subject of an investigation, and are encouraged to do so in cases when they are a victim.
- The guidance purports to seek a balance between the constitutional protections and privileges afforded to members of Congress (and by extension, their staff) with the need to ensure that the public has confidence in the integrity of DOJ investigations.
The Bottom Line
These new procedural requirements aim to ensure better coordination and oversight by DOJ leadership into investigations of members and staff of Congress. Congressional members and staff who are the subject of DOJ investigations, as well as third parties that store electronic data belonging to members and their staffers, should reach out to Ballard Spahr’s White Collar Defense and Internal Investigations Group, which has extensive experience in this area.
In a memorandum last week, Deputy Attorney General Lisa Monaco disseminated to all Federal prosecutors new policies and procedures for investigations involving members of Congress or their staff, requiring additional consultation between U.S. Attorneys' Offices and the DOJ’s Public Integrity Section and other additional requirements. The Public Integrity Section has long been charged with overseeing the investigation and prosecution of all federal crimes affecting government integrity, including bribery of public officials, election crimes, and other related offenses.
The new policies apply to all investigations involving current members as well as applying in part to investigations involving former members, and they may similarly apply to cases involving congressional staff members. Building off of requirements in DOJ’s existing policies and procedures as set forth in the Justice Manual, a number of investigative steps now require consultation with, or even approval by, the Public Integrity Section, including the following:
Steps and decisions requiring approval of Public Integrity Section:
- Issuance of a third-party subpoena for records held by a member, a member’s office, or a Congressional staffer (when related to the staffer’s duties*);
- Applications for a court order for the disclosure of the electronic communications of a member, a member’s office, or a Congressional staffer (when related to the staffer’s duties*);
- Applications for surveillance of devices or accounts belonging to a member, a member’s office, or a Congressional staffer (when related to the staffer’s duties*);
- Directing contact by a source or cooperator with a member or staffer;
- Applications for certain warrants and electronic surveillance;
- Charging decisions when a member is a target or subject of the investigation based on conduct related to their office or campaign activities; and
- Resolution of criminal charges when a member is a target or subject.
Steps and decisions requiring consultation with Public Integrity Section:
- Opening a case in which a member is a target or subject;
- Issuance of a subpoena to a member, a member’s office, or a Congressional staffer;
- In the above instances denoted by an asterisk, but when made on a Congressional staffer and unrelated to the staffer’s duties;
- Interviewing a member or staffer who is not a victim;
- Charging decisions when a member is a target or subject of the investigation for conduct not related to their office or campaign activities; and
- Resolution of criminal charges against a staffer when a member is not a target or subject of the investigation.
The memorandum also encourages prosecutors to consult with the Public Integrity Section when members, their offices, or their staff are victims in an investigation, and reiterates an existing policy requiring the coordination, consultation, and approval of DOJ’s Office of Legislative Affairs before any communication with a member, committee, or staff when the investigation does not involve a threat toward a member or staffer.
The new policies come on the heels of recent headline-grabbing investigations involving members of Congress. In October, a grand jury in the Eastern District of New York returned a superseding indictment charging Congressman George Santos with 10 counts related to a campaign finance fraud scheme in addition to 13 previously charged counts. In September, Senator Robert Menendez was charged in an unsealed indictment in the Southern District of New York that charged him, his wife, and three others with a scheme to commit bribery and honest services fraud. The memorandum also follows an October 31 letter from House Judiciary Chair Jim Jordan to Attorney General Merrick Garland demanding an explanation for DOJ obtaining, in 2017, private communications of Congressional staffers via a third-party subpoena—an action that would now require at least consultation with, if not the approval of, the Public Integrity Section.
This new policy will have the effect of granting DOJ leadership greater oversight of federal investigations involving members of Congress, their offices, and their staffers that could potentially implicate political considerations on either side of the aisle.
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