When I saw on Twitter that Senator Robert Menendez (D-NJ) had filed a Third Circuit appeal,[1] I started reading the brief in earnest. I assumed that the brief hailed from BigLaw, and likely from some of the biggest guns at that. After skimming it for about a minute, I also wondered if the signers would figure among the appellate gurus who populate my book Point Made. I checked, and they didn’t.
I read on with interest all the same, noting many things that slip into briefs from even the best firms.
Here are six takeaways.
1. Use quotations to buttress your argument, not to replace it.
Senator Menendez has been indicted on federal corruption charges, accused of using his office to benefit Dr. Salomon Melgen, a Florida eye doctor who allegedly offered the Senator a trip in a private jet, a stay at a luxury Paris hotel, and access to an exclusive Dominican resort. In exchange, the government alleges, Dr. Melgen sought help with a Medicare dispute and a port-security contract. The Senator’s brief is an appeal from the trial court’s denial of his motion to dismiss the indictment.
One of the brief’s key points is that a senator’s “oversight activities” should be construed broadly. But the brief develops that argument mostly through pages of quotations from a slew of disparate sources: a well-known article by Elena Kagan in the Harvard Law Review, a Senate report, a Third Circuit case, a treatise cited in that case, another academic piece, and a publication of the Congressional Research Service.[2]
These are all helpful authorities indeed, but legal analysis needs more than just copied-and-pasted language interlaced with declarations like “So-and-so is on board, too.” What the court wants to know is how each authority helps construe “oversight,” not just that, say, “McDade looked to the seminal Aberbach treatise in adopting a broader definition of protected oversight than the district court.”[3] Followed by a bulky and boring-looking quote.
In your major analytical sections, I recommend mapping out the logical argument first—what exactly does each authority add to the substantive mix and how?—and only then adding select quotations. Never try to block-quote your way to a persuasive argument.
2. The beginning of the argument section is prime real estate. Don’t squander it.
In some briefs, the argument section skips any overview and just jumps to the first subsection. If you choose that path, as these lawyers did, it’s especially important to start off strong—and with persuasion, not exposition.
In their brief, for example, the first few pages of the argument consist mostly of strung-together boilerplate quotations and parentheticals. It’s hard to understand exactly how any of this matters.
Finally—on page 11—the argument starts to hint at a theme:
Because there is no evidence of any corrupt agreement in this case, DOJ is trying to do exactly what the Speech or Debate Clause forbids: rely on proof of legislative acts to prove alleged bribery.[4]
But it’s a bit late. This point should have been the first sentence of the argument, not a random sentence several pages in.
3. Explain confidently the pragmatic consequences of ruling against you. If they have a legal basis, they shouldn’t be a mere afterthought.
The Senator’s brief includes a great bit of pragmatic argumentation—what I call in Point Made the Why Should I Care? factor. Claiming that a given reading is unsound is not fluffy policy talk. It goes to the very purpose of the language in question. But to learn why upholding the trial court’s ruling would be a bad idea here, you’ll have to wait until page . . . 53:
The district court’s view of the Senate’s rules and guidance is fundamentally wrong, violates separation of powers, and should alarm all Members of Congress. If it is right, the existing guidance in House and Senate Rules, advisory opinions and waivers is not worth the paper it is printed on. Under that view, if the House or Senate advises Members something[5] does not need to be reported, the Executive Branch can nevertheless second-guess the House or Senate and charge the Member with a felony if it decides EIGA required reporting.[6]
4. Stop fearing the word “that.”
As I’ve explained before, exorcising the word “that” is a risky scheme, as Al Gore used to like to say. And it’s a surprisingly common pastime in BigLaw, though not among the appellate superstars.
Sometimes cutting “that” is just plain wrong. In a sentence like the one below, for example, you need to repeat “that” before the second object–in this case, the phrase beginning with “the Dominican government,” which reflects the second of the two things the indictment alleges “that” Dr. Melgen did:
With respect to port security, the Indictment alleges that Melgen owned a company that held a contract under which it was to scan cargo containers, but the Dominican government was not honoring this contract.[7]
The brief even omits “that” from stock phrases like “the fact that,” resulting in such odd language as “allegations about the fact he filed the form”:
Thus, even if relevant, there are no “conflicting allegations” about the fact Senator Menendez signed and filed the form in Washington, D.C.[8]
Other times, cutting “that” after a verb creates a miscue or a “garden path”—a confusing string of words:
Even when the district court assumed Senator Menendez “had a policy reason” for advocacy that would benefit Melgen, it still concluded such efforts to “lobby the Executive Branch” were unprotected.[9]
The court didn’t say “Time’s up!” and “conclude such efforts.” It concluded THAT those efforts were unprotected. (Speaking of which, avoid writing “such” when you mean “those.”) Another example:
But this Court recognized (as it did in McDade) the issue is more nuanced than such a categorical statement would permit, and vacated and remanded.
Again, it’s not clear which words belong with which phrases. Did the court recognize an issue? And on a separate note, I’m not sure what to make of the phrase “and vacated and remanded.” It’s too far from “recognized” to work without another reference to the court. Plus “and” doesn’t effectively convey the sense of cause-and-effect that the lawyers are aiming for here.
The district court believed conversations with Tavenner could be segregated into protected and unprotected parts, and concluded the Medicare policy discussion was unprotected.[10]
The judge didn’t “believe conversations,” nor did he “conclude the discussion.”
This Court held a Member “should be permitted to indicate by affidavit or testimony” . . . .[11]
The judge didn’t hug or detain a member of Congress, either.
The Court explained the Member in Dowdy conducted an investigation, albeit one the prosecution called a “sham investigation” bought with bribery.[12]
And the judge didn’t “explain a Member.”
5. Use semicolons strategically.
One thing I do love about this brief is how it uses semicolons effectively to draw clean, stark contrasts. And note how these lawyers mercifully spare us the common-but-needless “however” or “rather” after the semicolon:
Efforts to influence the Executive Branch on policy are protected oversight; efforts to influence the Executive Branch to benefit an individual alone (pure case work) are not.[13]
Everyone at the meeting explained that Senator Menendez and Tavenner debated policy; nobody could recall Melgen’s name being mentioned.[14]
As a practical matter, Congress lacks the resources to depend solely on formal oversight; Congress depends on the threat of escalation to formal oversight to effectively control agency conduct through informal oversight.[15]
Oversight activities by Members are constitutionally protected; routine political favors are not.[16]
6. Last-minute line editing can go a long way.
If you read a brief in the Pattie Millett or Paul Clement mode, it’s hard, if not impossible, to think of any ways to improve the sentences. They are technically flawless.
The sentences below, by contrast, reflect problems with wording, parallelism, or syntax that risk distracting the reader from the important substantive points. Sentences first, commentary second:
Even viewed through the most uncharitable lens as Senator Menendez doing a purely political favor for Melgen, Senator Menendez would still be fully within his rights to consider whether he could influence Tavenner in deciding whether to confirm her.[17]
That’s a whopper of a dangling modifier. We aren’t looking at Senator Menendez through a magnifying glass here.
The court’s holding that submissions to the Ethics Committee are protected by the Speech or Debate Clause because they concern a matter under investigation by the Committee–without deciding whether the Member actually engaged in protected activity (legislative fact-finding) or simply accepted an illegal gift–leaves nothing left of Rose.[18]
This sentence has a common but risky structure. There are 42 words between the subject and the verb–between “holding” and “leaves.” The reader will no doubt get lost mid-journey. You’re better off writing something like “The court disregarded Rose when it held that . . . .”
The district court’s reliance on cases holding a mere allegation of venue in an indictment is sufficient to withstand a motion to dismiss are off-point, as this Indictment involves a statute that can only be violated in Washington, D.C., where EIGA filings must be made.[19]
This sentence reveals another danger of putting too much distance between the subject and the verb (this time, to the tune of 19 words): You’re likelier to fall into a subject-verb agreement trap. It’s “the reliance” that is off-point, not the cases, so the lawyers needed to write “is off-point,” not “are off-point,” here.
Also move “only” to after “violated.” (Tip: put “only” wherever you’d put “but only.”)
With respect to the Medicare dispute, the Indictment alleges Senator Menendez and his staff advocated to Department of Health and Human Services (“HHS”) officials to reimburse [Dr.] Melgen $8.9 million that Melgen had over-paid . . . .[20]
You would ask HHS to reimburse someone, or you would request that HHS reimburse someone. But you wouldn’t “advocate to” HHS “to reimburse” someone.
The district court also erroneously concluded that a Senator’s unfettered right to consider any factor in vetting a Presidential nominee for confirmation somehow does not include whether the nominee shares the Senator’s policy views.[21]
The factors, not the unfettered right, is what would “include whether the nominee shares the Senator’s policy views.”
Oversight is critical to preserve Congress’ power to direct administrative agencies.[22]
Oversight would be critical “to preserving.”
That flawed analysis led the district court to reject all Speech or Debate Clause privilege claims, but the district court invented a host of additional erroneous exceptions to further limit the scope of the constitutional immunity.[23]
Exceptions can be unwarranted and nonexistent, but they can’t be “erroneous.” Only the application or invocation of exceptions could be erroneous.
Simmons provides a hearing on a motion to suppress under the Fourth Amendment, where a defendant can testify to assert his constitutional right and that testimony cannot later be used against him.[24]
What does the “where” refer to? It appears to be the “hearing,” but I’m not sure. And how does “and that testimony” fit in?
Whether to hold a Simmons-like hearing is set out in this Court’s decision in Lee and the Fourth Circuit’s decision in Dowdy.[25]
A test or a standard could be set out, but “whether to hold” could not. Plus “set out” is British Legal English for “set forth.”
The district court did not specifically address what was discussed at that meeting, but it is clear from those present that it was about general policy, and no particular case, including Melgen’s.[26]
I think they meant “it was about general policy, not about any particular case, including Melgen’s.”
Senate Rule 34 requires Senators to submit financial disclosure reports each year to the Secretary of the Senate for review by the Ethics Committee, which the Committee makes public.[27]
What the Committee makes public is the reports, not itself. Placing a relative pronoun like “which” far from what it modifies is known as a remote-relative error. Perhaps change the phrase after “Ethics Committee” to “reports that the Committee makes public.”
The forms were drafted by the Senate Ethics Committee, filed with the Secretary of the Senate, and filing is required by Senate Rule 34.[28]
The third part of this sentence doesn’t track the other two. If you want to maintain parallel structure, the sentence won’t work as a three-part list. One solution: “The forms were drafted by the Senate Ethics Committee and were filed with the Secretary of the Senate, as required by Senate Rule 34.”
But the district court is wrong both as a matter of law and fact.[29]
The “both . . . and” construction requires parallel structure. It should read “as a matter of both law and fact.”
But the district court rejected the privilege, concluding the “true focus” was not information gathering, but rather to assist Dr. Melgen.[30]
You need parallel structure here, too: either “not information gathering but rather assisting” or “not to gather information but rather to assist.” (The “rather” is unnecessary but not wrong.)
There’s more that I would suggest pruning both here and in many other briefs: “i.e.,” “e.g.,” “plainly,” “rather,” “concerning,” the overzealous use of dashes and underlining for emphasis. The punctuation is sometimes off and sometimes inconsistent. The formatting could use a dose of my friend Matt Butterick’s Typography for Lawyers. And I could go on (the case is about the Speech or Debate clause, after all).
Overall, the brief is still an effective piece of advocacy, and these issues are unlikely to affect the outcome of the appeal.
But Seth Waxman and Paul Clement, your jobs are probably safe.
[1] The district court denied Senator Menendez’s motion to dismiss an indictment for conspiracy to commit bribery, honest-services fraud, and other alleged offenses.
[2] Brief at 18-20.
[3] Brief at 24. Note, too, that the definition wouldn’t be “broader than” the “district court” itself. It would be broader than the court’s definition. Or the lawyers could have added “did” after “district court.”
[4] Brief at 11.
[5] Insert “that” before “something” to avoid the miscue “Senate advised Members something.” And see the next part of this article!
[6] Brief at 53.
[7] Brief at 5. Emphasis added here and throughout.
[8] Brief at 60. (Not to mention that “even if relevant” is a dangling modifier.)
[9] Brief at 14.
[10] Brief at 26.
[11] Brief at 36.
[12] Brief at 38.
[13] Brief at 19.
[14] Brief at 40.
[15] Brief at 28.
[16] Brief at 31.
[17] Brief at 27.
[18] Brief at 51.
[19] Brief at 55. As explained above, we need a “that” both after “holding” and before “a mere allegation.”
[20] Brief at 4.
[21] Brief at 8.
[22] Brief at 21.
[23] Brief at 25.
[24] Brief at 36.
[25] Brief at 37.
[26] Brief at 45.
[27] Brief at 47.
[28] Brief at 50.
[29] Brief at 59.
[30] Brief at 32. Add a “that” after “concluding.”