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For example, if a sitting member of congress ("She") misleads the public on a TV news interview regarding the fiscal impact of proposed legislation. If the lie would adversely impact the taxes paid (or decrease income received) by certain constituents of her district, or increase the national debt, might those constituents file suit claiming fraud or negligent misrepresentation?

Extending that, if She first secretly works with an identifiable official of the executive branch ("He") to further such deception of the public. If He then commits an overt official act (in violation of official policy or the Hatch Act) and She later admits her participation (on TV) while still misleading the public. Would that demonstrate conspiracy actionable by constituents?

Who has the standing to raise such concerns in civil court? Might stockholders in a corporation in the representative's district who are particularly disadvantaged by the legislative goals of the misrepresentation have standing? Would such standing be reserved to those She represented directly?

Clarifications after further research

Please assume that either Washington State and Federal rules could apply. Based on an otherwise good answer, I've updated the original question to change "fraud" to "fraud or negligent misrepresentation". I add this with the understanding that the latter is when a person does not lie directly but has made a statement about a subject with no reason to believe it to be fact.

I posit that both government employees have a pecuniary interest in the passage of partisan legislation through their employment salary and campaign contributions. In addition, their future revenue as consultants might be at stake. How might "special duty to disclose" apply?

I'm assuming that neither She nor He is appropriately acting within their official capacity, but they are operating under the color of law. I think there's some Latin phrase for that, but I don't remember it.

I suggest the potential harm could be realized imminently by the passage of legislation. Both government employees should well know the potential for such harm, but fail to mention it publicly, and that omission is at the heart of the deception. They take care to hide it.

Could stockholder-constituents use civil rights law without demonstrating actual particularized financial harm?

Gravel v. the United States (408 US 618, 1972[?]) seems to provide some related guidance and citations re the Speech or Debate Clause of the Constitution. I recognize the specific circumstances of Gravel are inapplicable; I'll leave it up to more experienced members to find more appropriate authorities and determine how this would apply to my hypothetical civil action.

I'd also welcome any speculation about how an individual might act to mitigate my (hypothetical) representative's conduct. Please assume they are not looking for personal gain but to seek disgorgement of any income the representative or her campaign might obtain by way of said deception(s). The primary motive I posit is to block the legislation.

Would it be necessary to precisely identify any controversial income to raise this in civil court?

If successful, might reasonable attorneys fees be recovered? Would this be something a reasonable attorney might take up somehow without costing an individual stockholder-constituents an arm and a leg? Could this make a good class-action case?

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  • The first search hit I got was this. Does this relate to your question?
    – doneal24
    Oct 3 at 18:16
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    You're familiar with the distinction between lies in general, and the specific elements of the tort of fraud? Most lies are not fraud. Oct 3 at 19:55
  • 18 USC 287 is a criminal statute, so you cannot bring a civil case based on a violation. I assume you were just using it as an example, but just making sure. Also, as described you’d have an extremely hard time establishing standing (standing would be easier if you were personally affected, like if the member lied to the executive branch and based on that you were denied some government benefit).
    – cpast
    Oct 3 at 20:24
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    From some comments you've made, it sounds like this is at least as much of a standing question as a Speech and Debate one. You might consider editing the title to reflect that.
    – cpast
    Oct 3 at 21:50
  • @cpast, great suggestion. Title updated. I think I've covered your other suggestions in the body too. Oct 3 at 21:54
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The Justice Department ruling on Rep. Mo Brooks may point to your answer. Searching for his case will return multiple hits, such as this, this, and this.

In reporting from Reuters, U.S. Justice Dept won't defend Republican lawmaker in Capitol riot lawsuit, the news service quotes the DOJ saying:

"Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other..."

"Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative - or any federal employee - and thus is not the sort of conduct for which the United States is properly substituted as a defendant under the Westfall Act,"

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  • 1
    Good start @doneal24. Best practice for an answer on SO is to extract quotes from such news articles (with citations of course.) Link-only answers can rapidly become less useful. Oct 3 at 18:28
  • I think your edits just undid the more expansive comments I added to the answer including a link to congress.gov.
    – doneal24
    Oct 3 at 18:37
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    The Westfall Act's provisions aren't identical to the Speech or Debate Clause. The Speech or Debate Clause generally provides stronger immunity (both civil and criminal) but on a narrower range of topics (only legislative actions count, not other official business like calling executive agencies on a constituent's behalf).
    – cpast
    Oct 3 at 20:38
  • @doneal24, sorry for any edit conflicts. I think the actual quote from the DOJ is really the key here, it certainly gives me the hope that arguing some sort of official immunity might be ruled out. Oct 4 at 0:19
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When this answer was written, the question described the conduct of the member of Congress as fraud, not as negligent misrepresentation.

First of all, the speech of a politician (or indeed of anyone) on an issue of public concern is not fraud, and an action for fraud cannot be based on it, whether it is made on the floor of the House or Senate, a talk-radio program, or twitter, and whether of not the speaker has been elected to anything.

For a statement to be fraud in a legal sense, it must, in most common-law jurisdictions:

  1. Be false;
  2. Have been made knowing that it is false, or with reckless disregard of the truth;
  3. Have been reasonably relied on by the person defrauded;
  4. Be material to the decision of the person defrauded;
  5. Have been intended to harm the person defrauded or work an advantage to the speaker, usually a financial advantage (or both);
  6. have resulted in damage or (in some jurisdictions) have been likely to result in damage.

The kind of statement the question discusses is likely to fail several of these, and also to be protected speech under the US First Amendment.

If the statement is a false factual statement (not a statement of opinion) it might constitute defamation, and the subject might have grounds for a lawsuit, but not if the statement was made in the course of proper legislative functions. ("We must pass this bill so that gangsters, like Smith, can no longer bilk the public." Smith will probably not be able to sue, although under other circumstances calling Smith a "gangster" would be actionable.)

The idea of "fraud on the [public" in this fact pattern is not meaningful. One who steals or embezzles public funds may be said to commit a fraud on the public.

Moreover whether such an action would be "detrimental" or not would usually be a matter of opnion, which the courts will not take cognizance of. The sole remedy here is political, to defeat the speaker or the speaker's political platform.

Standing

In general no one has standing in a Federal court to sue unless the would-be plaintiff has suffered particularized harm (not just harm as a member of the public or of a broad group, such a homeowners or taxpayers, or a reasonable imminent threat of such harm. Rules of standing are significantly looser in some state courts.

Specifically it has been held that an interest shared with all taxpayers, or all constituents of a particular legislator, or all members of the public is not sufficient for standing in a federal court. I do no have citations to hand, but could add them later.

Sources

Fraud is a very old common-law concept, and has been defined many times in somewhat different words, and redefined in statute in many jurisdictions. For some expressions of the law of fraud and its basic elements, see

I intend to add to this answer within the next 24 hours

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  • @Burt A writ of certiorari is directed from a higher court (such as the US Supreme Court) to a lower court to take a case for review. It's name comes from a Latin phrase meaning "let it be certified" and formally it asks for a certified copy of the record of the case. It does not fit this situation. A writ of mandamus requires an official to take some specified action, usually on the grounds that it is the official's non-discretionary duty to take that action. That is a closer fit, but would not be applied here , because making a policy statement is always discretionary Oct 3 at 22:42
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    @Burt please in future do not change a question so as to invalidate an existing answer. You can add a section saying something like "An answer says it cannot be X, what about Y". Oct 3 at 23:05
  • @Burt Indeed. Note the statement there "liability for negligent misrepresentation is limited to misrepresentations made in the course of a business transaction or a transaction in which the maker of the misrepresentation has a pecuniary interest" although it later goes on to include physical harm. See that this would rule out the case in the question. Oct 3 at 23:11
  • The primary thrust of the question had to do with official immunity. I used fraud in a hypothetical example. Oct 4 at 0:07

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