## Facts

- David G. Bowser served as chief of staff to a Member of Congress.
- Bowser arranged for the office to retain a communications consultant who, although presented as performing official duties, also performed substantial campaign-related work.
- House rules prohibited use of official office funds from the Members’ Representational Allowance to pay for campaign work.
- The Office of Congressional Ethics (OCE) opened a preliminary review into whether official funds were improperly used for campaign services.
- During the OCE review and related inquiries, Bowser allegedly concealed material information and made materially false statements about the consultant’s work and billing.
- A federal grand jury charged Bowser with multiple offenses, including concealment, false statements under 18 U.S.C. § 1001, and an obstruction-of-Congress theory premised on interference with the OCE review.
- A jury convicted Bowser on several counts related to concealment and false statements, and also returned a conviction on the obstruction-of-Congress count.
- Post-trial, the district court entered a judgment of acquittal on the obstruction-of-Congress count, concluding the OCE’s preliminary review was not a “proceeding of Congress” under the charged obstruction theory.
- The government appealed the acquittal on the obstruction-of-Congress count; Bowser cross-appealed his remaining convictions, raising due process, justiciability, sufficiency, and jury-instruction claims.

## Issues

1. Whether obstruction of an OCE preliminary review can support an obstruction-of-Congress charge predicated on interference with a “proceeding of Congress.”
2. Whether applying a concealment theory to Bowser’s alleged nondisclosures during the OCE-related inquiry violated due process for lack of fair notice.
3. Whether false-statement prosecutions arising from statements to OCE investigators are justiciable given separation-of-powers concerns.
4. Whether the evidence and jury instructions supported the false-statement convictions, and whether any instructional omissions were harmless.

## Decision

- Affirmed the district court’s judgment of acquittal on the obstruction-of-Congress count.
- Affirmed the concealment conviction, rejecting Bowser’s fair-notice challenge.
- Affirmed Bowser’s false-statement convictions, holding the case justiciable, the evidence sufficient, and the challenged instruction rulings nonreversible.
- Held that any failure to instruct the jury to disregard evidence tied to counts no longer in the case was harmless on the record.

## Legal Principles

- When the House’s rules structure an ethics process so that an OCE review precedes any committee investigation, obstruction of the OCE review, without more, may fall outside a charged theory requiring obstruction of a “proceeding of Congress.”
- Due process “fair notice” is satisfied where generally applicable criminal statutes proscribe concealment or misrepresentation in matters within federal jurisdiction and the context makes clear the inquiry concerns official funds and official oversight.
- Enforcement of generally applicable federal criminal statutes (including 18 U.S.C. § 1001) against congressional staff for statements made to investigators can be justiciable and does not necessarily require courts to adjudicate internal legislative rulemaking.
- Convictions will be affirmed where a rational jury could find falsity and materiality beyond a reasonable doubt, and where claimed instructional errors do not affect substantial rights (harmless error).

## Conclusion

The D.C. Circuit upheld Bowser’s concealment and false-statement convictions arising from an OCE review into potential misuse of official funds, concluding the prosecution was justiciable and supported by sufficient evidence, while affirming the acquittal on an obstruction-of-Congress theory because the OCE’s preliminary review was not treated as a congressional “proceeding” under the charged approach.


United States v. Bowser, 949 F.3d 357 (D.C. Cir. 2020)