The Broun employee in question, Brett O’Donnell, pleaded guilty in 2015 to a false-statement charge. He was sentenced to two years’ probation and a $10,000 fine.

The appeals judges who took up Bowser’s case on Monday offered some glimmers of hope for his defense, but it sounded unlikely that he would see a ruling that wipes out all the guilty verdicts against him.

Judge Robert Wilkins expressed concern that the court not be seen to be criminalizing the widespread practice of congressional staffers moonlighting for campaigns.

“It seems a bit concerning here to base a prosecution on someone and the extent to which they volunteered campaign services when it’s pretty much common knowledge … that probably the vast majority of official staff out there volunteer for their principal’s campaigns in some capacity,” said Wilkins, an appointee of President Barack Obama. “Why shouldn’t we be concerned about some line drawing in this case?”

Wilkins noted that former Rep. Tom Davis (R-Va.) testified for Bowser’s defense that congressional staffers performing dual roles was commonplace.

Judge Robert Wilkins expressed concern that the court not be seen to be criminalizing the widespread practice of congressional staffers moonlighting for campaigns. | Manuel Balce Ceneta, File/AP Photo

Justice Department attorney James Pearce said O’Donnell's specialty was to “essentially give political, campaign-type of help.” Pearce also noted that an adviser to Broun’s campaign, Jason Miller, testified that he viewed O’Donnell as someone who was essentially a campaign consultant and not a congressional office staffer. (Miller later came to prominence as an adviser to Donald Trump’s presidential campaign.)

Pearce said the rule on the point was “clear,” but he also insisted that it was largely irrelevant to the criminal case against Bowser for trying to deceive the ethics-focused House office.

“This is simply: ‘Was that statement true or false?’ There’s no need to interpret a House rule,” the prosecutor said.

Bowser’s attorney, Leslie McAdoo Gordon, contends that the entire case against him is tainted by a constitutional prohibition on the courts enforcing ambiguous congressional rules. The Office of Congressional Ethics’ investigation was aimed at enforcing a House rule that prohibits use of official funds for political purposes.

Gordon’s position immediately ran into skepticism from Judge Thomas Griffith.

“I don't understand your justiciability argument,” said Griffith, who emphasized that Bowser was charged with making false statements, but not with violating a House rule. “I don’t understand the ambiguity here.”

“The government cannot prosecute criminally members of Congress or their staff when there’s requirement that the rules of the House be interpreted … to fulfill the government’s theory of prosecution,” McAdoo Gordon said.

“It’s only when the House rule is ambiguous .. not when it’s clear,” replied Griffith, an appointee of President George W. Bush.

While Griffith asserted that there was no ambiguity in the House rule against using public funds for political work, McAdoo Gordon said her client’s responses were linked to the House’s malleable interpretations of what kind of spending is primarily official and what is primarily political.

“The ‘primary purpose’ test is what was influencing Mr. Bowser’s answers,” she said.

Griffith said circumstantial evidence suggested that O’Donnell wasn’t really hired to do House work, but to handle debate prep for Broun.

“Wasn’t the evidence that within two hours of him being introduced to the staff, [O’Donnell] was told, ‘Go help the congressman prepare for the debate?” the judge asked

“He was asked,” McAdoo Gordon said. “It’s our position that Mr. O’Donnell volunteered all of those services."

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“If you hire someone and two hours later you tell them … ‘We'd like you to help with the debate,’ that casts some light on the intention,” Griffith replied.

Another key issue at the center of the case is the authority of the Office of Congressional Ethics, a unit established in 2008 to step up enforcement of House ethics rules.

Four months after the jury verdicts in Bowser’s case, U.S. District Court Judge Emmet Sullivan tossed out Bowser’s conviction on an obstruction of Congress charge, ruling that statute doesn't criminalize interference with an ethics office investigation.

Griffith seemed to concur with that decision. “This is not a house. This is not a committee. This is an office,” he said.

Griffith also questioned Bowser’s conviction on a concealment charge that requires that an individual violate a duty to fully answer questions from authorities. “So the OCE can create a duty to disclose with just a letter or a form? That’s troubling,” the judge said.

The third judge on the panel, Karen Henderson, also seemed to favor the trial judge’s ruling that the obstruction of Congress statute does not cover ethics office proceedings.

Bowser went on to work as chief of staff to Rep. Mimi Walters (R-Calif.) before resigning after he was indicted in 2016. After his 2018 trial, he was sentenced to four months in prison and two months of home confinement, but Sullivan postponed the sentence pending resolution of the appeal.