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Washington Post on Speech or Debate

The Washington Post has a front page story today on the Speech or Debate Clause, and how it has been used to block certain investigations over the past few years.  The story touches on a number of criminal investigations of Members of Congress over the past few years.  Of particular interest, it discusses the legal wrangling over the wiretapping of former Representative Rick Renzi.  Melanie Sloan of CREW characterizes the House’s position in Renzi case as “basically” that “if you are a member of Congress, you cannot be wiretapped under any circumstances.”

As I discussed here, (“Does BLAG believe that Members of Congress are Immune from Federal Wiretaps”), Sloan appears to be right about this.  Irv Nathan, the former House Counsel, is cited (though not quoted) as responding that “prosecutors can use evidence collected through wiretaps or other means but must exclude anything related to legislative actions.”  This makes it sounds as if wiretaps are permissible so long as prosecutors do not use portions of conversations that involve legislative matters.  But the House’s position, as I understand it, is that wiretaps may not even intercept the privileged portions of conversations, and that prosecutors are prohibited from reviewing (or having reviewed) the transcripts from wiretaps to determine which portions may be privileged.  This makes the House’s position very close to a de facto ban on wiretapping of Members (or their staffs).

Incidentally, congratulations to Kerry Kircher, the long-time House Deputy General Counsel, whom Speaker Boehner has promoted to General Counsel.

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