Renzi’s Speech or Debate Defense


            Congressman Rick Renzi, currently facing federal trial on corruption charges, moved this week to dismiss the indictment based on the Speech or Debate Clause of the Constitution.  Renzi argues that the indictment is flawed because the grand jury relied on two types of information privileged under the Clause.  First, the grand jury relied on documents “referencing, describing, and directly involving the development of legislation” and “describing Members’ motivations for and performance of legislative acts.”  For example, the grand jury was presented with an email from one of Renzi’s aides to House Legislative Counsel stating: “[t]his is a very rough draft of a bill put together by an individual I am working with on a land exchange.  My boss wants to get this finalized and introduced next week.”  The grand jury was also presented with the actual draft legislation circulated between Renzi’s office and House Legislative Counsel. 

            Second, Renzi argues that the grand jury heard testimony from his former aides regarding matters protected by the Speech or Debate Clause.  For example, Joanne Keene, Renzi’s former Legislative Director, testified regarding the development of the “Resolution Copper land exchange” legislation, which Renzi introduced in May 2005.  Among other things, she described a communication with Renzi in which he expressed a reluctance to move forward with the legislation at that particular time.  Keene and another former aide also testified about internal congressional discussions regarding strategies for advancing land exchange legislation, such as whether Renzi or other Members would sponsor or co-sponsor particular bills, which Member should take the lead in moving a particular bill, and whether a bill should be scheduled for hearings first in the House or Senate. 

            One can anticipate that the government’s response to Renzi’s Speech or Debate argument will be similar to the position it has taken in the Ted Stevens case, where it has argued for a narrow construction of the Speech or Debate Clause.  The key legal issue would seem to be the applicability of the Clause to conduct and communications relating to future legislative acts.  In United States v. Helstoski, 442 U.S. 477, 490 (1979), the Supreme Court enunciated the following limitation on the protection of the Clause: “[I]t is clear from the language of the Clause that protection extends only to an act that has already been performed.  A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.’  Likewise, a promise to introduce a bill is not a legislative act.” 

            Read broadly, as the government is likely to do, this language may suggest that all activities and discussions preliminary to actual introduction of legislation are unprotected because they merely relate to future legislative acts.  However, Helstoski was referring specifically to a Member’s promise to perform a legislative act in exchange for a bribe.  Because the “compact” between the bribe-giver and the bribe-receiver is not part of the legislative process protected by Speech or Debate, the Helstoki Court reasoned that Speech or Debate could not protect the bribe-taker’s promise to perform a legislative act, which promise is, after all, merely half of the unprotected “compact.”

            In the Stevens case, the government argued that Helstoski leaves unprotected any discussions between a Member and constituents regarding potential legislation.  This assumes, however, that such discussions are not in themselves part of the legislative process.  As Josh Chafetz has asked, since other Supreme Court precedent suggests that preparatory research for a hearing or vote is protected by Speech or Debate, “why [should] not preparatory meetings or correspondence with constituents also be protected?”  J. Chafetz, Democracy’s Privileged Few 108 (2007). 

            The Speech or Debate Clause protects activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”  Gravel v. United States,  408 U.S. 606, 624 (1972).  Surely this legislative sphere must encompass activities and discussions prior to the actual introduction of legislation.  Indeed, in the Stevens case, even the government itself acknowledged  that Speech or Debate covers activities “integral to the Member’s participation in the drafting, consideration, debate, and passage or defeat of legislation.”  (emphasis added). 

            Legislation does not appear out of thin air and deposit itself in the legislator’s hand, ready to be dropped in the hopper (the box on the House floor where legislation is introduced).  The need for the legislation may be the subject of hearings and informal fact-gathering by the Member and his or her staff.  The legislative language must be drafted, normally with the assistance of House Legislative Counsel.  Co-sponsors may be sought, and they, along with other interested parties, consulted about the proposed legislation.   

            At a minimum, internal congressional activities preparatory to the introduction of legislation, such as communications with House Legislative Counsel (which also may be attorney-client privileged, see 2 U.S.C. § 281a), would seem to be covered by the Speech or Debate privilege.  The same should be true of actual legislative drafting, discussions regarding the timing and manner of introducing legislation, and bargaining regarding sponsorship of or support for particular measures.  Since the Renzi grand jury was evidently exposed to a significant amount of such information (as well as to some information regarding the actual introduction of legislation), I think there is a substantial possibility that the Renzi case could be dismissed, in whole or in part, on Speech or Debate grounds.



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