Was the Renzi Wiretap Unconstitutional?

          Another critical Speech or Debate issue in the Renzi case involves the wiretap on a cellular phone used by Renzi.   The Arizona federal court authorized the wiretap for a 30-day period from late October to late November 2006.  The wiretap order required the monitor to stop listening when a conversation “relates directly to legislation pending before the United States Congress,” but provided that such conversation would still be recorded and placed in a sealed envelope for later review by an independent group of investigators or prosecutors.  Moreover, the order explicitly excepted conversations related to the land exchange legislation under investigation; these conversations were to be fully monitored and reviewed. 

            Renzi, with the support of the House leadership, maintains that the wiretap was an unconstitutional violation of the Speech or Debate Clause.  Relying on United States v. Rayburn House Office Bldg, 497 F.3d 654 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1738 (2008), Renzi and the House argue that the Clause contains a “non-disclosure” element that prohibits law enforcement from “seizing” non-public legislative information from a Member of Congress (or congressional aide), whether by subpoena, search warrant or wiretap.

In Rayburn, the D.C. Circuit held that compelled disclosure of protected legislative documents during the execution of a search warrant for a congressional office violated the Speech or Debate Clause. Although the search warrant in Rayburn was not directed at legislative materials, the court held that because the search “exposed legislative material to the Executive” as law enforcement officials conducted a review of the Congressman’s files, the search was unconstitutional.

As Judge Henderson warned in a separate opinion, the Rayburn majority’s conclusion that “the Clause’s shield protects against any Executive Branch exposure to records of legislative acts would jeopardize [a number of] law enforcement tools,” including “surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.” Indeed, in its petition for certiorari in Rayburn, the Department of Justice asserted that the decision “potentially jeopardizes wiretaps . . . directed at Members” and informed the Supreme Court that “[t]he government does not presently intend to use wiretaps against Members in the District of Columbia” as a result of the Rayburn holding.

The Renzi prosecutors somewhat half-heartedly attempt to distinguish Rayburn on the basis of the official nature of the property searched. They argue that Rayburn might apply if the wiretap had been on Renzi’s office phone, or an official cell phone. Here, however, the wiretap was on a personal cell phone that was not even in Renzi’s name, but registered to a private business held in the name of Renzi’s wife. The prosecutors argue that “[t]here is manifestly far less danger in intercepting calls made over a [private] business telephone” than an official phone.

This distinction, however, is unpersuasive. There is nothing in the reasoning of the Rayburn decision to suggest that its holding is limited to cases where a search is conducted of official congressional premises. If the rationale of Rayburn is that the Speech or Debate Clause prohibits the seizure of non-public legislative information from a Member of Congress, it would not seem to matter where the information happens to be located (as long as it is under the control of a Member). Nor is it plausible to suggest that there was little danger of seizing such information from Renzi’s cell phone. As the House points out, “the Congressman had only one cell phone, the phone that was the subject of the Wiretap Order, and that he regularly conducted legislative activities over that cell phone. The Department was certainly well aware, when it applied for the order, that Congressman Renzi used his cell phone to conduct legislative activities because, among other things, the Wiretap Order and Monitoriing Memo specifically contemplated the monitoring and recording of legislative conversations.” Indeed, this would seem to make the wiretap order more problematic, based on the rationale of Rayburn, than the search warrant involved in Rayburn itself, which was not aimed at seizing legislative materials.

If Rayburn was correctly decided, the Renzi wiretap is almost certainly unconstitutional. In fact, it is difficult to see how Members of Congress could ever be subject to wiretaps because such wiretaps would almost always intercept some legislative information. The House claims that a Member of Congress can be wiretapped so long as “appropriate safeguards” (which the House does not identify) are in place. But what would such safeguards look like? As the House itself argued in the Rayburn case, determining whether a particular communication is privileged under the Speech or Debate Clause requires a good deal of analysis and investigation. As the House put it, “[e]ven House Counsel which, along with Senate Legal Counsel, deals with Speech or Debate matters on an almost daily basis and has litigated numerous Speech or Debate cases, frequently cannot tell, merely by looking at a document, whether it is privileged.” A wiretap monitor certainly cannot be expected to make that judgment on the spot.

Judge Henderson was right. The Rayburn decision makes it problematic for law enforcement to use a whole host of investigative techniques with regard to Members of Congress. The Renzi case may provide the Supreme Court with another opportunity to address this important issue.

House’s Speech or Debate Position in the Renzi Case

         The House brief in the Renzi case contends that the Department of Justice violated the Speech or Debate Clause when it questioned Renzi aides before the grand jury regarding protected legislative activities.  It also argues that the Department violated the Clause when it presented to the grand jury “significant numbers of internal House emails and other records from Congressman Renzi’s office that discussed or related directly to proposed legislative land exchanges.”  These violations, it says, were “flagrant,” “[s]ubstantial, repeated and persistent.” 

            The House provides a number of examples of testimony and documents that were presented to the grand jury in violation of the Speech or Debate Clause.  These include evidence regarding Renzi’s motives for supporting or opposing particular aspects of the proposed land exchanges, internal congressional discussions of legislative strategy, particularly as related to the roles and views of Members of the Arizona delegation who supported the land exchanges, and drafts of the proposed legislation itself. 

            The House, however, does not directly address what is likely to be the key Speech or Debate issue in the case, i.e., whether Renzi’s discussions with private parties regarding the proposed legislation, including the discussions where he allegedly “extorted” those parties by insisting that the land exchanges include property owned by his associate Sandlin, were protected by the privilege. 

Some portions of the House’s brief suggest that it would answer this question in the affirmative. For example, the House emphasizes that “the development of direct land exchange legislation resembles the negotiation of a commercial contract, and extensive negotiations between the private landholder and a Member of the House or Senate are a normal and routine part of the process.” This implies that such negotiations are an “integral part of the deliberative and communicative processes by which Member participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation,” which is the test the Supreme Court has enunciated for determining whether the privilege applies.

The House also asserts that Speech or Debate protection should apply to internal congressional records that contain “descriptions of meetings with constituents, lobbyists and others regarding legislation,” which would seem to suggest that such meetings are part of the legislative process. Although the House does not explicitly respond to the prosecution’s contention that such meetings are not protected if they merely discuss future legislative action, its legal discussion highlights the fact that “the privilege also extends to preparations for and information gathering in furtherance of, legislative activities.” Thus, one can infer that the negotiations with landholders regarding potential land exchange legislation must be protected because such negotiations are themselves integral to the development of such legislation and/or because they are essential fact-gathering activities in support of the legislation.

On the other hand, the House makes clear that it is not seeking “to protect Congressman Renzi from criminal investigation or prosecution [or] to suggest that he or any other Member of Congress is above the law or immune from prosecution.” Specifically, it emphasizes that “the Leadership Group is not suggesting that this case cannot be properly charged and prosecuted.”

The problem is that it may be impossible to charge or prosecute Renzi with regard to the land exchange legislation if his discussions with the private landholders are protected by Speech or Debate. Thus, there may be an inherent conflict between the House’s preferred legal position and the political imperative of avoiding the appearance of seeking to protect Renzi. Because of this conflict, the House may have chosen to address the key legal issues only elliptically, leaving it to the judge to read between the lines.

The House Files an Amicus Brief in the Renzi Case

        The House Bipartisan Legal Advisory Group (which consists of the Speaker, the Majority and Minority Leaders, and the Majority and Minority Whips) has filed an amicus brief in the Renzi case.   BLAG argues that the Department of Justice committed “clear violations of the Speech or Debate Clause” in connection with the wiretap of Congressman Renzi’s cell phone and in presenting evidence to the original grand jury that indicted Renzi (a new grand jury has since issued a superseding indictment).   

            As a consequence of these violations, BLAG contends that the court should “suppress all evidence secured as a direct or indirect result of the wiretap.”  It also maintains that the court should dismiss those portions of the superseding indictment (Counts 1-27 and portions of Count 42) which relate to Congressman Renzi’s involvement with private parties regarding legislative land exchanges “unless the Court, after a thorough review of all materials presented to the second grand jury, determines that the Department managed to extract completely all Speech or Debate material and all information derived from its earlier violations from its presentation to the second grand jury.” 

            In my next post I will analyze the House’s arguments relating to the presentation of evidence to the grand jury.

The Government Responds to Renzi’s Speech or Debate Motion

       The prosecution has responded to Congressman Renzi’s motion to dismiss the indictment based on the Speech or Debate Clause.  The most important question presented is whether Speech or Debate applies to Renzi’s communications with two outside groups—Resolution Copper and the Aries Group—regarding land exchange legislation the groups were seeking.  (There are also significant Speech or Debate issues relating to how the government gathered some of the evidence in the case, but these are not the subject of today’s post). 

            Renzi contends that these communications are an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.  Specifically, “[e]xtensive negotiations between the private landholder and the Member (or Members) of Congress are an essential and integral predicate to a successful land exchange.”  Renzi Motion at 17.  

            The prosecution’s response is somewhat complicated.  At the outset, the government relies (as expected) on the Supreme Court’s statement in Helstoski that “[a] promise to deliver a speech, to vote or to solicit votes at some future date is not ‘speech or debate.’  Likewise, a promise to introduce a bill is not a legislative act.”


However, rather than focusing solely on the fact that Renzi’s communications with Resolution Copper and the Aries Group related to future legislation, the government also emphasizes that these communications were part and parcel of Renzi’s alleged extortion scheme:

Renzi thus made promises—first to Resolution Copper and later to the Aries Group—to vote and solicit other votes for the respective land swap proposals in return for the purchase of the Sandlin property. . . . These promises for future votes were not legislative acts. . . . Renzi’s promises were integral to his broader acts of extortion against Resolution Copper and the Aries Group, acts which find no protection in Speech or Debate jurisprudence.

Government Response at 7.

Interestingly, the government concedes that some of the documents presented to the grand jury were protected legislative material. Government Response at 12 n.8. These documents evidently consist of internal congressional emails discussing and transmitting drafts of the land exchange legislation. By acknowledging that these emails are part of the legislative process, the government implicitly concedes that the drafting of legislation is protected activity.

On the other hand, the prosecution apparently maintains that when such internal congressional emails were forwarded to outside parties, they lost their protected status. It contends that “Renzi clearly consented to the distribution of emails and letters to third parties, and that consent takes those materials outside the protection of United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654, 663 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1738 (2008), even were those materials to fall within the definition of ‘speech or debate. . . . ’” Government Response at 13.

This aspect of the prosecution’s argument, at least, makes no sense. Renzi’s distribution of legislative materials to third parties enables the government to obtain those materials from the third parties without violating the Speech or Debate Clause, but it doesn’t have any bearing on whether the materials can be introduced as evidence against Renzi. The prosecution cannot use a document created or received by a third party if the document evidences a legislative act any more than it could have a third party testify about how Renzi voted.

What about the government’s contention that Renzi’s communications with Resolution Copper and the Aries Group were unprotected? If Renzi had told these groups that he would support the proposed legislation in exchange for a payment of money to Sandlin, such communication would clearly be unprotected under Helstoski. But that is not what happened. Instead, Renzi told these groups that he would support the legislation only if the Sandlin property were included in the land exchange. Unlike a promise to support legislation in exchange for a bribe, this statement would seem to be a facially legitimate part of the legislative process.

Of course, one might argue, as the government does, that conversations with lobbyists or other outside parties are not an integral part of the legislative process, and therefore do not merit protection under the Speech or Debate Clause. However, there are two difficulties with that position. First, there is authority in the Ninth Circuit, Miller v. Transamerican Press, to the effect that Speech or Debate protects a Congressman’s source of information from outside parties such as constituents or confidential informants.

Second, the process of drafting land exchange legislation would seem to necessarily involve communications with the private landowners who are to be exchanging land with the United States. Thus, as Renzi argues, these particular communications ought to be viewed as an integral part of the deliberative and communicative processes by which Members develop land exchange legislation, even if communications with interested parties about other types of legislation might not be.

Unlike the Stevens and Jefferson cases, which involve legislative matters only tangentially, the Renzi fact pattern goes to the very heart of open issues in Speech or Debate jurisprudence. This is a case that could very well end up in the Supreme Court.

A Roadmap for the Stevens Expulsion

Here is my proposal for a principled resolution of the Stevens matter. 

            1.  The first question that should be addressed is whether Stevens’s underlying conduct, independent of the fact of his conviction, warrants expulsion.  I suspect that the Senate’s answer to this question would be no.  In essence, the case against Stevens was that he received benefits which he knew or should have known were gifts, and that he failed to report them.  The Senate would most likely not see this as something that should be treated as a criminal matter, and certainly not the type of corruption that would merit the ultimate sanction of expulsion. 

            2.  If the answer to the first question is no, what role should the fact of Stevens’s conviction play in the Senate’s deliberations?  If the underlying conduct does not warrant expulsion, it would seem that the jury’s verdict, standing alone, would not change this conclusion.  Therefore, the Senate should not expel Stevens simply for being a “convicted felon.”     

            3.  If the answer to the first question is yes, the Senate must then consider what weight to give to the fact of Stevens’s re-election.  While I do not believe that his re-election deprives the Senate of the power to expel, constitutional considerations, supported by longstanding precedent and practice in both Houses, suggests that this power must be used with extreme caution in cases where the electorate has acted with knowledge of the misconduct.  The Senate must therefore decide whether Stevens’s conduct was so egregious as to permit it to override the will of the voters.  If the answer is yes, the Senate may proceed to immediate expulsion.  For reasons indicated earlier, however, the answer in all likelihood would be no. 

(It has been suggested that some voters who supported Stevens did not do so because they wanted him to be in office, but because they wanted to keep the seat in Republican control.  While this may or may not be true, I don’t think it should play a role in the Senate’s decision.  Constituents vote for all kinds of reasons, and the Senate should not be in the business of attempting to discern the motives of groups of voters in particular elections).   

            4.  If the Senate decides that immediate expulsion is not warranted (either because it is not justified by the underlying conduct or because of the need to defer to the will of the voters), it still must decide what to do in the event that Stevens is required to report to prison.  Because a Senator cannot perform his legislative and representational duties while in prison, the Senate would be justified in expelling him under those circumstances.  On the other hand, one might argue that if the prison sentence were very short, or if Stevens had not exhausted his appeals, the Senate should continue to defer expulsion. 

            5.  Even if Stevens receives a substantial prison sentence and his appeals are rejected, there is one additional issue that the Senate should consider before voting to expel.  Because the Constitution places the decision on whether to expel a Member in the Congress, not in the judicial branch, the Senate should not simply act as a rubber stamp on the decision made by the jury and court.  

 Instead, the Senate should consider whether Stevens’s conviction was consistent with the rights and privileges of the Senate.  This is a different question than whether the Senate would have reached the same result as the jury on the evidence presented at trial, or whether there was some procedural error in the trial.  Instead, the question should be whether the prosecution or trial violated the separation of powers or the Senate’s autonomy by, for example, relying on evidence protected by the Speech or Debate Clause or improperly construing the Senate’s rules.  The Senate might also consider the issue of prosecutorial misconduct in this connection.  Only if the Senate is persuaded that the conviction was consistent with its rights and privileges should it proceed to expel Stevens.


More on a Stevens Expulsion


        Much discussion continues on whether the Senate can or will expel Senator Stevens.  Several Senators, including Majority Leader Reid, have suggested that expulsion is a virtual certainty.  Minority Leader McConnell, on the other hand, has indicated that Stevens should be given a chance to pursue his appeal before expulsion, leaving open the question of what happens should Stevens be required to report to prison while his appeal is still pending. 

            Stan Brand, the former General Counsel of the House, is quoted today as saying that “given the voter condonation of [Stevens’s] conduct, I think there are serious [constitutional] questions about whether they could expel him.”   

            Thus, possible resolutions range from immediate expulsion without regard to what might happen in the appeals process, on the one hand, to respecting the will of the voters and allowing Stevens to remain in the Senate without regard to whether he is required to serve time in prison, on the other.  In my judgment, the proper course is somewhere in the middle, close to what Senator McConnell has suggested. 

            I do not believe that the re-election of Senator Stevens constitutes a jurisdictional bar to Senate expulsion in this matter.  Although there is some Senate precedent to support such a position, the better view would be that the Senate retains the constitutional power of expulsion even for conduct known to the voters at the time of re-election. 

            Nevertheless, in my view the fact of Stevens’s re-election is more than merely a “political” issue as suggested in Professor Rick Hasen’s Election Law Blog today.  To my mind, this implies that the Senate’s constitutional authority is unconstrained by the fact of the voters’ verdict, and the only issue is whether there would be some sort of political fallout for Senators who vote for or against expulsion.  On the contrary, I believe that the Senate has a constitutional obligation, supported by its own precedents (and similar precedents in the House), to consider the decision of Alaska voters as a factor weighing heavily against expulsion. 

            Professor Hasen cites a CRS report to the effect that while each House of Congress has the authority to expel for misconduct known to the voters at the time of election, “it has been a general practice and policy in Congress not to expel a Member for past offenses if the electorate knew of the offenses involved, and still chose to elect or reelect that individual as their Representative or Senator in Congress.”  (emphasis in original). 

True enough as far as it goes, but it should not be inferred that this policy is one that each House could simply ignore or change.  As one of the precedents cited by the CRS report explains, the policy is one of constitutional dimension: 

  As a matter of sound policy, this extraordinary prerogative of the House, in our judgment, should be exercised only in extreme cases and always with great caution and after due circumspection, and should be invoked with greater caution where the acts of misconduct complained of had become public previous to and were generally known at the time of the Member’s election. To exercise such power in that instance the House might abuse its high prerogative, and in our opinion might exceed the just limitations of its constitutional authority by seeking to substitute its own standards and ideals for the standards and ideals of the constituency of the Member who had deliberately chosen him to be their Representative. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.   

VI Cannon’s Precedents, § 398 (emphasis added). 

            In my next post, I will propose how the Senate might think about the issue of whether Stevens should be expelled.

Senators Inouye and Reid Debate the Stevens Case

Roll Call reports the following debate between Senators Inouye and Reid: 

In a statement released by the Stevens campaign, Inouye argues that his longtime friend will be seated as a Member of the Senate next year if re elected and that he believes the felony convictions will be overturned.

“As the Senate has done in every other instance in its long 220-year history, I am absolutely confident that Ted Stevens will be sworn into the Senate while he appeals this unjust verdict, I am certain that this decision in Washington, D.C., will be overturned on appeal,” Inouye said.

But Reid rejected that reading of Senate history and chastised Stevens for using his friend in a political campaign.

“While I respect the opinion of Senator Daniel Inouye, the reality is that a convicted felon is not going to be able to serve in the United States Senate. And as precedent shows us, Senator Stevens will face an ethics committee investigation and expulsion, regardless of his appeals process,” Reid said.

Lets be clear here.  If Stevens is re-elected, he will be seated as Member of the Senate.  He meets the constitutional qualifications (he has been a citizen for nine years, is an inhabitant of Alaska and is way more than thirty years old) and thus the Senate has no power to exclude him.  So Senator Inouye is certainly correct about that.

As for Senator Reid’s claim that “precedent” shows that Stevens will face expulsion regardless of what happens with his appeal, this is questionable.  Given that no Senator has ever been expelled under circumstances remotely comparable, one certainly cannot claim that precedent demands Stevens’s expulsion.  As I have pointed out, the most relevant precedent is the Harrison Williams case, which suggests that the Senate would allow Stevens the opportunity to seek post-trial relief up to the point that he would actually face the prospect of going to prison.

The first thing that will happen, of course, is that the Senate Ethics Committee will commence an inquiry and review the evidence.  As Rob Walker, former staff director of the committee, has explained, the committee will likely rely heavily on the trial transcript, but also must give Stevens and his counsel an opportunity to present evidence and argument in defense of the charges.  The members of the Committee are then required to make an independent judgment as to whether Stevens is guilty of the criminal charges and/or violations of any Senate rules.

In reality, however, the members of the Committee (and ultimately the Senate as a whole) are likely to be less concerned with the evidence than with the difficulty of squaring their decision with two external judgments that point in opposite directions (1) the jury verdict of guilty and (2) the (hypothetical) decision of Alaska voters to return Stevens to the Senate. 

It is difficult to say at this juncture how the Committee or the Senate would resolve this tension.  In principle, the Senate should make an independent judgment as to whether the offenses established by the evidence warrant expulsion.  Precedent, at least in the legal sense, does not tell us much about what judgment the Senate should make.  It seems most likely, however, that the Senate would follow the practice in the Williams matter and allow Stevens the opportunity to pursue post-trial remedies.

What happens if Stevens cannot avoid going to prison, but still has a chance of getting his conviction overturned on appeal?  Most likely, he would resign, but if he did not, the Senate would probably expel him.  This conclusion is dictated less by precedent than by the assumption that Senators would not be comfortable with the idea of a sitting Senator sitting in jail.    

Washington Post Article on Speech or Debate

          The Washington Post has a front page article today, above the fold, today on the Speech or Debate clause, which the reporter explains, “is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate scandal.”   

            One interesting revelation of the article is that the House Counsel’s office is seeking to file an amicus brief on behalf of the Bipartisan Legal Advisory Group in the Renzi case.  As I have noted, the government’s position in the Renzi case would inappropriately limit the scope of the Speech or Debate Clause.  Thus, it is not surprising that the House Counsel’s office would want to make its views known (though it is somewhat surprising that the BLAG was willing to intervene in such a politically controversial matter).