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