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.

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