On Feb. 13, the Magistrate Judge in the Renzi case issued a significant order denying Renzi’s motion to (a) hold a Kastigar-type hearing to determine whether the Government used protected Speech or Debate material during the course of Renzi’s prosecution and (b) disqualify the prosecution team because it has been exposed to such protected material.
First, the Magistrate finds that “Renzi is mistaken in his argument that the [Speech or Debate] privilege extends to requiring the prosecution to demonstrate, in a Kastigar hearing, that its case against Renzi is based upon evidence completely independent of the evidence it obtained in violation of the Speech or Debate Clause.” [note: Kastigar hearings are held when a defendant has received immunity to testify after asserting the Fifth Amendment, and the Government must demonstrate that it made neither direct nor derivative use of the immunized testimony against the defendant]. The Magistrate points out that much protected Speech or Debate information is public in nature, and it would make no sense to prohibit the Government from reviewing such information, so long as it does not use it against a Member of Congress. Moreover, even if some Speech or Debate material is used before the grand jury, this does not require dismissal of the indictment unless the defendant can demonstrate that the “privileged materials were essential to the grand jury’s decision to indict.”
Second, and more importantly, the Magistrate rejects Renzi’s argument that the prosecution team be disqualified for exposure to protected Speech or Debate information, particularly information obtained from the wiretap on Renzi’s cell phone. Although the court does not rule directly on the legality of the wiretap, its reasoning clearly rejects the theory which Renzi (and the House) advanced on that issue. On the key question of whether the Speech or Debate privilege is one of non-disclosure, the court agrees with the Third Circuit (and disagrees with the D.C. Circuit) that it is not. Moreover, the court expressly concurs with Judge Henderson’s separate opinion in the Rayburn case that the “execution of a search warrant on a congressional office—with its unavoidable but minimal exposure to records of legislative acts—does not constitute questioning within the meaning of the Speech or Debate Clause.” Therefore, it appears that the wiretap, involving neither evidentiary use nor questioning, but merely disclosure of legislative information, could not have violated the privilege.
This is merely the first round of the case. Renzi will undoubtedly appeal to the district court judge. This case continues to set up as the most important Speech or Debate case in a generation (not only on the wiretap issue, but on the question of whether the indictment on its face violates the Speech or Debate Clause), one that seems increasingly likely to wind up in the Supreme Court.