Former Congressman William Jefferson is seeking a writ of certiorari on the question of “whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.” Jefferson contends that the Fourth Circuit erred in refusing to consider whether Speech or Debate privileged evidence was presented to the grand jury and that its decision conflicts with the law of other circuits, including the D.C. Circuit, the Third Circuit and the Eleventh Circuit.
In Jefferson’s case, the district court conducted a review of all the allegedly privileged evidence presented to the grand jury and concluded that no violation of the Speech or Debate Clause had occurred. The most problematic instance involved a former staffer whose testimony made reference to Jefferson’s role in passing a particular piece of legislation. However, the district court found that this reference was not material or relevant to the allegations of the indictment and, moreover, was volunteered by the witness without prompting. Therefore, the judge refused to dismiss the indictment.
Jefferson appealed, and the Fourth Circuit affirmed. The panel stated that “[u]nder [Jefferson’s] interpretation of the Clause, any mention of Speech or Debate Clause material in a grand jury proceeding mandates the dismissal of all charged offenses which relate to such evidence.” The court, however, rejected this view of the law. Instead, the court concluded that under Fourth Circuit precedent “a grand jury will not be deemed biased solely because it heard some evidence relating to congressional speech.”
This aspect of the Fourth Circuit’s decision does not appear to be in conflict with any other circuit. No court has held that an incidental reference to legislative activity before the grand jury requires dismissal of the indictment. The Eleventh Circuit, for example, has stated that “[i]f reference to a legislative act is irrelevant to the decision to indict, the improper reference has not subjected the member to criminal liability [and the] case can proceed to trial with the improper references expunged.” U.S. v. Swindall, 971 F.2d 1531, 1548 (11th Cir. 1992). Other courts have suggested that dismissal is required only if the privileged evidence was a “factor” or a “substantial factor” in the grand jury’s decision to indict. Just last week in the Renzi case, the Magistrate Judge suggested that the standard for dismissing an indictment was whether the “privileged materials were essential to the grand jury’s decision to indict.”
Jefferson bases his cert petition on language in the Fourth Circuit opinion suggesting the court is barred from ever going behind a facially valid indictment to assess whether the grand jury relied on Speech or Debate material. In a footnote, however, the court leaves open the possibility that it could go behind the indictment under some circumstances, such as where there were a pervasive violation of the Speech or Debate Clause before a grand jury. Moreover, although the Fourth Circuit indicates that the trial judge performed a more “comprehensive review” of the grand jury transcript than was required by precedent, it also states that “[u]nder the facts of this case . . . the [trial] court’s decision to act as it did in assessing Jefferson’s Speech or Debate Clause Claim was within its discretion and entirely appropriate.” At the end of the day, therefore, Jefferson’s claim was rejected because the trial court properly found that the grand jury did not consider any Speech or Debate material, rather than because of any distinctive legal standard followed in the Fourth Circuit.
In short, while there are some important Speech or Debate issues percolating in the lower courts, it seems unlikely that the Supreme Court will take up this particular issue.