The Renzi case involves, broadly speaking, three distinct types of Speech or Debate issues. The first involves the question of whether the government violated the Speech or Debate Clause when it wiretapped Renzi’s cell phone. The Magistrate appears to have largely rejected that theory in an order issued several weeks ago.
The second issue involves whether the activities for which Renzi was indicted were themselves protected by Speech or Debate. Principally, these activities involved Renzi’s negotiations and discussions with private parties about the land exchange legislation that lies at the center of the case. Renzi argues that these activities are protected as part of the legislative process, while the government contends that these activities only involve communications about future legislative activity and are therefore unprotected.
The third issue concerns whether the grand jury relied on Speech or Debate information in deciding to indict Renzi. In other words, even if the activities for which Renzi was indicted are not protected, the indictment could be dismissed on the grounds that the grand jury relied on privileged evidence to make its indictment decision. (Renzi argues that there were materials presented to the grand jury that clearly refer to past legislative acts and therefore, even under the government’s theory, are protected under Speech or Debate.). In the Magistrate’s previous order, he indicated that dismissal on this ground would be warranted only if it were shown that “privileged materials were essential to the grand jury’s decision to indict.”
The Magistrate has now issued an order requiring the government to disclose to Renzi’s defense team portions of the grand jury transcript and the instructions given to the grand jury regarding the Speech or Debate Clause. The order finds that Renzi “has sufficiently demonstrated a particularized need to review the grand jury transcripts because grounds may exist to dismiss the indictment because protected material may have been presented to the grand jury.” The judge also set oral arguments for April 30 and May 1 on various motions, including Renzi’s motion to dismiss the indictment on Speech or Debate grounds.
It is unclear how much should be read into this new order. If the Magistrate agrees with Renzi regarding the second issue (or is leaning in that direction), disclosure of additional grand jury materials would seem to be irrelevant because it is clear that the indictment on its face charges Renzi with activities that are protected under Renzi’s theory. On the other hand, if the Magistrate sides with the government on this issue, it seems unlikely (though not impossible) that Renzi could prove that other materials presented to the grand jury were “essential” to its decision. It may be that the Magistrate is merely developing a full record for the district court’s consideration. Still this shows that the Magistrate understands the seriousness of the Speech or Debate questions presented in the case.
One thing seems certain. The Speech or Debate litigation in this case is going to drag on for quite a while. It also seems unlikely that Renzi’s trial, which was originally scheduled for this spring, will happen anytime soon.