In an order issued earlier this month, U.S. District Judge David Bury of the U.S. District Court of Arizona rejected some of the key Speech or Debate claims made by former Congressman Rick Renzi. This ruling means that Renzi will almost certainly be unsuccessful, at the district court level, in his attempts to suppress evidence from wiretaps of his cell phone. Renzi has already signaled his intention to appeal this ruling to the Ninth Circuit.
The key to Judge Bury’s decision was his view that the Speech or Debate privilege is one of non-use, not non-disclosure. The court disagreed with the D.C. Circuit’s opinion in United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), which held that the Justice Department violated the Speech or Debate privilege when it executed a search warrant on a congressional office without first allowing the Congressman an opportunity to protect legislative materials from seizure.
Judge Bury described Rayburn as “an example of hard cases making bad law.” Carried to its “logical conclusion,” Rayburn “would require advance notice of any search of a Congressman’s property, including property outside his congressional office, such as his home or car, and that he be allowed to remove any material he deems to be covered by the legislative privilege prior to a search. If mere exposure by the Executive Branch violates the privilege agents could not conduct voluntary interviews of congressional staffers, who wish to expose criminal acts involving legislative activities or conduct surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.” (emphasis added). Such results would be contrary to the purpose of the Speech or Debate Clause, which was designed “not to create super-citizens, immune from criminal responsibility and susceptible to corruption.”
Although Bury’s ruling directly applies only one of Renzi’s six pending Speech or Debate motions, his reasoning seems to require rejection of two of the other motions, which are also based on a “non-disclosure” theory (these motions request suppression of evidence obtained by wiretap, search warrant and consensual interview of staff). However, the ruling will not necessarily affect Renzi’s remaining motions, which seek dismissal of the case based on alleged use of privileged information before the grand jury or in the indictment itself.
Renzi has asked for reconsideration of the ruling or, in the alternative, that it be held in abeyance until resolution of the other Speech or Debate motions. Renzi suggests that however the Speech or Debate motions are resolved, there is likely to be a pre-trial appeal by either the prosecution or the defense (or both), and argues that all of the Speech or Debate issues should be consolidated into a single appeal in order to conserve judicial resources.