The Renzi Wiretap and FBI Interviews

           Last month the Magistrate Judge issued a ruling recommending denial of Renzi’s motions to suppress certain evidence, including the results of wiretaps and FBI interviews of Renzi’s legislative aides, based on the Speech or Debate Clause.  As I have suggested before, the wiretap ruling was foreshadowed by the Magistrate’s previous ruling on the Kastigar issue.  Moreover, because the district court agreed with the Magistrate’s reasoning on the Kastigar issue, it is likely that the wiretap ruling will also be upheld. 

            Both the Magistrate and the District Judge have held that the Speech or Debate privilege is one of “non-evidentiary use,” rather than of non-disclosure.  As the Magistrate notes in the latest ruling, the Supreme Court “has never extended the privilege under the Clause to protection from discovery of communications merely because they are confidential.”  In reaching this conclusion, they have explicitly disagreed with a line of cases to the contrary in the D.C. Circuit, most recently the case involving the search of former Representative Jefferson’s congressional office (United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007)). 

            From this premise it follows that the interception of Renzi’s telephone calls could not violate the Speech or Debate Clause.  While some of the intercepted conversations may have involved information protected by the Speech or Debate Clause from evidentiary use, the mere interception of the calls did not violate any privilege.  Moreover, although the Speech or Debate privilege also protects against forcing legislators (or their aides) to testify about legislative acts, the Magistrate correctly noted that “[t]here is no testimonial privilege implicated” by a wiretap. 

            Somewhat surprisingly, however, the Magistrate did not treat the FBI interviews of congressional staff in the same way.  Since these interviews are voluntary, one could argue that they do not violate the testimonial aspect of the privilege (any more than, say, a media interview would).  However, the Magistrate suggests that the Speech or Debate Clause, while not prohibiting such interviews, does bar the government from questioning congressional staff about legislative acts. 

            As a practical matter, this distinction may be of little benefit to Renzi.  The Magistrate indicates that the remedy for any inadvertent violation of the Speech or Debate Clause during interviews of Renzi’s staff would be for Renzi to move to exclude such information from the trial.  Of course, Renzi could object to the admission of this evidence under the “non-evidentiary use” aspect of the privilege anyway, so it is immaterial whether the interviews themselves violated the privilege. 

            It could be more significant, however, with regard to future FBI interviews of congressional staff.  If the Speech or Debate Clause restricts the questioning that can take place during voluntary interviews, House and Senate counsel can argue that it is improper for the FBI to conduct such interviews outside the presence of counsel who can object to questioning that violates the privilege.  Of course, the House counsel’s office has long argued that the FBI should notify it in advance before interviewing congressional staff, but the FBI has often ignored that admonition.

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