Tomorrow’s Just Your Future Yesterday

           In the course of his most recent ruling on Speech or Debate, the Magistrate addressed whether certain specific pieces of evidence protected by the privilege and would therefore be inadmissible in Renzi’s trial.  The Magistrate, it may be recalled, has relied heavily on the proposition that discussions of future legislative acts are not protected by Speech or Debate, while evidence of past legislative acts are.  Applying this proposition, however, proves to be difficult. 

            For example, in one instance a private land exchange proponent states that he “was told by Renzi that Renzi had spoken with Congressman Richard Pombo, Chairman of the House Committee on Resources, and he had garnered Pombo’s support for [the] land exchange proposal . . . .”  One might think that this statement would be unprotected since Pombo’s “support” for the legislation is merely a statement about a future legislative act.  The Magistrate, however, found that Renzi’s act of “garnering support” from Pombo was a “past legislative act” and therefore protected.  On the other hand, Renzi’s statements about his own support for the legislation are deemed to be merely claims about future legislative acts.


            Similarly, the Magistrate found that telephone calls in which “Members discuss who they plan on voting for in upcoming election to fill House Republican leadership positions” to be protected, even though these seem to be statements about future legislative acts. 

            One gets the impression that the distinction between “past” and “future” legislative acts is rather illusory.  The determination that a piece of evidence relates solely to a future legislative act may simply mean that, for reasons the court cannot quite explain, the privilege does not apply.