A Cert-Worthy Speech or Debate Case

In United States v. Renzi, handed down yesterday, the Ninth Circuit definitively rejected the Speech or Debate arguments advanced by the former congressman. I will have more to say about this decision in coming days (for previous posts on the Renzi matter, see here, here and here).

For now I would just observe that the Ninth Circuit’s opinion expressly rejects the D.C. Circuit’s holding in United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007) that the Speech or Debate Clause embodies a non-disclosure privilege precluding law enforcement officials from obtaining or reviewing evidence of “legislative acts” in connection with an investigation of Members of Congress.  The Ninth Circuit panel stated that we “disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale.”

The Rayburn court held that a search of congressional offices would violate the Speech or Debate Clause unless there was a procedure to screen out documents of a legislative nature before the remaining materials were reviewed by prosecutors or other law enforcement officials. The Renzi court not only rejects the need for pre-screening of legislative materials before executing a search warrant or wiretap, it indicates that documentary evidence of legislative acts can be subpoenaed directly from Members of Congress. The Renzi opinion is thus much more favorable from that standpoint of prosecutors than is the Rayburn opinion.

The government unsuccessfully sought cert in the Rayburn case, arguing that the issue in that case was one of “extraordinary importance.” Now that there is a clear circuit split, the chances that the Supreme Court will grant cert are much higher. Since the law of the D.C. Circuit is much more important in this context than that of other circuits, I imagine that the government will likely support a grant of certiorari in Renzi.

There is a strong likelihood that the Supreme Court will soon be hearing the first important Speech or Debate case in thirty years.

Update: over at Volokh Conspiracy, Jonathan Adler also thinks Supreme Court review is a distinct possibility. So does Rick Hasen at Election Law Blog.


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