An Alternative to Speech or Debate

My last three posts (see here, here and here) suggest that a nondisclosure privilege would be an awkward fit with the text, purpose and history of the Speech or Debate Clause. A final consideration that militates against a nondisclosure privilege is the absolute nature of the Clause. If the Clause protects against disclosure of legislative information, it stands as an absolute bar to compelled disclosure of such information, no matter how relevant and admissible it might be. (Note that even the most “privileged” Speech or Debate materials may be admissible in evidence against a non-legislative party).

In rejecting the nondisclosure privilege asserted by former congressman Renzi, the Ninth Circuit stressed the absolute nature of the privilege. The court specifically pointed out that any nondisclosure privilege would prohibit review of legislative documents by the judicial branch just as much as by the executive. See Renzi, slip op. at 8552 (“If the Clause applies, it applies absolutely- there is no balancing of interests nor any lessening of the protection afforded depending on the branch that perpetrates the intrusion.”). Among other things, this would make it impossible for the courts to resolve privilege claims without first violating the nondisclosure privilege.

For all of these reasons I conclude that the Renzi court was correct in rejecting a nondisclosure privilege under the Speech or Debate Clause. I reach this conclusion reluctantly, however, because some legislative information should have protection from disclosure. Certain legislative documents, such as executive session materials and confidential ethics opinions, clearly warrant protection. There is a strong case that other legislative material, such as committee investigatory files, deliberative legislative documents, and confidential constituent correspondence, merit at least qualified protection.

There seems to be no reason why the scope of protection should follow the contours of the Speech or Debate Clause. The executive and judicial branches, neither of which is covered by Speech or Debate, enjoy protections from disclosure for certain types of confidential communications and other information.

The courts have ample power under the Federal Rules of Evidence to develop the contours of a legislative privilege outside of the Speech or Debate Clause, although they have not done so to date. The possibility is suggested by the Supreme Court’s decision in United States v. Gravel, 408 U.S. 606 (1972) which involved a grand jury investigation of the illegal leaking and publication of the Pentagon Papers. Referring to the possibility that Rodberg, a congressional aide, might be questioned about the activities of non-legislative actors who were unprotected by Speech or Debate, the Court stated: “As for inquiry of Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.” Id. at 629.

The inference is unmistakable that the district court should use its authority to prohibit inquiry into congressional activities that, although not protected from disclosure by Speech or Debate, were “no proper concern” of the other branches. A similar approach could carve out categories of congressional documents that are appropriately privileged from compelled production.

I don’t know whether the Court, should it grant cert in Renzi, would have the opportunity to consider if there is a legislative nondisclosure privilege outside of Speech or Debate. But at least it should not foreclose the possibility.