Dueling Speech or Debate Privileges in the Renzi Case

National Journal had an article last week regarding the Speech or Debate waiver issue in the Renzi case (hat tip: Rick Hasen), which we discussed awhile back.

Another interesting Speech or Debate issue is raised in this motion by the House General Counsel on behalf of Kevin Messner, a non-party witness. Messner served at different times as a staffer for then-Congressman Renzi and for Jim Kolbe, another (now former) congressman from Arizona. Messner has potentially relevant knowledge from his service for both of the former members. This is because both Renzi and Kolbe were interested and involved in the land exchange legislation that is at the heart of the charges against Renzi, and Messner worked on the legislation in the course of his service for each of them.

Both the prosecution and the defense expressed an interest in questioning Messner about his knowledge and activities regarding the land exchange legislation. The House Counsel, however, sought and obtained a protective order barring the parties “from questioning Kevin Messner at trial concerning the legislative activities of former U.S. Representative James Kolbe.”

Because Kolbe declined to waive his Speech or Debate privilege, he was entitled to object to questioning of Messner with respect to certain matters. I am not sure, though, that it is quite right to say that Kolbe has the right to object to any questioning of Messner regarding Kolbe’s legislative activities. Messner may have knowledge of Kolbe’s legislative activities during the time that Messner worked for Renzi. I don’t think Kolbe would have the right to object to Messner’s testifying about that.

Kolbe’s right to assert Speech or Debate cannot be based solely on the fact that Messner is being questioned about Kolbe’s legislative activities. If Messner had worked only for Renzi, Kolbe would have had no privilege to assert.  Kolbe’s right to assert privilege derives from the fact that the law views Messner as Kolbe’s “alter ego” with regard to the period when Messner worked for him. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Thus, Kolbe may assert the privilege when Messner is questioned about matters within the “legislative sphere” only if they occurred during Messner’s service in Kolbe’s office (because the law deems this the equivalent of questioning Kolbe himself).

Renzi is in a different position. He can object to questioning Messner regarding his service in Renzi’s office on the same alter ego theory, but, as the defendant, he can also object to introduction of evidence regarding legislative acts regardless of the source. Thus, Renzi could object to Messner’s testimony about Renzi’s legislative acts even if that testimony related solely to Messner’s service as a Kolbe staffer. I think (although I am not sure this has ever been litigated) Renzi could even object to Messner’s testimony if it related solely to Kolbe’s legislative acts, and arose solely from Messner’s work for Kolbe.

If this is correct, there should be no question Messner could be asked to which Kolbe alone would have the right to object. However, as House Counsel points out, Kolbe has an independent right to assert the Speech or Debate privilege, including to questions that Renzi might want to ask of Messner.

To protect Kolbe’s privilege, House Counsel not only obtained a protective order, but secured permission from the judge to sit in the well of the court during Messner’s testimony and raise any Speech or Debate objections on a question-by-question basis. This is a fairly novel procedure that, in my experience, many judges would be loath to permit. Theoretically, if the House Counsel objected to a question which the judge did not believe was covered by the privilege, House Counsel (on behalf of Kolbe) could take an immediate appeal from the judge’s ruling, potentially causing a delay in the trial.

I suspect that House Counsel would take such a step only in extraordinary circumstances. For one thing, it would make it less likely that judges would be willing to allow this procedure in the future.