In a recent series of opinion/orders, the federal district court (Judge Bury) denied former Congressman Renzi’s various Speech or Debate claims, upholding the Magistrate’s previous rulings on those subjects. (see here, here and here). The judge, however, recognized that the Speech or Debate claims are likely to be the subject of an interlocutory appeal, thus delaying the trial with respect to the land exchange charges against Renzi and one of his co-defendants. There are also a number of insurance fraud counts against Renzi and various co-defendants. Because these charges do not involve Speech or Debate or other congressional privileges, I haven’t paid too much attention to them. It is worth noting, however, that these counts will go forward separately from the land exchange counts.
As expected, the court rejected Renzi’s arguments for suppressing the results of the FBI wiretap. The court also refused to hold a Kastigar hearing to determine whether prosecution evidence was either protected by the Speech or Debate privilege or derived from privileged evidence. The court reiterated its view that the Speech or Debate Clause is one of non-use, not nondisclosure. It suggested that the Clause places no limits on the executive branch’s authority to investigate criminal conduct, but merely prevents the prosecution from introducing privileged evidence against a member of congress. Finally, the court firmly rejected the D.C. Circuit’s opinion in United States v. Rayburn House Office Building, agreeing with Judge Henderson that the Rayburn majority’s reasoning would inappropriately jeopardize law enforcement tools such as search warrants, wiretaps and voluntary interviews of congressional staffers.
With respect to Renzi’s motion to dismiss the indictment on Speech or Debate, the court found that the privilege does not apply to Renzi’s negotiations and other communications with private landowners regarding the development of land exchange legislation. According to the court, such communications “were not an integral part of any deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed land exchange information.”
Like the Magistrate, on whom it heavily relied, the court’s reasons for reaching this conclusion are obscure. It states that “it is not enough that a private constituent comes to a member of Congress with proposed legislation or to discuss proposed legislation, or to ask the congressman or woman for support of certain legislation.” This, according to the court, would merely involve unprotected discussion of a future legislative act. The “legislative acts protected by the Speech or Debate Clause occur subsequent to such meetings and discussions . . . when in fact the congressman acts to promote, support and pass the land exchange legislation in either House or undertakes an act that is an integral part of such an endeavor.”
The court does not deny that negotiations with private landowners are sometimes protected. In fact, it states that “after the introduction of the land exchange legislation, negotiations with land exchange proponents, investigations and fact finding conducted for the purposes of preparing for hearings or amending the legislation or preparing speeches, or preparing to vote, etc., will clearly be protected.”
Why distinguish between negotiations conducted before and those conducted after the introduction of legislation? The court doesn’t say. Since both types of negotiations would seem to involve discussions of future legislative acts, it is hard to see why they would be treated differently on that basis. To make things more confusing, the court expressly denies that it is making the introduction of legislation a prerequisite for the application of Speech or Debate.
The court itself appears to have difficulty applying the line it has drawn. In a footnote, the court declares that the “definition of a legislative act does not reach activities such as political wrangling over which congressional member should sponsor the land exchange legislation, Renzi’s insistence that land exchange proponents offer to build a detox center as part of their project, or that they obtain a letter of commendation to him from the Nature Conservatory (sic).” Yet elsewhere in the opinion the court approves the Magistrate’s decision to grant Speech or Debate protection to documents that concern precisely those subjects. See, e.g., Exhibit 15 (email concerning Renzi’s request for a letter from the Nature Conservancy); Exhibit 16 (same); and Exhibit 29 (memo explaining how “political maneuvering” was delaying introduction of land exchange legislation).
Perhaps the court of appeals will have a more coherent approach to the Speech or Debate Clause.