Category: Speech or Debate

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Congressional Release of Classified Information and the Speech or Debate Clause

At Foreign Policy, Professor Bruce Ackerman asks “should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?” Ackerman notes that under the Speech or Debate Clause, members of Congress “cannot be prosecuted for reading classified material into the public record– and it is up to them, and them alone, to decide what is worth talking about.” He therefore proposes that individual members of Congress who  oppose the surveillance program, such as Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, disclose such classified information regarding the surveillance program as they believe the public needs to know. Ackerman dramatically concludes “[t]he moment of truth is now.”

Ackerman is certainly correct that the Speech or Debate Clause immunizes members of Congress from prosecution for disclosing classified information on the floor or in committee hearings. See Gravel v. U.S., 408 U.S. 606 (1972). As he also recognizes, however, members are not protected against congressional discipline, up to and including expulsion, for revealing classified information without permission.

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

Although the congressional procedures for releasing classified information have rarely (if ever) been used, there is nothing preventing Wyden or a like-minded member from seeking to use them now. Certainly such an attempt must be made before there could be any justification for a unilateral disclosure. If there is a moment for unilateral disclosure, in other words, it is not now.

It should be noted, however that SSCI’s draconian interpretation of its secrecy rules might deter Wyden (or others) from publicly disclosing even the fact of an attempt to invoke section 8 of S. Res. 400. This could prevent him from building needed public support for his efforts. Ackerman and others concerned with excessive government secrecy might more profitably focus on that issue rather than advocate for unilateral disclosure that could undermine the entire congressional system for handling classified information.

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“We are pleased that the jury acquitted Mr. Renzi on 15 counts”

Former Congressman Rick Renzi’s attorney, who is responsible for the quote above, is obviously a glass-half-full type of person. As it happens, Renzi was also convicted on the other 17 of the 32 counts against him (so the glass was not quite half full). You can read the verdict form here.

The linked Washington Post story indicates that Renzi intends to appeal. I am sure that there will be Speech or Debate issues presented on appeal, although some of Renzi’s potential arguments may be foreclosed or made more difficult by the prior Ninth Circuit ruling in his case. It should also be noted that some of the counts on which he was convicted (e.g., Counts 28-30) involve insurance fraud/false statements that appear to be unrelated to his legislative activities or official duties. Therefore, Renzi will not be able to argue for a complete reversal of the verdict based on Speech or Debate alone.

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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.

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Renzi trial (chock full of Speech or Debate goodness) begins

The corruption trial of former congressman Rick Renzi began this week in federal court in Arizona. A number of Speech or Debate issues can be expected to arise during the trial. The Bipartisan Legal Advisory Group (affectionately known as BLAG) has already filed this amicus brief addressing the question of whether Renzi would waive the Speech or Debate privilege by introducing in his defense evidence of certain legislative activities, such as the fact that a particular bill (referred to as the Resolution Copper Company bill) was introduced in the House and that another bill (referred to as the Preserve Petrified Forest Land Investors bill) was never introduced.

BLAG asserts (correctly, as far as I know) that no case has ever found a waiver of the Speech or Debate privilege. It contends that no such waiver can take place unless the privilege-holder (in this case Renzi) makes an “explicit and unequivocal renunciation,” as the Supreme Court put it in U.S v. Helstoski, 442 U.S. 477, 491 (1979). Renzi’s introduction of evidence regarding legislative activities (which would violate the privilege if introduced by the government) does not amount to such a renunciation, according to BLAG. Thus the government would not be entitled to introduce privileged evidence itself, even if directly responsive to the evidence introduced by Renzi.

Needless to say, the government will argue that this is a tad unfair, but BLAG maintains that the court can address this problem by exercising its discretion under Federal Rule of Evidence 403. It suggests that the court may choose to exclude the evidence offered by Renzi or condition its admission on Renzi’s waiver of Speech or Debate with regard to certain responsive evidence (for example, evidence that would be within the scope of cross-examination).

Another potential issue in the Renzi case relates to a subpoena for documents that was received by the House Intelligence Committee (I don’t know which side served it). According to a notice under House Rule VIII filed by the committee on March 12, 2013, the committee intends to move to quash the subpoena as contrary to the rights and privileges of the House. The docket sheet does not reflect such a motion, though, so I assume that the issue has either been resolved or put off until a future time.




	


	





		

		
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Senator Stevens and the Strange Evolution of Speech or Debate
	


	
	

		
Yesterday was the release date for Henry Schuelke’s report on misconduct in the prosecution of the late Senator Ted Stevens. The report, which I have only skimmed, is available here.  In addition, Judge Sullivan’s opinion ordering the public release of the report may be read here. Judge Sullivan summarizes the case for release by noting:


Mr. Schuelke’s Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate.


One might think that the Speech or Debate Clause would have a role in preventing this type of prosecution, but, for reasons I discussed at the time, it was of little use to Senator Stevens.


On the other hand, in another Speech or Debate Clause case, currently pending in the same court, the defendant has proved to be much more fortunate. Howard v. Office of the Chief Administrative Officer is an employment discrimination case brought by a former employee of the CAO’s office, who alleged that she was discriminated against based on race and retaliated against for engaging in activity protected under the Congressional Accountability Act.


The question in the employment discrimination case is simply whether Howard was fired for not doing her job, as the CAO contends, or for the illegal reasons alleged by the employee. But because Howard’s job involved “legislative activities” (she prepared budget analyses that the CAO would submit to the Appropriations Committee for use in preparing the legislative appropriations bill), Judge Kennedy held that a court could not inquire into the reasons for her termination without violating the Speech or Debate Clause. Although the court acknowledged Howard’s somewhat tangential relationship to the legislative process, it found “there is not a sufficient basis in precedent to conclude that a task is non-legislative merely because it is performed by staff who are several steps removed from the Members themselves.”


If the purpose of Speech or Debate is to protect “the independence of the legislative branch from intimidation and interference,” as Judge Kennedy wrote, one would think it much more relevant to the Stevens prosecution than to the Howard case. But the courts have struggled to draw the line between “legislative activities” and “non-legislative activities” without giving much thought, it would seem, to whether the results make any sense.


As the court remarked in Jewish War Veterans, Inc. v. Gates, 506 F.Supp.2d 30, 57 (D.D.C. 2007), “[i]s hard enough to draw the crucial distinction between legislative and non-legislative acts, despite the existence of four decades of Supreme Court and D.C. Circuit case law to provide guidance.” True enough, though perhaps more true if “despite” were replaced by “due to.”

	


	





		

		
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The Use and Abuse of Legislative Privilege- Canadian Edition
	


	
	

		
The Speaker of the Canadian Parliament (who is 32 years old!) issued this ruling last week in response to a point of order. The issue concerned the action of a Government Minister who had “tabled a document” with the House detailing a political donation made by a particular named individual. The point of order was whether this action invaded the privacy of the named individual and would “put the chill of fear into public servants and individuals in Canada donating to a political party that a minister will use that against them.”


The Speaker acknowledged “that ministers enjoy considerable latitude and may, at their discretion, table a wide range of documents in the House.” However, he also quoted a predecessor’s admonition regarding the “awesome and far-reaching privilege” of freedom of speech enjoyed by members of the House:


Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place…. All Hon. members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.


The Speaker also cited the admonition from the House of Commons Procedure and Practice, which states “Members are discouraged from referring by name to persons who are not Members of Parliament and who do not enjoy parliamentary immunity, except in extraordinary circumstances when the national interest calls for this.”


He concluded by reminding members “to use great care when referring to or singling out an individual who does not have a voice here in this House and to avoid circumstances when, by such reference, an individual could have his or her reputation damaged without having the opportunity to respond.”


A word to the wise.

	


	





		

		
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Congressional Regulation of the Press Galleries
	


	
	

		
As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you were wondering what authority the Press Gallery has, and where it comes from, here is a brief summary.


 Continue reading “Congressional Regulation of the Press Galleries”

	


	





		

		
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After Only 499 Years, Have We Forgotten Richard Strode?
	


	
	

		
Warning: If you are not deep in the weeds of Speech or Debate, this post may not be for you.


With regard to the question of whether the Speech or Debate Clause prohibits former Congressman Renzi’s prosecution in connection with his role in developing certain land exchange legislation, one English precedent stands out as particularly significant. As far as I recall, it has not been discussed in any of the briefs thus far, so it is worth noting as the petition for certiorari is prepared.


The case, which will be celebrating its half-a-millennium anniversary next year, is described thusly by the Supreme Court in footnote 13 of United States v. Johnson, 383 U.S. 169 (1966):


See, e. g., Strode’s Case, one of the earliest and most important English cases dealing with the privilege. In 1512, Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring “That suits, accusements, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.”


Strode’s case shows that a Member of Congress cannot be prosecuted for introducing or supporting a bill, even if he does so for corrupt reasons.


No doubt the prosecution would attempt to distinguish the Renzi case on the grounds that Renzi is not being prosecuted for introducing or supporting land exchange legislation, but for “extorting” private parties by refusing to support land exchange legislation unless it included property owned by his business associate. But this narrow reading of Strode’s case would seem to be inconsistent with Parliament’s broad declaration.


Could Strode have been prosecuted for “conspiring” with private interests in order to draft or introduce the tin mining legislation? Could he have been prosecuted if it were alleged that merely drafting, introducing or announcing his support for the tin mining legislation was a corrupt act? Surely the point of Parliament’s declaration was that Strode was free to draft, introduce and support whatever bill he liked, regardless of his alleged motives for doing so.


If I were Reid Weingarten, I would argue that the Justice Department is trying to overturn 500 years (by the time the case actually reaches the Supreme Court) of precedent on parliamentary independence.

	


	





		

		
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A Point of Order Final Exam
	


	
	

		
Consider the following facts:


Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under the Clinton administration to sabotage Iran’s nuclear program by giving flawed blueprints for key components to a Russian nuclear scientist who had defected. The idea was that the Russian scientist, who was covertly working for the CIA, would feed the flawed designs to the Iranians. But according to the book, the CIA’s efforts went awry when the scientist got nervous and instead tipped off the Iranians to the flaws in the designs.”


The operation, codenamed “Merlin,” was sort of like a nuclear “Fast and Furious.”


Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.


 Continue reading “A Point of Order Final Exam”

	


	





		

		
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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.