Category: Speech or Debate

In United States v. Renzi, the Ninth Circuit rejected the former congressman’s claim that the Speech or Debate Clause prohibits charging him with having demanded, as a condition of supporting land exchange legislation that two private companies were seeking, that those companies include in the proposed legislation land owned by Sandlin, a Renzi associate (who, unbeknownst to the companies, owed Renzi a substantial sum of money).

The court largely based its holding on United States v. Brewster, 408 U.S. 501 (1972), in which the Supreme Court held that bribery was not protected by Speech or Debate. Specifically, the Brewster Court emphasized that bribery involves the acceptance of money in exchange for the promise to perform a future legislative act (i.e., to sponsor or facilitate the bill that the bribe-giver is attempting to get enacted). The Court reasoned that the there was a distinction between performing a legislative act and promising to perform a legislative act in the future. Therefore, it concluded that the Clause would not prohibit showing that a Member of Congress had taken money in exchange for a promise to support future legislation.

The Ninth Circuit characterizes Renzi as being on all fours with Brewster.  Renzi promised to perform a future legislative act, i.e., introduce and support land exchange legislation, if the companies would pay money to a third person with whom Renzi had a business relationship. Except for the indirect means of payment, the court concludes that Renzi’s actions were exactly the same as those involved in Brewster. And the court finds no legal relevance to the fact that Renzi’s scheme was “more refined, more sophisticated,” i.e., that “[r]ather than selling his office for cash, he was wise enough to at least attempt to conceal his crime by using more indirect means of payment.”

The problem is that the Ninth Circuit’s position is premised on a subtle but significant mischaracterization of the charges against Renzi. The court describes the allegations against Renzi (which it doesn’t quote verbatim) as if the congressman had demanded that the private companies purchase the Sandlin property in as a condition of his support of legislation, apart from his insistence that the property be included in the legislation. But the indictment actually alleges that Renzi “insisted that the Sandlin Property must be included in the land exchange legislation if he was to be a sponsor.”

It is true that the indictment clearly lays out that Renzi was aware that the companies would have to purchase the property in order to include it in the legislation and one might infer, though the indictment does not so allege, that Renzi and Sandlin conspired to ensure that the companies had to purchase the property, rather than simply obtaining an option to purchase, in order to fulfill Renzi’s terms. But on its face the indictment can be sustained only if the jury finds that Renzi had an improper motive for insisting that the land exchange legislation be crafted to include the Sandlin property. This makes Renzi’s case distinguishable from Brewster, where the legislator’s motive for crafting, supporting or voting for the legislation was not at issue.

Thus, the Renzi case would seem to pose the question of whether negotiating over the terms of a particular piece of legislation is itself outside the legislative process because it relates only to “future” legislative acts. This is not a question resolved in Brewster and the Ninth Circuit’s position marks a significant expansion of Brewster’s rationale. Indeed, if the Renzi court is correct, there would seem to be very little left of the Speech or Debate privilege outside the corners of formal legislative proceedings, such as committee hearings and debates on the floor.

Finally, it should be noted that this Speech or Debate issue is not the one on which there is a circuit split (I will discuss the latter in a separate post). Nevertheless, it is an important issue that the Supreme Court ought to resolve, particularly if it is going to hear the case anyway.

This is the question raised by Clemens’ opposition to the House Committee on Oversight and Government (COGR) motion to quash his subpoena for documents. Relying primarily on statements by minority members of COGR at the time, Clemens argues that the 2008 hearing at which he testified was not designed to consider or further any legislation. Instead, the objective was simply to find out if Clemens was lying when he denied using steroids, as claimed by the Mitchell Report commissioned by Major League Baseball. This, some COGR members asserted, amounted to a “show trial,” “gotcha games” and a “Roman circus.”

As I have discussed before, the connection between the Clemens hearing and any ostensible legislative purpose is a tenuous one. Although both COGR and the Justice Department strain mightily to do so, neither can show that the Clemens hearing led to any legislation; more importantly, they cannot produce any evidence that any member of COGR believed at the time that the Clemens hearing might have an influence on potential legislation.

Despite this, I doubt the court will accept Clemens’ invitation to overrule COGR’s Speech or Debate privilege on the ground that the hearing was outside the “legitimate legislative sphere.”  In the first place, the court will probably not give much weight to the comments of dissenting members– as COGR aptly puts it, “legislative democracy is a rough and tumble business that very frequently is characterized by boisterous debate and dissension.”

Second, the court will be reluctant to challenge the committee’s motivation for holding the Clemens hearing. Indeed, as COGR points out, the Supreme Court in Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508-09 (1975), stated that “in determining the legitimacy of a congressional activity we do not look to the motives alleged to have prompted it.” Of course, this does not mean that no congressional activity may be challenged– but it does suggest that the court should consider whether there was any possible legitimate reason for holding the Clemens hearing.

Under this forgiving standard, I think the hearing (barely) passes muster. It is conceivable, as suggested by COGR’s lawyers, that the committee wished to assess the accuracy and credibility of the Mitchell Report in part for the purposes of evaluating how well MLB was doing in investigating itself.  This in turn might have influenced the decision whether further legislative action was needed.  Admittedly, a lot of hypotheticals are involved, but the court could reasonably conclude that there was some legislative connection to the hearing.

Perhaps more importantly, the Justice Department notes that Clemens’ attack on the hearing really goes to fundamental questions that must be resolved by the jury- namely the “materiality” of Clemens’ alleged false statements and whether COGR is a “competent tribunal.”  If the court resolves these questions now, the proper remedy would be to dismiss the case, rather than to enforce the subpoena. Rather than deciding the issue on a sparse record, the court should wait at least until the prosecution has put on its case in chief.

For this reason, I think Clemens would be better served by concentrating on his need for the documents sought, rather than on the question of privilege.  Even if the materials in question are protected by Speech or Debate, the withholding of these documents, under the proper circumstances, would violate Clemens’ due process rights.  This point is implicitly conceded by both the Justice Department and COGR, with the latter expressly noting that the remedy for a due process violation would be to suppress evidence or dismiss the indictment, rather than to enforce the subpoena.

None of the parties have offered much in the way of a test to determine when material withheld by a committee is so essential as to violate the defendant’s due process rights.  Presumably the burden would be on Clemens to explain why the material withheld is critical.  It seems to me that he has failed to do that here. His strongest argument, IMHO, would be that he needs discovery with regard to materiality– but he has not made this argument. Instead, he appears to be fishing for evidence that could be useful for impeachment purposes.  

Accordingly, I think that Judge Walton should grant the motion to quash, but permit Clemens to make a more specific showing as to why he needs access to COGR documents. If he is able to make such a showing, the court should request that COGR provide the documents for in camera review and, if the committee refuses, consider granting other relief.

The Washington Post has a front page story today on the Speech or Debate Clause, and how it has been used to block certain investigations over the past few years.  The story touches on a number of criminal investigations of Members of Congress over the past few years.  Of particular interest, it discusses the legal wrangling over the wiretapping of former Representative Rick Renzi.  Melanie Sloan of CREW characterizes the House’s position in Renzi case as “basically” that “if you are a member of Congress, you cannot be wiretapped under any circumstances.”

As I discussed here, (“Does BLAG believe that Members of Congress are Immune from Federal Wiretaps”), Sloan appears to be right about this.  Irv Nathan, the former House Counsel, is cited (though not quoted) as responding that “prosecutors can use evidence collected through wiretaps or other means but must exclude anything related to legislative actions.”  This makes it sounds as if wiretaps are permissible so long as prosecutors do not use portions of conversations that involve legislative matters.  But the House’s position, as I understand it, is that wiretaps may not even intercept the privileged portions of conversations, and that prosecutors are prohibited from reviewing (or having reviewed) the transcripts from wiretaps to determine which portions may be privileged.  This makes the House’s position very close to a de facto ban on wiretapping of Members (or their staffs).

Incidentally, congratulations to Kerry Kircher, the long-time House Deputy General Counsel, whom Speaker Boehner has promoted to General Counsel.

Devotees of the Speech or Debate Clause will want to check out Jack Raffetto’s note, “Balancing the Legislative Shield: The Scope of the Speech or Debate Clause,” which appears in the Spring 2010 issue of the Catholic University Law Review.  Focusing on the D.C. Circuit’s decision in In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) (quashing grand jury subpoenas seeking former Representative Tom Feeney’s communications with the ethics committee), Raffetto argues that Speech or Debate protection for testimony or information submitted to a congressional ethics committee should turn, not on whether ethics case relates to a personal or official matter, but whether the case or investigation for which the subpoena was issued relates to a matter outside the member’s legislative capacity. 

As far as I know, this is the first law review article not written by me which cites Point of Order.

           In the course of his most recent ruling on Speech or Debate, the Magistrate addressed whether certain specific pieces of evidence protected by the privilege and would therefore be inadmissible in Renzi’s trial.  The Magistrate, it may be recalled, has relied heavily on the proposition that discussions of future legislative acts are not protected by Speech or Debate, while evidence of past legislative acts are.  Applying this proposition, however, proves to be difficult. 

            For example, in one instance a private land exchange proponent states that he “was told by Renzi that Renzi had spoken with Congressman Richard Pombo, Chairman of the House Committee on Resources, and he had garnered Pombo’s support for [the] land exchange proposal . . . .”  One might think that this statement would be unprotected since Pombo’s “support” for the legislation is merely a statement about a future legislative act.  The Magistrate, however, found that Renzi’s act of “garnering support” from Pombo was a “past legislative act” and therefore protected.  On the other hand, Renzi’s statements about his own support for the legislation are deemed to be merely claims about future legislative acts.

            Similarly, the Magistrate found that telephone calls in which “Members discuss who they plan on voting for in upcoming election to fill House Republican leadership positions” to be protected, even though these seem to be statements about future legislative acts. 

            One gets the impression that the distinction between “past” and “future” legislative acts is rather illusory.  The determination that a piece of evidence relates solely to a future legislative act may simply mean that, for reasons the court cannot quite explain, the privilege does not apply.  

           Last month the Magistrate Judge issued a ruling recommending denial of Renzi’s motions to suppress certain evidence, including the results of wiretaps and FBI interviews of Renzi’s legislative aides, based on the Speech or Debate Clause.  As I have suggested before, the wiretap ruling was foreshadowed by the Magistrate’s previous ruling on the Kastigar issue.  Moreover, because the district court agreed with the Magistrate’s reasoning on the Kastigar issue, it is likely that the wiretap ruling will also be upheld. 

            Both the Magistrate and the District Judge have held that the Speech or Debate privilege is one of “non-evidentiary use,” rather than of non-disclosure.  As the Magistrate notes in the latest ruling, the Supreme Court “has never extended the privilege under the Clause to protection from discovery of communications merely because they are confidential.”  In reaching this conclusion, they have explicitly disagreed with a line of cases to the contrary in the D.C. Circuit, most recently the case involving the search of former Representative Jefferson’s congressional office (United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007)). 

            From this premise it follows that the interception of Renzi’s telephone calls could not violate the Speech or Debate Clause.  While some of the intercepted conversations may have involved information protected by the Speech or Debate Clause from evidentiary use, the mere interception of the calls did not violate any privilege.  Moreover, although the Speech or Debate privilege also protects against forcing legislators (or their aides) to testify about legislative acts, the Magistrate correctly noted that “[t]here is no testimonial privilege implicated” by a wiretap. 

            Somewhat surprisingly, however, the Magistrate did not treat the FBI interviews of congressional staff in the same way.  Since these interviews are voluntary, one could argue that they do not violate the testimonial aspect of the privilege (any more than, say, a media interview would).  However, the Magistrate suggests that the Speech or Debate Clause, while not prohibiting such interviews, does bar the government from questioning congressional staff about legislative acts. 

            As a practical matter, this distinction may be of little benefit to Renzi.  The Magistrate indicates that the remedy for any inadvertent violation of the Speech or Debate Clause during interviews of Renzi’s staff would be for Renzi to move to exclude such information from the trial.  Of course, Renzi could object to the admission of this evidence under the “non-evidentiary use” aspect of the privilege anyway, so it is immaterial whether the interviews themselves violated the privilege. 

            It could be more significant, however, with regard to future FBI interviews of congressional staff.  If the Speech or Debate Clause restricts the questioning that can take place during voluntary interviews, House and Senate counsel can argue that it is improper for the FBI to conduct such interviews outside the presence of counsel who can object to questioning that violates the privilege.  Of course, the House counsel’s office has long argued that the FBI should notify it in advance before interviewing congressional staff, but the FBI has often ignored that admonition.