Category: Speech or Debate

           The Government has filed its opposition to former Congressman Renzi’s appeal of the Magistrate Judge’s Speech or Debate rulings.  Its brief argues that “[t]he crux of the honest services case against Renzi . . . are his acts of receiving a personal benefit for a decision while purporting to be exercising independent discretion, as well as his nondisclosure of material information to Resolution Copper and the Aries Group.”  (brief at p. 10, emphasis added).  This, it argues, is not covered by Speech or Debate because it is indistinguishable from bribery cases (like United States v. Myers, 635 F.2d 932 (2d Cir. 1980) and United States v. Williams, 644 F.2d 950 (2d Cir. 1981)) in which the Member of Congress is prosecuted for accepting personal benefits given for the purpose of influencing the Member in regard to future legislative action. 

            But there is a distinction between cases like Myers and Williams, on the one hand, and Renzi’s, on the other.  In bribery cases the personal benefit can be separated from the legislative action, at least in theory.  The Member is charged with having accepted money (or some other personal benefit) from the bribegiver.  The only thing that need be proved with respect to the Member’s state of mind is his knowledge of the bribegiver’s corrupt intent, namely that the money is intended to influence the Member’s future legislative actions.  The Member’s own intent or state of mind with regard to the legislation is irrelevant. 

            The Renzi case, however, is different.  As the government itself notes, Renzi is charged with making a decision (i.e., which bill to support) on the basis of something other than his “independent discretion.”  In other words, he is charged with supporting legislation not because he believed it was in the public interest to do so, but because he stood to gain financially from it.  Thus, his state of mind with regard to the legislation itself is in issue.  The government simply ignores this fundamental point. 

            The government also discusses the D.C. Circuit’s recent decision in the Feeney case (which I discussed in previous posts).  In that case, former Congressman Feeney had claimed that his golfing trip to Scotland was for “legislative factfinding” purposes.  The D.C. Circuit made a point of noting that such legislative factfinding is protected by Speech or Debate.  The Renzi prosecutors, however, discount this language, noting that the issue in Feeney was whether his testimony before the Ethics Committee was protected by Speech or Debate, not whether his activities in Scotland were protected. 

            The D.C. Circuit’s statements regarding the allegedly legislative nature of Feeney’s trip may have been dicta, but they certainly suggest that the court viewed not only Feeney’s testimony, but also his trip, to be entitled to Speech or Debate protection.  In any event, the Feeney and Renzi cases together illustrate an important fact about judicial interpretation of the Speech or Debate Clause.  Too often it seems that what passes for Speech or Debate “analysis” is really nothing more than judges issuing the magic words that certain acts are “legislative” and certain acts are “non-legislative,” with little connection to the purpose that the Clause is intended to serve.   

         Whatever “legislative factfinding” Feeney was doing while golfing at St. Andrews, the connection between his trip and the legislative process seems vastly more attenuated than with that with respect to Renzi’s discussions about land exchange legislation.  Without a coherent theory of why Speech or Debate protection exists in the first place, both legislators and the general public will understandably look at cases like these and wonder- what is the Speech or Debate Clause good for?

             As suggested in my last post, Judge Kavanaugh’s concurrence in In re Grand Jury (Feeney) rejects the Ray/Rose test as incoherent and unworkable.  He argues that it makes no sense to condition the Speech or Debate protection given to a Member’s communication with the Ethics Committee on the subject matter of the underlying proceeding.  He observes that the Constitution gives each House “expansive authority” to discipline its own Members for improper behavior, whether that behavior is arguably “official” (Ray) or “personal” (Rose).  At least to the extent that a disciplinary proceeding falls within that broad grant of jurisdiction, a Member’s communication with the Ethics Committee should be treated the same regardless of the subject matter of the proceeding.  

            Kavanaugh would replace the Ray/Rose test with a simple proposition: “courts must protect, without qualification, a Member’s speech in an official congressional disciplinary proceeding.”  He argues that this conclusion is required by both the text of the Constitution and by Supreme Court caselaw.  With regard to the former, he contends that a Member’s communication with the Ethics Committee in the context of a disciplinary proceeding is self-evidently “Speech . . . in either House” protected by the Speech or Debate Clause.  It also falls comfortably within the Supreme Court’s description, in Gravel v. United States, 408 U.S. 606, 625 (1972), of the Clause as encompassing matters that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”   

            In my judgment, Kavanaugh is clearly correct in rejecting the Ray/Rose distinction.  It is less obvious, however, that he is correct in treating all Member communications with the Ethics Committee as “speech” protected by the Clause.  One could argue that a Member’s written or oral testimony to the Ethics Committee, while literally “speech,” is not given in the Member’s capacity as a Member (and thus not “an integral part” of the processes by which Members “participate in committee . . . proceedings”), but as a witness to facts relevant to the proceeding.  Thus, the Member’s speech in this capacity should be treated no differently than that of a congressional staffer or private citizen called upon to give evidence.

Consider, for example, an election contest held before the Committee on House Administration. Like disciplinary proceedings, election contests are a judicial function exercised by each House of Congress pursuant to explicit constitutional authority. Following Kavanaugh’s reasoning, the testimony of an incumbent Member in an election contest would be protected by Speech or Debate, while the testimony of the adverse party (i.e., the as yet unsuccessful challenger seeking the Member’s seat) presumably would not be. It would seem more logical, however, to treat the two in the same fashion, reflecting the fact that both are in the same relationship, that of party/witnesses, to the tribunal.

This suggests that the question is more complex than Kavanaugh makes it out to be. It is also worth noting that Kavanaugh’s proposed solution would have a significant impact on the relationship between congressional proceedings and the criminal law. As he acknowledges, it would make it impossible to prosecute Members for false statements made in congressional proceedings. Arguably, this would apply not only to evidence submitted in a disciplinary proceeding, but to Member filings of financial disclosure or travel reports, which are also (literally) “Speech . . . in either House.”

Part of the problem here is the loose connection between the ostensible purpose of Speech or Debate and the way that it has actually been applied by the courts. Kavanaugh notes that the Clause was designed to “assure[] Members of Congress ‘wide freedom of speech, debate and deliberation without intimidation or threats from the Executive Branch.’” (quoting Gravel, 408 U.S. at 616). He does not explain, however, how either the panel’s decision or his proposed solution would achieve that laudable goal.

Consider the fact pattern before the court. Former Congressman Feeney’s troubles originated with a 2003 golfing trip to Scotland that was apparently paid for by lobbyist Jack Abramoff, although Feeney’s travel report failed to disclose this fact.

Under existing doctrine, there is nothing preventing the Justice Department from investigating or prosecuting alleged crimes associated with the trip, such as bribery (if the trip were alleged to be in exchange for an official act), illegal gratuity (if the trip were alleged to be on account of an official act) or filing of a false travel report. To prove such criminal conduct, the Department could introduce evidence of non-legislative official acts performed by Feeney on Abramoff’s behalf (such as intervening with an executive agency) or discussions between Feeney and Abramoff about potential future legislative acts.

It is easy to imagine, therefore, that the Justice Department might use its power to do the very things the Speech or Debate Clause was supposedly designed to prevent. It could seek to intimidate Feeney so that he would become more amenable to the executive branch’s position on certain issues. It could seek to retaliate against Feeney because it disliked his legislative positions or actions or because it disapproved of his relationship with Abramoff. It could seek to weaken him politically so that he could be defeated in the next election.

Given these existing options for prosecutors, it is hard to see how the panel’s decision makes Feeney less vulnerable to executive branch intimidation or threats. It makes it marginally more difficult for prosecutors to gather evidence, but nothing in the decision (or in Kavanaugh’s rationale for the decision) prevents the government from directly investigating or prosecuting Feeney for conduct related to the Scottish trip.

One might argue that prohibiting the government from subpoenaing a Member’s statements to the Ethics Committee would protect the independence and autonomy of the Committee itself, as opposed to the individual Member. The Committee might fear that prosecutors will, in effect, second guess its decisions, drawing different conclusions from the same evidence. The Committee might also find it more difficult to obtain evidence if witnesses were worried that their testimony could be subpoenaed by federal prosecutors. (I suspect that House Counsel, which filed an amicus brief in the Feeney case, made an argument along these lines).

The problem with this argument, however, is that the panel decision is both underprotective and overprotective from the standpoint of these concerns. It is underprotective because it applies only to a subpoena for the testimony of a Member; it does not prevent prosecutors from issuing subpoenas to the Ethics Committee witnesses or otherwise seeking to probe the workings of the Ethics Committee.

More important, the decision overprotects the Ethics Committee’s interests in autonomy. It does not merely prevent prosecutors from obtaining or using information without the consent of the Committee. (This is unlike, for example, the Third Circuit case where prosecutors sought to subpoena information regarding former Congressman McDade directly from the Ethics Committee and the court upheld the Committee’s assertion of Speech or Debate). Under the panel’s ruling, prosecutors would be unable to use a Member’s testimony even if the Ethics Committee voluntarily turned it over to prosecutors, something that is explicitly contemplated by House Rules.

This means that the only interest truly protected by the panel’s ruling is Feeney’s interest in a “wide freedom of speech” with respect to his communications with the Ethics Committee. This seems like a peculiar interest to protect. When a Member is providing factual information to a congressional committee performing a judicial function, we expect him, like other witnesses, to provide the truth, the whole truth, and nothing but the truth, something which is antithetical to the notion of exercising a “wide freedom of speech.”

Having said all this, I remain troubled by the subpoenas to Feeney’s lawyers. But the reason that I am troubled is that the subpoenas were seeking information which is confidential under House Rules and which those rules provide is to be released to federal prosecutors only upon an affirmative vote of two-thirds of the Ethics Committee. See House Rule XI, 3(a)(3). This is a problem that should be addressed through a separation-of-powers analysis. It is not an issue that easily fits within the language or purpose of the Speech or Debate Clause.

             The D.C. Circuit issued a significant Speech or Debate ruling last month in a case involving former Congressman Tom Feeney.  Feeney had been investigated by the House Ethics Committee for accepting a privately financed trip which allegedly violated House Rules because it was paid for by a lobbyist and/or was “substantially recreational in nature.”   

            After the ethics investigation was closed, federal prosecutors began looking into the matter.  Grand jury subpoenas were issued to Feeney’s lawyers seeking information about the statements that Feeney had made to the Ethics Committee (although it is not clear from the opinion, it appears that the investigation may have focused on whether these statements were truthful).  Feeney and his lawyers moved to quash the subpoenas based on the Speech or Debate Clause.  The district court denied the motion, holding that “the congressman was not acting in his legislative capacity but in his personal capacity as a witness to facts relevant to the Committee’s investigation.” 

            At first glance, the district court’s conclusion would appear to be well-supported by the D.C. Circuit’s decision in United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994).  Rose involved a congressman who was sued by the Justice Department for filing false financial disclosure statements that failed to disclose personal loans he had received from his campaign and other sources.  The suit relied upon the congressman’s testimony before the House Ethics Committee, which had previously investigated the same issue.  The court rejected the argument that this use of the testimony violated the Speech or Debate Clause, noting that the congressman’s testimony did not relate to pending legislation but to his handling of personal financial transactions.  It concluded that he “was acting as a witness to facts relevant to a congressional investigation of his private conduct; he was not acting in a legislative capacity.” 

            In reaching this conclusion, however, the Rose court had to distinguish a prior D.C. Circuit decision, Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978), which held that a Senator’s letter to the Senate Ethics Committee was protected by Speech or Debate.  In that case, the Senator was responding to allegations that he had misused Senate rooms by reserving them for the use of his wife’s clients.  The Ray court stated that “[i]n responding to a Senate inquiry into an exercise of his official powers, Senator Proxmire was engaged in a matter central to the jurisdiction of the Senate.”  The Rose court seized upon this reference to the Senator’s “official powers,” finding that Rose’s testimony, in contrast, related to personal financial transactions rather than the use of “official powers.” 

            This distinction, however, makes little sense.  In the first place, it is clear that the ethics committee has jurisdiction over alleged improper filings of financial disclosures, and it is difficult to see why such matters are any less “central to the jurisdiction” of the House or Senate than other allegations of improper conduct by Members.  Second, it is not at all obvious how one concludes that misuse of Senate rooms is more “official” than improper filing of financial disclosures.  In the former case, the Member allegedly misused an official power for personal gain, while in the latter the Member allegedly failed to perform an official duty for personal benefit.  Why this makes a difference for purposes of Speech or Debate protection is not explained by the Rose case. 

            The application of this distinction to the facts of the Feeney case is not self-evident either.  The government argued that the ethics investigation concerned a “personal” matter, i.e., Feeney’s receipt of a privately funded vacation in violation of House Rules.  During the course of the ethics investigation, however, Feeney had argued that his trip was for purposes of legislative fact-finding.  The D.C. Circuit found that this contention (whether or not it was true) transformed the investigation into one of whether Feeney had “abused” his official powers in accepting the trip.  It therefore concluded that the case fell on the Ray side of the Ray/Rose line and that Feeney’s statements to the Ethics Committee were protected by Speech or Debate.      

            Given the incoherence of the Ray/Rose distinction, it is difficult to say with assurance whether the Feeney panel applied it correctly.  As Judge Kavanaugh points out in his concurrence, the Ray/Rose test involves “fine slicing of Member’s speech” that engenders confusion and uncertainty.  It is worth noting, however, that the Feeney decision may add even more uncertainty and confusion to this area.  For example, the panel emphasized the fact that “legislative fact-finding” is itself protected by Speech or Debate.  Does this mean that the case would have been decided differently if the alleged official purpose of the trip had been non-legislative (e.g., giving a speech)?  It is also impossible to tell from the decision what the relationship was between the statements that the government sought to subpoena and the alleged legislative purpose of the trip.  Does the mere fact that the ethics investigation involved an issue of legislative fact-finding mean that all of Feeney’s statements are protected by Speech or Debate, even if they related to other subjects (such as whether the trip was funded by a lobbyist)? 

            Judge Kavanaugh proposes eliminating the Ray/Rose distinction and replacing it with a simple rule that all Member statements in congressional disciplinary proceedings are protected by Speech or Debates.  I will discuss this proposal in a future post.  For now I will simply note that there is much force to Kavanaugh’s argument, but it would have very significant implications that need to be carefully considered. 

            Before leaving the main Feeney decision, it should be noted that it could have implications outside the narrow area of subpoenas for statements made to the Ethics Committee.  If the grand jury were investigating whether the privately financed trip constituted a bribe or illegal gratuity, it might be argued, based on the language of this case, that the Speech or Debate Clause prohibits any inquiry into the trip because of the alleged legislative fact-finding purpose.  Whether the holding in fact extends so far will have to await future litigation.

           The Magistrate Judge in the Renzi case has issued this report and recommendation on Renzi’s claim that the indictment violated the Speech or Debate Clause. 

            To recap, (now former) Congressman Renzi is alleged to have told landowners who wished to obtain federal land exchange legislation that he would sponsor the bill only if they purchased for inclusion in the exchange certain property owned by a James Sandlin (who happened to owe Renzi a substantial sum of money). 

            The government’s primary argument is that these allegations do not offend the Speech or Debate Clause because they involve only future legislative acts.  It relies on cases, such as United States v. Helstoski, 442 U.S. 477 (1979), which hold that the promise to vote for a bill in the future, at least in the context of the promise being made in exchange for a bribe, is not a legislative act protected by Speech or Debate. 

            The Magistrate begins his analysis by accepting the basic thrust of the government’s argument.  He states that “the government may establish the allegations with proof involving promises to vote and solicit other votes for the respective land swap proposals in return for the purchase of the Sandlin property; such promises are promises to perform future legislative acts, and as such, under Helstoski, are not protected.” 

            However, as the Magistrate obliquely acknowledges, the matter is not so simple as the foregoing quote would suggest.  The Renzi case would have been on all fours with Helstoski if Renzi were alleged to have promised to vote for the land exchange legislation in return for the purchase of some property unrelated to the legislation.  The same would be true if Renzi had allegedly stated that he would vote for the land exchange legislation only if the Sandlin property were included and the purchaser paid more than X amount for it.  In actuality, however, these allegations have not been made; instead, the core of the prosecution’s case is simply that Renzi corruptly insisted that he would support the land exchange legislation only if the Sandlin property were included.

In the ensuing ten pages, the Magistrate struggles to explain why this difference makes no difference. As he observes, the case law has not “established any definitive boundary for the lower courts to apply to establish whether an activity involves Speech or Debate.” Unfortunately, the Magistrate’s discussion does not bring that boundary into sharper focus; if anything, he blurs the lines even more.

Renzi argued that negotiating with private landholders is a routine and inherent part of the legislative process for land exchange legislation. The Magistrate’s response to this argument is particularly confusing: “Renzi’s conduct alleged in the indictment may be routine, it may be “procedurally” akin to negotiating an amendment to draft legislation, and some day communication between private landowners drafting legislation in the hopes their local representative might support it, and a representative who might at some future time support such legislation may be provided constitutional protections befitting that relationship, but presently this Court does not find that it is protected under the Speech or Debate Clause of the Constitution.” (emphasis in original).

What does this mean? Is the Magistrate suggesting that Renzi’s position is logical, but somehow conflicts with existing case law? Or is it that Renzi’s position may be right, but the Magistrate does not intend to be the first judge to say so? Hard to tell.

The Magistrate ascribes considerable significance to the fact that Renzi’s negotiations with the landowners occurred before legislation was introduced. He indicates at one point that the same negotiations, had they taken place before legislation was introduced, would have been “probably protected,” and, at another, “clearly protected” by Speech or Debate. Presumably the Magistrate is persuaded that such negotiations would themselves be part of the legislative process and therefore covered by Speech or Debate, even though they involve references to future legislative acts. For reasons that are unexplained, however, the Magistrate does not believe that the same can be said about negotiations that precede the introduction of legislation. To muddy the waters further, the Magistrate asserts that “there is no artificial line drawn at the introduction of legislation.”

Regardless of whether the negotiations were part of the legislative process, however, the Magistrate acknowledges it would be impermissible for the prosecution to use that evidence to impugn Renzi’s motivation for sponsoring the land exchange legislation. He states that “inquiring into Renzi’s motivation for telling the land proponents to include the property in their exchange packages, or Renzi’s motivation for sponsoring the package, would draw an impermissible inference into Renzi’s legislative acts, and would be privileged.”

This is, of course, precisely what the indictment seems to do when it alleges that Renzi and Sandlin entered into a conspiracy to deprive the United States of its right to Renzi’s “honest services” by “using the promise of Renzi’s exercise of his official authority in their favor to compel [the landowners] to purchase the Sandlin Property.” Although the indictment may not expressly state that Renzi had a corrupt motivation for telling landowners, this is implicit in the charges. If Renzi did not have a corrupt motivation for insisting that the Sandlin property be included in the legislative proposal, then the United States was not deprived of his honest services and there would be no basis for the indictment.

Finally, a word must be said about the Magistrate’s most far-fetched attempt to attempt to avoid the application of Speech or Debate. He suggests that the Clause does not apply because the alleged activities exceeded Congress’s jurisdiction. Why? Not because Congress lacks the power to enact land exchange legislation. Instead the Magistrate claims that “Congress’s jurisdiction in this instance certainly does not reach as far as the illegal conduct alleged to take place in the negotiations between the landowners and Renzi solely for the personal enrichment of Renzi.” In other words, because Renzi was alleged to have acted illegally, he is not entitled to protection of Speech or Debate. This assertion would make the Speech or Debate privilege meaningless. As the Helstoski Court noted, “the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts.” It would hardly achieve this purpose if the government could evade its strictures when the legislative acts were illegal.

In conclusion, I have to give the Magistrate some credit for grappling with the difficult case law in this area. Speech or Debate law is complicated, sometimes inconsistent and definitely under-theorized. Unfortunately, the Magistrate’s foray has not improved matters.

           In an order issued earlier this month, U.S. District Judge David Bury of the U.S. District Court of Arizona rejected some of the key Speech or Debate claims made by former Congressman Rick Renzi.  This ruling means that Renzi will almost certainly be unsuccessful, at the district court level, in his attempts to suppress evidence from wiretaps of his cell phone.  Renzi has already signaled his intention to appeal this ruling to the Ninth Circuit. 

            The key to Judge Bury’s decision was his view that the Speech or Debate privilege is one of non-use, not non-disclosure. The court disagreed with the D.C. Circuit’s opinion in United States v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), which held that the Justice Department violated the Speech or Debate privilege when it executed a search warrant on a congressional office without first allowing the Congressman an opportunity to protect legislative materials from seizure. 

            Judge Bury described Rayburn as “an example of hard cases making bad law.”  Carried to its “logical conclusion,” Rayburn “would require advance notice of any search of a Congressman’s property, including property outside his congressional office, such as his home or car, and that he be allowed to remove any material he deems to be covered by the legislative privilege prior to a search.  If mere exposure by the Executive Branch violates the privilege agents could not conduct voluntary interviews of congressional staffers, who wish to expose criminal acts involving legislative activities or conduct surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.”  (emphasis added).  Such results would be contrary to the purpose of the Speech or Debate Clause, which was designed “not to create super-citizens, immune from criminal responsibility and susceptible to corruption.” 

            Although Bury’s ruling directly applies only one of Renzi’s six pending Speech or Debate motions, his reasoning seems to require rejection of two of the other motions, which are also based on a “non-disclosure” theory (these motions request suppression of evidence obtained by wiretap, search warrant and consensual interview of staff).  However, the ruling will not necessarily affect Renzi’s remaining motions, which seek dismissal of the case based on alleged use of privileged information before the grand jury or in the indictment itself. 

            Renzi has asked for reconsideration of the ruling or, in the alternative, that it be held in abeyance until resolution of the other Speech or Debate motions.  Renzi suggests that however the Speech or Debate motions are resolved, there is likely to be a pre-trial appeal by either the prosecution or the defense (or both), and argues that all of the Speech or Debate issues should be consolidated into a single appeal in order to conserve judicial resources. 

  

           The Renzi case involves, broadly speaking, three distinct types of Speech or Debate issues.  The first involves the question of whether the government violated the Speech or Debate Clause when it wiretapped Renzi’s cell phone.  The Magistrate appears to have largely rejected that theory in an order issued several weeks ago. 

            The second issue involves whether the activities for which Renzi was indicted were themselves protected by Speech or Debate.  Principally, these activities involved Renzi’s negotiations and discussions with private parties about the land exchange legislation that lies at the center of the case.  Renzi argues that these activities are protected as part of the legislative process, while the government contends that these activities only involve communications about future legislative activity and are therefore unprotected.   

The third issue concerns whether the grand jury relied on Speech or Debate information in deciding to indict Renzi.  In other words, even if the activities for which Renzi was indicted are not protected, the indictment could be dismissed on the grounds that the grand jury relied on privileged evidence to make its indictment decision.  (Renzi argues that there were materials presented to the grand jury that clearly refer to past legislative acts and therefore, even under the government’s theory, are protected under Speech or Debate.).   In the Magistrate’s previous order, he indicated that dismissal on this ground would be warranted only if it were shown that “privileged materials were essential to the grand jury’s decision to indict.”  

            The Magistrate has now issued an order requiring the government to disclose to Renzi’s defense team portions of the grand jury transcript and the instructions given to the grand jury regarding the Speech or Debate Clause.  The order finds that Renzi “has sufficiently demonstrated a particularized need to review the grand jury transcripts because grounds may exist to dismiss the indictment because protected material may have been presented to the grand jury.”  The judge also set oral arguments for April 30 and May 1 on various motions, including Renzi’s motion to dismiss the indictment on Speech or Debate grounds.   

            It is unclear how much should be read into this new order.  If the Magistrate agrees with Renzi regarding the second issue (or is leaning in that direction), disclosure of additional grand jury materials would seem to be irrelevant because it is clear that the indictment on its face charges Renzi with activities that are protected under Renzi’s theory.  On the other hand, if the Magistrate sides with the government on this issue, it seems unlikely (though not impossible) that Renzi could prove that other materials presented to the grand jury were “essential” to its decision.  It may be that the Magistrate is merely developing a full record for the district court’s consideration.  Still this shows that the Magistrate understands the seriousness of the Speech or Debate questions presented in the case. 

            One thing seems certain.  The Speech or Debate litigation in this case is going to drag on for quite a while.  It also seems unlikely that Renzi’s trial, which was originally scheduled for this spring, will happen anytime soon.

          Former Congressman William Jefferson is seeking a writ of certiorari on the question of “whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.”   Jefferson contends that the Fourth Circuit erred in refusing to consider whether Speech or Debate privileged evidence was presented to the grand jury and that its decision conflicts with the law of other circuits, including the D.C. Circuit, the Third Circuit and the Eleventh Circuit. 

            In Jefferson’s case, the district court conducted a review of all the allegedly privileged evidence presented to the grand jury and concluded that no violation of the Speech or Debate Clause had occurred.  The most problematic instance involved a former staffer whose testimony made reference to Jefferson’s role in passing a particular piece of legislation.  However, the district court found that this reference was not material or relevant to the allegations of the indictment and, moreover, was volunteered by the witness without prompting.  Therefore, the judge refused to dismiss the indictment. 

            Jefferson appealed, and the Fourth Circuit affirmed.  The panel stated that “[u]nder [Jefferson’s] interpretation of the Clause, any mention of Speech or Debate Clause material in a grand jury proceeding mandates the dismissal of all charged offenses which relate to such evidence.”  The court, however, rejected this view of the law.  Instead, the court concluded that under Fourth Circuit precedent “a grand jury will not be deemed biased solely because it heard some evidence relating to congressional speech.”   

            This aspect of the Fourth Circuit’s decision does not appear to be in conflict with any other circuit.  No court has held that an incidental reference to legislative activity before the grand jury requires dismissal of the indictment.  The Eleventh Circuit, for example, has stated that “[i]f reference to a legislative act is irrelevant to the decision to indict, the improper reference has not subjected the member to criminal liability [and the] case can proceed to trial with the improper references expunged.”  U.S. v. Swindall, 971 F.2d 1531, 1548 (11^th Cir. 1992).    Other courts have suggested that dismissal is required only if the privileged evidence was a “factor” or a “substantial factor” in the grand jury’s decision to indict.  Just last week in the Renzi case, the Magistrate Judge suggested that the standard for dismissing an indictment was whether the “privileged materials were essential to the grand jury’s decision to indict.” 

            Jefferson bases his cert petition on language in the Fourth Circuit opinion suggesting the court is barred from ever going behind a facially valid indictment to assess whether the grand jury relied on Speech or Debate material.  In a footnote, however, the court leaves open the possibility that it could go behind the indictment under some circumstances, such as where there were a pervasive violation of the Speech or Debate Clause before a grand jury.  Moreover, although the Fourth Circuit indicates that the trial judge performed a more “comprehensive review” of the grand jury transcript than was required by precedent, it also states that “[u]nder the facts of this case . . . the [trial] court’s decision to act as it did in assessing Jefferson’s Speech or Debate Clause Claim was within its discretion and entirely appropriate.”  At the end of the day, therefore, Jefferson’s claim was rejected because the trial court properly found that the grand jury did not consider any Speech or Debate material, rather than because of any distinctive legal standard followed in the Fourth Circuit. 

            In short, while there are some important Speech or Debate issues percolating in the lower courts, it seems unlikely that the Supreme Court will take up this particular issue.   

 

           On Feb. 13, the Magistrate Judge in the Renzi case issued a significant order denying Renzi’s motion to (a) hold a Kastigar-type hearing to determine whether the Government used protected Speech or Debate material during the course of Renzi’s prosecution and (b) disqualify the prosecution team because it has been exposed to such protected material. 

            First, the Magistrate finds that “Renzi is mistaken in his argument that the [Speech or Debate] privilege extends to requiring the prosecution to demonstrate, in a Kastigar hearing, that its case against Renzi is based upon evidence completely independent of the evidence it obtained in violation of the Speech or Debate Clause.”  [note: Kastigar hearings are held when a defendant has received immunity to testify after asserting the Fifth Amendment, and the Government must demonstrate that it made neither direct nor derivative use of the immunized testimony against the defendant].   The Magistrate points out that much protected Speech or Debate information is public in nature, and it would make no sense to prohibit the Government from reviewing such information, so long as it does not use it against a Member of Congress.  Moreover, even if some Speech or Debate material is used before the grand jury, this does not require dismissal of the indictment unless the defendant can demonstrate that the “privileged materials were essential to the grand jury’s decision to indict.” 

            Second, and more importantly, the Magistrate rejects Renzi’s argument that the prosecution team be disqualified for exposure to protected Speech or Debate information, particularly information obtained from the wiretap on Renzi’s cell phone.  Although the court does not rule directly on the legality of the wiretap, its reasoning clearly rejects the theory which Renzi (and the House) advanced on that issue.  On the key question of whether the Speech or Debate privilege is one of non-disclosure, the court agrees with the Third Circuit (and disagrees with the D.C. Circuit) that it is not.   Moreover, the court expressly concurs with Judge Henderson’s separate opinion in the Rayburn case that the “execution of a search warrant on a congressional office—with its unavoidable but minimal exposure to records of legislative acts—does not constitute questioning within the meaning of the Speech or Debate Clause.”  Therefore, it appears that the wiretap, involving neither evidentiary use nor questioning, but merely disclosure of legislative information, could not have violated the privilege. 

            This is merely the first round of the case.  Renzi will undoubtedly appeal to the district court judge.  This case continues to set up as the most important Speech or Debate case in a generation (not only on the wiretap issue, but on the question of whether the indictment on its face violates the Speech or Debate Clause), one that seems increasingly likely to wind up in the Supreme Court.

          Another critical Speech or Debate issue in the Renzi case involves the wiretap on a cellular phone used by Renzi.   The Arizona federal court authorized the wiretap for a 30-day period from late October to late November 2006.  The wiretap order required the monitor to stop listening when a conversation “relates directly to legislation pending before the United States Congress,” but provided that such conversation would still be recorded and placed in a sealed envelope for later review by an independent group of investigators or prosecutors.  Moreover, the order explicitly excepted conversations related to the land exchange legislation under investigation; these conversations were to be fully monitored and reviewed. 

            Renzi, with the support of the House leadership, maintains that the wiretap was an unconstitutional violation of the Speech or Debate Clause.  Relying on United States v. Rayburn House Office Bldg, 497 F.3d 654 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1738 (2008), Renzi and the House argue that the Clause contains a “non-disclosure” element that prohibits law enforcement from “seizing” non-public legislative information from a Member of Congress (or congressional aide), whether by subpoena, search warrant or wiretap.

In Rayburn, the D.C. Circuit held that compelled disclosure of protected legislative documents during the execution of a search warrant for a congressional office violated the Speech or Debate Clause. Although the search warrant in Rayburn was not directed at legislative materials, the court held that because the search “exposed legislative material to the Executive” as law enforcement officials conducted a review of the Congressman’s files, the search was unconstitutional.

As Judge Henderson warned in a separate opinion, the Rayburn majority’s conclusion that “the Clause’s shield protects against any Executive Branch exposure to records of legislative acts would jeopardize [a number of] law enforcement tools,” including “surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.” Indeed, in its petition for certiorari in Rayburn, the Department of Justice asserted that the decision “potentially jeopardizes wiretaps . . . directed at Members” and informed the Supreme Court that “[t]he government does not presently intend to use wiretaps against Members in the District of Columbia” as a result of the Rayburn holding.

The Renzi prosecutors somewhat half-heartedly attempt to distinguish Rayburn on the basis of the official nature of the property searched. They argue that Rayburn might apply if the wiretap had been on Renzi’s office phone, or an official cell phone. Here, however, the wiretap was on a personal cell phone that was not even in Renzi’s name, but registered to a private business held in the name of Renzi’s wife. The prosecutors argue that “[t]here is manifestly far less danger in intercepting calls made over a [private] business telephone” than an official phone.

This distinction, however, is unpersuasive. There is nothing in the reasoning of the Rayburn decision to suggest that its holding is limited to cases where a search is conducted of official congressional premises. If the rationale of Rayburn is that the Speech or Debate Clause prohibits the seizure of non-public legislative information from a Member of Congress, it would not seem to matter where the information happens to be located (as long as it is under the control of a Member). Nor is it plausible to suggest that there was little danger of seizing such information from Renzi’s cell phone. As the House points out, “the Congressman had only one cell phone, the phone that was the subject of the Wiretap Order, and that he regularly conducted legislative activities over that cell phone. The Department was certainly well aware, when it applied for the order, that Congressman Renzi used his cell phone to conduct legislative activities because, among other things, the Wiretap Order and Monitoriing Memo specifically contemplated the monitoring and recording of legislative conversations.” Indeed, this would seem to make the wiretap order more problematic, based on the rationale of Rayburn, than the search warrant involved in Rayburn itself, which was not aimed at seizing legislative materials.

If Rayburn was correctly decided, the Renzi wiretap is almost certainly unconstitutional. In fact, it is difficult to see how Members of Congress could ever be subject to wiretaps because such wiretaps would almost always intercept some legislative information. The House claims that a Member of Congress can be wiretapped so long as “appropriate safeguards” (which the House does not identify) are in place. But what would such safeguards look like? As the House itself argued in the Rayburn case, determining whether a particular communication is privileged under the Speech or Debate Clause requires a good deal of analysis and investigation. As the House put it, “[e]ven House Counsel which, along with Senate Legal Counsel, deals with Speech or Debate matters on an almost daily basis and has litigated numerous Speech or Debate cases, frequently cannot tell, merely by looking at a document, whether it is privileged.” A wiretap monitor certainly cannot be expected to make that judgment on the spot.

Judge Henderson was right. The Rayburn decision makes it problematic for law enforcement to use a whole host of investigative techniques with regard to Members of Congress. The Renzi case may provide the Supreme Court with another opportunity to address this important issue.

         The House brief in the Renzi case contends that the Department of Justice violated the Speech or Debate Clause when it questioned Renzi aides before the grand jury regarding protected legislative activities.  It also argues that the Department violated the Clause when it presented to the grand jury “significant numbers of internal House emails and other records from Congressman Renzi’s office that discussed or related directly to proposed legislative land exchanges.”  These violations, it says, were “flagrant,” “[s]ubstantial, repeated and persistent.” 

            The House provides a number of examples of testimony and documents that were presented to the grand jury in violation of the Speech or Debate Clause.  These include evidence regarding Renzi’s motives for supporting or opposing particular aspects of the proposed land exchanges, internal congressional discussions of legislative strategy, particularly as related to the roles and views of Members of the Arizona delegation who supported the land exchanges, and drafts of the proposed legislation itself. 

            The House, however, does not directly address what is likely to be the key Speech or Debate issue in the case, i.e., whether Renzi’s discussions with private parties regarding the proposed legislation, including the discussions where he allegedly “extorted” those parties by insisting that the land exchanges include property owned by his associate Sandlin, were protected by the privilege. 

Some portions of the House’s brief suggest that it would answer this question in the affirmative. For example, the House emphasizes that “the development of direct land exchange legislation resembles the negotiation of a commercial contract, and extensive negotiations between the private landholder and a Member of the House or Senate are a normal and routine part of the process.” This implies that such negotiations are an “integral part of the deliberative and communicative processes by which Member participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation,” which is the test the Supreme Court has enunciated for determining whether the privilege applies.

The House also asserts that Speech or Debate protection should apply to internal congressional records that contain “descriptions of meetings with constituents, lobbyists and others regarding legislation,” which would seem to suggest that such meetings are part of the legislative process. Although the House does not explicitly respond to the prosecution’s contention that such meetings are not protected if they merely discuss future legislative action, its legal discussion highlights the fact that “the privilege also extends to preparations for and information gathering in furtherance of, legislative activities.” Thus, one can infer that the negotiations with landholders regarding potential land exchange legislation must be protected because such negotiations are themselves integral to the development of such legislation and/or because they are essential fact-gathering activities in support of the legislation.

On the other hand, the House makes clear that it is not seeking “to protect Congressman Renzi from criminal investigation or prosecution [or] to suggest that he or any other Member of Congress is above the law or immune from prosecution.” Specifically, it emphasizes that “the Leadership Group is not suggesting that this case cannot be properly charged and prosecuted.”

The problem is that it may be impossible to charge or prosecute Renzi with regard to the land exchange legislation if his discussions with the private landholders are protected by Speech or Debate. Thus, there may be an inherent conflict between the House’s preferred legal position and the political imperative of avoiding the appearance of seeking to protect Renzi. Because of this conflict, the House may have chosen to address the key legal issues only elliptically, leaving it to the judge to read between the lines.