Senator Stevens’ Speech or Debate Defense

 

Senator Stevens’s lawyers have filed a blizzard of motions attacking the indictment against him.  One contends that the indictment violates the Speech or Debate Clause of the Constitution.   For the reasons set forth below, it is highly unlikely that Stevens will be successful in having the indictment dismissed on this basis.  Making this argument, however, could be to Stevens’s advantage for two reasons: (1) it focuses the court’s attention on some of the peripheral allegations of the indictment, which could lead to the court limiting the government’s ability to present evidence on these allegations and (2) it creates an opportunity for Stevens to take an immediate appeal, which could result in delaying the trial.  Stevens’s Speech or Debate theory is focused on Paragraph 17 of the indictment, which states:

                                                                                                                                                                                                                                                

 17.  It was part of the scheme that STEVENS, while during that same time period that he was concealing his continuing receipt of things of value from ALLEN and VECO from 1996 to 2006, received and accepted solicitations for multiple official actions from ALLEN and other VECO employees, and knowing that STEVENS could and did use his official position and his office on behalf of VECO during that same time period.These solicitations for official action, some of which were made directly to STEVENS, included the following topics: (a) funding requests and other assistance with certain international VECO projects and partnerships, including those in Pakistan and Russia; (b) requests for multiple federal grants and contracts to benefit VECO, its subsidiaries, and its business partners, including grants from the National Science Foundation to a VECO subsidiary; and (c) assistance on both federal and state issues in connection with the effort to construct a natural gas pipeline from Alaska’s North Slope Region

Stevens accuses the government of  “the strategic use of pluralization and the word ‘including’” so as to sweep potential legislative acts within the broad scope of activities for which Steven received solicitations. Thus, for example, the “official action” requested could have been a phone call to an executive branch official urging favorable consideration of VECO’s application for a contract or grant, which would not be a legislative act protected by the Speech or Debate Clause, or voting for an earmark in an appropriations bill, which would be.

Even if Paragraph 17 refers to legislative acts, however, this would not necessarily violate the Speech or Debate Clause. Under the confusing and rather illogical framework established by the courts, references to future legislative acts are not themselves considered to be protected by the privilege. Thus, the government may be permitted to show that Stevens received solicitations to perform legislative acts, so long as it does not allege or prove that he actually performed such acts.

On the other hand, the first sentence of Paragraph 17 alleges that someone (presumably the conspirators) performed their concealment “knowing that Stevens could and did use his official position and his office on behalf of VECO.” This sentence isambiguous (in addition to being confusing and rather ungrammatical) with regard to whether the government is alleging only the state of mind of the conspirators (i.e., what they thought they knew about Stevens’s previous actions) or what Stevens actually did. If the former, the Speech or Debate Clause arguably would not apply. In the McDade case, for example, the Third Circuit rejected a Speech or Debate challenge to the indictment, explaining that “the indictment relies on the defendant’s committee status, not to show that he actually performed any legislative acts, but to show that he was thought by those offering him bribes and illegal gratuities to have performed such acts and to have the capacity to perform other similar acts.”

Given the case law, there seems to be little ground for arguing that the indictment on its face violates the Speech or Debate Clause. Moreover, as Stevens himself argues, the allegations of Paragraph 17 are not necessary to the counts against him. Even if the grand jury was exposed to some Speech or Debate material in connection with these allegations, this would not be the sort of wholesale violation of the privilege that would permeate the grand jury proceedings and warrant the dismissal of the indictment.

Nevertheless, by making this motion, Stevens may hope to sensitize the court to the fact that the government is trying to introduce a great deal of evidence regarding his official actions, many of which are, at the very least, closely related to his legislative activities. The government is not alleging that these actions were a quid pro quo for the favors Stevens allegedly received from Allen or VECO, or that they were otherwise part of any criminal conduct. Stevens is not charged with bribery or with receiving gifts related to official actions. Instead, he is charged with falsifying his financial disclosure statements by failing to include gifts received from or liabilities owed to Allen or VECO.

The government contends that Stevens’s official actions demonstrate “Senator Stevens’ intent and his motive to conceal the substantial benefits he received from VECO.” It is questionable, however, how much probative value this evidence actually has. If Stevens was receiving gifts from VECO, his motivation not to disclose them seems clear, since such accepting such gifts would violate the Senate’s rules. Indeed, one assumes that Stevens’s defense will not be based on the absence of motivation to conceal the payments in question, but on the fact that he did not know he was required to disclose these payments.

It might be argued that if Stevens were to disclose gifts from or liabilities to a company with substantial business interests that could be impacted by his official actions, this might attract more attention than a similar disclosure related to a company with no such interests (assuming one could find a company with no interests impacted by the chairman of the Senate Appropriations Committee). But this seems like a fairly tangential point, one that could be made without a detailed recitation of all the assistance sought by VECO or provided by Stevens. The real point of the evidence the government seeks to submit may be to prejudice the jury against Stevens by implying bribery without actually alleging or proving it.

Don’t Tape Me Bro!

According to The Hill, Congressman Renzi plans to raise Speech or Debate objections to the FBI’s interception of some of his telephone calls.  No doubt his attorneys will rely primarily on the DC Circuit’s decision in the Jefferson case.  As I noted previously: 

The extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle [would not] forbid[] it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint.  

Renzi’s case is in federal court in Arizona and one can expect that these issues might end up in the 9th Circuit (quite possibly before trial, since Renzi would have an immediate right of appeal with respect to any adverse decision).  There is very little Speech or Debate precedent in the 9th Circuit (the only case I can think of is Miller v. Transamerica Press, Inc., 709 F.2d 524, 528-29 (9th Cir. 1983), which denied a motion to compel testimony from a former congressmen), and it is anybody’s guess how that court might rule.

Coconut Road Investigation Takes an Unconstitutional Detour

Yesterday, the Senate rejected Senator Coburn’s proposal to establish a joint House-Senate investigation of the Coconut Road earmark and instead adopted an amendment sponsored by Senator Boxer that would “direct” the Justice Department to conduct an investigation.  According to an article in The Hill, Majority Leader Reid’s office circulated a memo supporting the Boxer amendment and arguing that the Coburn amendment was a “poison pill” that would raise “major Constitutional issues under the Speech and Debate clause because it allows one chamber to investigate another’s members.”

 This is a specious argument.   Whether the Speech or Debate Clause would pose a difficulty for the investigation proposed by Senator Coburn depends on the answer to two questions: (1) does the Senate constitute “any other place” within the meaning of the Speech or Debate Clause when the speech or debate questioned took place in the House? and (2) if so, would a joint Senate-House committee constitute “any other place”?  These are interesting questions that, as far as I know, are not directly addressed by any precedent.  Based on my experience, I would say that the answers are (1) probably not and (2) almost certainly not, but I cannot say that the questions are settled ones.

On the other hand, it is undeniable that a Justice Department investigation does constitute “any other place” within the meaning of the Speech or Debate Clause. Thus, while there may or may not be a constitutional problem with the solution proposed by Senator Coburn, there is unquestionably such a problem with the solution proposed by Senator Boxer. Even assuming that the alteration of the text of the Coconut Road earmark violated some law (which is far from apparent), the Justice Department could not constitutionally prosecute any Member or staffer for such action. Moreover, the Justice Department would be barred from obtaining any information from the House regarding the circumstances of the alteration, thus very likely making it impossible for it even to establish the facts of what occurred.

Leaving the legal technicalities aside, it is difficult to imagine what could be more offensive to separation of powers generally and the Speech or Debate Clause in particular than for the Congress to call upon the executive branch to investigate the very core of the legislative process, namely how a bill is physically prepared for enrollment. It is astounding that the same Congress with one breath can decry the “politicization” of the Department of Justice and, with the other, outsource its own constitutional responsibilities to that Department.

Jefferson Round 3

As I predicted in earlier posts, the Justice Department is finding it hard to live with the implications of the DC Circuit’s decision in United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case).  It is now seeking a rehearing by the full court, contending that the decision hampers its ability not only to search congressional offices, but also to use other law enforcement tools in investigations of Members of Congress.  As described by John Bresnahan of the Politico:

“By interpreting the Clause to include an absolute non-disclosure privilege, the panel has not only frustrated the execution of search warrants supported by probable cause, it has invited questions concerning the lawfulness of essential tools in investigating and prosecuting corruption  – including electronic surveillance, consensual monitoring, searches of home offices, and voluntary interviews of staffers – ‘that have never been considered problematic,'” Justice Dept. prosecutors wrote in their filing.

It is not surprising that the DC Circuit’s decision is being interpreted to apply to searches of locations other than congressional offices.  As I noted in a prior post: “Although the majority seems to assume that its rationale is limited to congressional offices, it would seem, as the concurring opinion points out, that it could apply equally to searches of a Member’s home, car, etc.  (The lawyers for Senator Stevens, among others, may be considering this issue as we speak). There certainly is a strong likelihood that Members will have Speech or Debate privileged materials in their homes.  If Congressman Jefferson had wrapped his $90,000 in a copy of legislation he had introduced, would that have rendered the search of his home unconstitutional?” 

The extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle forbids it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint. 

The application of the decision to staffer interviews is less clear.  From talking with the Hill, I know that there are those who are interpreting the decision to forbid the Justice Department from conducting voluntary staff interviews without a Member’s consent, but this seems like a stretch.  Since there is no compulsion in a voluntary interview, it is difficult to see where the constitutionally proscribed “questioning” occurs (unless the Speech or Debate Clause is to be interpreted to forbid staff from talking with the press or others outside of Congress on a voluntary basis). 

Regardless, the Justice Department may face a significant hurdle in obtaining en banc review of the DC Circuit’s decision.  Technically, it won the appeal to the DC Circuit because Jefferson did not get any of the relief that he was seeking.  Normally, the victorious party cannot appeal a decision, even if it may be adversely impacted by the reasoning of the decision in the future.  I will have to review the DOJ brief to see if there is some exception applicable here.   

Foley’s legislative privilege

           Here is an interesting question.  Were Representative Mark Foley’s “naughty emails” to a former House page absolutely privileged under the Speech or Debate Clause of the Constitution?  The question is suggested by articles in the last couple of  days indicating that House lawyers have refused to give Florida law enforcement authorities access to Foley’s computers, contending that because the computers “may contain legislative information that is constitutionally privileged … and because Mr. Foley has not waived that privilege … we cannot simply give you access.”  No graphic photos found in Foley e-mails – Boston.com

            But Foley’s emails to the former page themselves contain “legislative information.”  According to this ABC news story, The Blotter: House Lawyers Refuse to Turn Over Foley’s Computers,: 

Instant messages reviewed by ABC News last October indicated the one-time Florida representative interrupted a House vote to engage in Internet sex with a high school student who had served as a congressional page and had been 18 for just six weeks at the time of the exchange.      

The message, according to its time stamp, was dated April 2003, at approximately 7 p.m. — the same time the House was voting on H.R. 1559, Emergency War Time supplemental appropriations.

Maf54: I miss you
Teen:  ya me too
Maf54: we are still voting
Maf54: you miss me too

Maf54: ok..i better go vote..did you know you would have this effect on me
Teen:  lol I guessed
Teen:  ya go vote…I don’t want to keep you from doing our job

If Foley’s references to voting are enough to bring the emails within the protection of the Speech or Debate Clause (and the House would likely take the position that they were), does this mean that the emails would be privileged from discovery by law enforcement authorities and that the House would refuse to produce these emails if they were requested?  Such would seem to be the implication of the absolute non-disclosure privilege advocated by the House and accepted by the DC Circuit in the Jefferson case.

The DC Circuit’s Decision in the Jefferson Search Case

In United States v. Rayburn House Office Building, Room 2113 (the Jefferson search case), the DC Circuit held “that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the [Speech or Debate] Clause.”  On first read, this case has some major implications for public corruption investigations and for relations between the executive and legislative branches.  Here are some preliminary thoughts.

 

Technically the case appears to be a “win” for the Justice Department in the sense that it was not forced to return the non-privileged materials Congressman Jefferson had sought. However, this victory is actually less than Pyrrhic because not only is the Justice Department stuck with a very bad opinion (from its perspective) but it may have no way of seeking further review since it got what it was asking for from the court. Whether most of the opinion should be regarded as dicta (as the concurring opinion of Judge Henderson suggests) will undoubtedly be an issue in future cases.

For the long-term, the most important aspect of the majority opinion is that it establishes a “non-disclosure” Speech or Debate privilege. What this apparently means is that privilege protects the confidentiality of certain types of legislative information (exactly what type is a matter that will need to be explored later on), as opposed to only protecting against the “questioning” of a Member of Congress. This makes the Speech or Debate privilege more like a typical secrecy privilege, such as executive privilege, deliberative process privilege or attorney-client privilege, and less like the Fifth Amendment testimonial privilege. Whether this is a good or bad thing (or some of both) I will discuss at a later time.

In the nearer term, however, there are two possible impacts of significance. First, it is not clear why the logic of the opinion would be limited to searches of congressional offices. Although the majority seems to assume that its rationale is limited to congressional offices, it would seem, as the concurring opinion points out, that it could apply equally to searches of a Member’s home, car, etc. (The lawyers for Senator Stevens, among others, may be considering this issue as we speak). There certainly is a strong likelihood that Members will have Speech or Debate privileged materials in their homes. If Congressman Jefferson had wrapped his $90,000 in a copy of legislation he had introduced, would that have rendered the search of his home unconstitutional?

The same questions could be asked of searches directed at former Members, who may have kept much legislative material from their days in office (documents in a Member’s personal office are treated as his or her personal property and they may take them when they leave office). Similarly, the same issue may arise with regard to searches directed at congressional staffers or former staffers. As the concurrence notes, surveillance of Members (eg, wiretaps) could arguably be prohibited because of the likelihood that communications of a legislative nature would be overheard. (It is less obvious that interviews of congressional staff would be impacted by the decision unless the Speech or Debate Clause is interpreted to prohibit staff from voluntarily disclosing legislative information).

Second, and perhaps just as importantly, the decision does appear to legitimize the search of congressional offices, stating that “[t]he Congressman does not dispute that congressional offices are subject to a search pursuant to a search warrant issued by the federal district court.” This concession may be regretted by Congress because there are reasons, wholly apart from the Speech or Debate Clause, why Congress should object to forced executive intrusion into the Capitol complex. These reasons are explained in my prior post, which was written shortly before the district court decision in this case.

Moreover, although the decision may make it difficult and cumbersome for the FBI to conduct searches in Congress, it also could exacerbate the problem of this executive intrusion. The opinion allows a search warrant to be issued without any notice to Congress, and it does not prohibit federal agents from seizing and sealing the area to be searched prior to consultation with a Member or Congress. One can imagine that the Justice Department, if it wished, could get a search warrant, obtain entry to the office of a Member, and simply refuse access to the office until such time as it was able to reach agreement with the Member on how the actual search was to be conducted. Such a situation would be even more intrusive and disruptive than the Jefferson search itself.