Category: Speech or Debate

        The House Bipartisan Legal Advisory Group (which consists of the Speaker, the Majority and Minority Leaders, and the Majority and Minority Whips) has filed an amicus brief in the Renzi case.   BLAG argues that the Department of Justice committed “clear violations of the Speech or Debate Clause” in connection with the wiretap of Congressman Renzi’s cell phone and in presenting evidence to the original grand jury that indicted Renzi (a new grand jury has since issued a superseding indictment).   

            As a consequence of these violations, BLAG contends that the court should “suppress all evidence secured as a direct or indirect result of the wiretap.”  It also maintains that the court should dismiss those portions of the superseding indictment (Counts 1-27 and portions of Count 42) which relate to Congressman Renzi’s involvement with private parties regarding legislative land exchanges “unless the Court, after a thorough review of all materials presented to the second grand jury, determines that the Department managed to extract completely all Speech or Debate material and all information derived from its earlier violations from its presentation to the second grand jury.” 

            In my next post I will analyze the House’s arguments relating to the presentation of evidence to the grand jury.

       The prosecution has responded to Congressman Renzi’s motion to dismiss the indictment based on the Speech or Debate Clause.  The most important question presented is whether Speech or Debate applies to Renzi’s communications with two outside groups—Resolution Copper and the Aries Group—regarding land exchange legislation the groups were seeking.  (There are also significant Speech or Debate issues relating to how the government gathered some of the evidence in the case, but these are not the subject of today’s post). 

            Renzi contends that these communications are an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.  Specifically, “[e]xtensive negotiations between the private landholder and the Member (or Members) of Congress are an essential and integral predicate to a successful land exchange.”  Renzi Motion at 17.  

            The prosecution’s response is somewhat complicated.  At the outset, the government relies (as expected) on the Supreme Court’s statement in Helstoski that “[a] promise to deliver a speech, to vote or to solicit votes at some future date is not ‘speech or debate.’  Likewise, a promise to introduce a bill is not a legislative act.”

 

However, rather than focusing solely on the fact that Renzi’s communications with Resolution Copper and the Aries Group related to future legislation, the government also emphasizes that these communications were part and parcel of Renzi’s alleged extortion scheme:

Renzi thus made promises—first to Resolution Copper and later to the Aries Group—to vote and solicit other votes for the respective land swap proposals in return for the purchase of the Sandlin property. . . . These promises for future votes were not legislative acts. . . . Renzi’s promises were integral to his broader acts of extortion against Resolution Copper and the Aries Group, acts which find no protection in Speech or Debate jurisprudence.

Government Response at 7.

Interestingly, the government concedes that some of the documents presented to the grand jury were protected legislative material. Government Response at 12 n.8. These documents evidently consist of internal congressional emails discussing and transmitting drafts of the land exchange legislation. By acknowledging that these emails are part of the legislative process, the government implicitly concedes that the drafting of legislation is protected activity.

On the other hand, the prosecution apparently maintains that when such internal congressional emails were forwarded to outside parties, they lost their protected status. It contends that “Renzi clearly consented to the distribution of emails and letters to third parties, and that consent takes those materials outside the protection of United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654, 663 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1738 (2008), even were those materials to fall within the definition of ‘speech or debate. . . . ’” Government Response at 13.

This aspect of the prosecution’s argument, at least, makes no sense. Renzi’s distribution of legislative materials to third parties enables the government to obtain those materials from the third parties without violating the Speech or Debate Clause, but it doesn’t have any bearing on whether the materials can be introduced as evidence against Renzi. The prosecution cannot use a document created or received by a third party if the document evidences a legislative act any more than it could have a third party testify about how Renzi voted.

What about the government’s contention that Renzi’s communications with Resolution Copper and the Aries Group were unprotected? If Renzi had told these groups that he would support the proposed legislation in exchange for a payment of money to Sandlin, such communication would clearly be unprotected under Helstoski. But that is not what happened. Instead, Renzi told these groups that he would support the legislation only if the Sandlin property were included in the land exchange. Unlike a promise to support legislation in exchange for a bribe, this statement would seem to be a facially legitimate part of the legislative process.

Of course, one might argue, as the government does, that conversations with lobbyists or other outside parties are not an integral part of the legislative process, and therefore do not merit protection under the Speech or Debate Clause. However, there are two difficulties with that position. First, there is authority in the Ninth Circuit, Miller v. Transamerican Press, to the effect that Speech or Debate protects a Congressman’s source of information from outside parties such as constituents or confidential informants.

Second, the process of drafting land exchange legislation would seem to necessarily involve communications with the private landowners who are to be exchanging land with the United States. Thus, as Renzi argues, these particular communications ought to be viewed as an integral part of the deliberative and communicative processes by which Members develop land exchange legislation, even if communications with interested parties about other types of legislation might not be.

Unlike the Stevens and Jefferson cases, which involve legislative matters only tangentially, the Renzi fact pattern goes to the very heart of open issues in Speech or Debate jurisprudence. This is a case that could very well end up in the Supreme Court.

          The Washington Post has a front page article today, above the fold, today on the Speech or Debate clause, which the reporter explains, “is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate scandal.”   

            One interesting revelation of the article is that the House Counsel’s office is seeking to file an amicus brief on behalf of the Bipartisan Legal Advisory Group in the Renzi case.  As I have noted, the government’s position in the Renzi case would inappropriately limit the scope of the Speech or Debate Clause.  Thus, it is not surprising that the House Counsel’s office would want to make its views known (though it is somewhat surprising that the BLAG was willing to intervene in such a politically controversial matter).

 

             

 

            Congressman Rick Renzi, currently facing federal trial on corruption charges, moved this week to dismiss the indictment based on the Speech or Debate Clause of the Constitution.  Renzi argues that the indictment is flawed because the grand jury relied on two types of information privileged under the Clause.  First, the grand jury relied on documents “referencing, describing, and directly involving the development of legislation” and “describing Members’ motivations for and performance of legislative acts.”  For example, the grand jury was presented with an email from one of Renzi’s aides to House Legislative Counsel stating: “[t]his is a very rough draft of a bill put together by an individual I am working with on a land exchange.  My boss wants to get this finalized and introduced next week.”  The grand jury was also presented with the actual draft legislation circulated between Renzi’s office and House Legislative Counsel. 

            Second, Renzi argues that the grand jury heard testimony from his former aides regarding matters protected by the Speech or Debate Clause.  For example, Joanne Keene, Renzi’s former Legislative Director, testified regarding the development of the “Resolution Copper land exchange” legislation, which Renzi introduced in May 2005.  Among other things, she described a communication with Renzi in which he expressed a reluctance to move forward with the legislation at that particular time.  Keene and another former aide also testified about internal congressional discussions regarding strategies for advancing land exchange legislation, such as whether Renzi or other Members would sponsor or co-sponsor particular bills, which Member should take the lead in moving a particular bill, and whether a bill should be scheduled for hearings first in the House or Senate. 

            One can anticipate that the government’s response to Renzi’s Speech or Debate argument will be similar to the position it has taken in the Ted Stevens case, where it has argued for a narrow construction of the Speech or Debate Clause.  The key legal issue would seem to be the applicability of the Clause to conduct and communications relating to future legislative acts.  In United States v. Helstoski, 442 U.S. 477, 490 (1979), the Supreme Court enunciated the following limitation on the protection of the Clause: “[I]t is clear from the language of the Clause that protection extends only to an act that has already been performed.  A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.’  Likewise, a promise to introduce a bill is not a legislative act.” 

            Read broadly, as the government is likely to do, this language may suggest that all activities and discussions preliminary to actual introduction of legislation are unprotected because they merely relate to future legislative acts.  However, Helstoski was referring specifically to a Member’s promise to perform a legislative act in exchange for a bribe.  Because the “compact” between the bribe-giver and the bribe-receiver is not part of the legislative process protected by Speech or Debate, the Helstoki Court reasoned that Speech or Debate could not protect the bribe-taker’s promise to perform a legislative act, which promise is, after all, merely half of the unprotected “compact.”

            In the Stevens case, the government argued that Helstoski leaves unprotected any discussions between a Member and constituents regarding potential legislation.  This assumes, however, that such discussions are not in themselves part of the legislative process.  As Josh Chafetz has asked, since other Supreme Court precedent suggests that preparatory research for a hearing or vote is protected by Speech or Debate, “why [should] not preparatory meetings or correspondence with constituents also be protected?”  J. Chafetz, Democracy’s Privileged Few 108 (2007). 

            The Speech or Debate Clause protects activities 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.”  Gravel v. United States,  408 U.S. 606, 624 (1972).  Surely this legislative sphere must encompass activities and discussions prior to the actual introduction of legislation.  Indeed, in the Stevens case, even the government itself acknowledged  that Speech or Debate covers activities “integral to the Member’s participation in the drafting, consideration, debate, and passage or defeat of legislation.”  (emphasis added). 

            Legislation does not appear out of thin air and deposit itself in the legislator’s hand, ready to be dropped in the hopper (the box on the House floor where legislation is introduced).  The need for the legislation may be the subject of hearings and informal fact-gathering by the Member and his or her staff.  The legislative language must be drafted, normally with the assistance of House Legislative Counsel.  Co-sponsors may be sought, and they, along with other interested parties, consulted about the proposed legislation.   

            At a minimum, internal congressional activities preparatory to the introduction of legislation, such as communications with House Legislative Counsel (which also may be attorney-client privileged, see 2 U.S.C. § 281a), would seem to be covered by the Speech or Debate privilege.  The same should be true of actual legislative drafting, discussions regarding the timing and manner of introducing legislation, and bargaining regarding sponsorship of or support for particular measures.  Since the Renzi grand jury was evidently exposed to a significant amount of such information (as well as to some information regarding the actual introduction of legislation), I think there is a substantial possibility that the Renzi case could be dismissed, in whole or in part, on Speech or Debate grounds.

             

 

       The prosecution’s motion in limine in the Stevens case lays out the evidence that it intends to introduce “concerning solicitations made by [VECO] and its executives or non-legislative acts taken by Senator Theodore F. Stevens or his staff in response to VECO’s solicitations.”  The government seeks a ruling in advance of trial that such evidence does not run afoul of the Speech or Debate Clause.  As I will suggest below, a significant amount of this evidence does in fact appear to violate the letter and/or spirit of the Speech or Debate Clause.

The prosecution’s evidence can be broken down into three categories. First, there is evidence regarding assistance requested from or provided by Stevens and/or his staff with regard to executive agencies or foreign governments. These matters involve interventions by Stevens or his office in furtherance of VECO’s business interests. For example, in 1999 Stevens allegedly arranged a meeting between VECO and FEMA “for VECO to attempt to obtain a federal contract, through FEMA, to do rebuilding in the former Yugoslavia.” Similarly, in 1999 Stevens and VECO President Allen are said to have traveled to Sakhalin Island to meet with Russian officials as part of an effort by VECO to obtain contracts from the Russian government.

Generally speaking, this type of “constituent service” is not covered by the Speech or Debate Clause. Although the courts have recognized that it is common and appropriate for Members of Congress to perform a variety of services on behalf of their constituents, these services do not fall within the “legislative sphere” protected by the Speech or Debate privilege.

The second category of evidence relates to requests for assistance which appears to be legislative in nature. For example, in 2004 Allen allegedly wrote to Stevens seeking a $5 million earmark in one of the FY 2005 Appropriations Bills.

Here the prosecution’s theory is that although the assistance requested is legislative in nature, the request itself is not. The government relies primarily on United States v. Helstoski, 442 U.S. 477, 489 (1979), which held that a promise to perform a legislative act in the future is not a legislative act. Thus, in a bribery case the government can show that the bribed official agreed to perform a legislative act in exchange for money so long as it introduces no evidence regarding the actual performance of the legislative act. The government argues that “[i]f a Member’s agreement to perform a future act is not privileged, it logically follows that a constituent’s request for assistance is not shielded by the Clause either. A Member cannot agree to perform a future official or political act if a constituent has not asked for one.”

The government also relies on cases which hold that the Speech or Debate Clause does not apply to communications outside the “halls of Congress.” An example would be Hutchinson v. Proxmire, 443 U.S. 111 (1979), which held that the Speech or Debate Clause did not protect a Senator against defamation claims relating to statements made to the press or the general public.

The government’s theory raises fundamental questions about the scope of the Speech or Debate Clause. Although it is true that the case law it cites contains broad language limiting the reach of the Clause’s protections, that language has been applied in the specific context of bribery or defamation-type cases. Under the government’s theory, this language could be used to eviscerate the Clause’s protections entirely. For example, while the government could not introduce evidence that Stevens voted to approve the FY 2005 earmark in question, it could introduce evidence of (a) any requests made by VECO or others that Stevens support this earmark, (b) any discussions that Stevens may have had regarding the earmark in advance of the actual vote, and (c) any communications that Stevens made “outside the halls of Congress” regarding the vote after it occurred. It is difficult to see what would be left of the privilege at that point.

The final category of evidence relates to actions and communications relating to a major public policy issue in the State of Alaska, the construction of a natural gas pipeline within the state. This issue evidently involved a complex interaction between state and federal jurisdiction, and required both federal and state legislation, as well as other governmental actions, to resolve.

The government’s theory here, consistent with its views with regard to the earmark, is that all of the evidence relating to this category, except perhaps direct evidence of how Stevens voted on the federal enabling legislation, is beyond the scope of Speech or Debate. Thus, “when Senator Stevens provided VECO with e-mail communications, status reports, and other forms of updates concerning the federal enabling legislation dealing with the natural gas pipeline,” these communications were unprotected by Speech or Debate. Similarly, communications or actions by Stevens and his staff relating to the state legislation that was required in order to implement the federal enabling legislation would also be unprotected. An example would be a speech given by Stevens on July 7, 2006 to the Alaska Senate Energy and Natural Resources Committee in which he urged the committee to pass the pipeline legislation in order to prevent the pipeline project from being crippled. The government argues that this speech is unprotected both because it was made outside the halls of Congress and because it addressed state, not federal, legislation.

I find this troubling for several reasons. If the Speech or Debate Clause means anything, one would think that it means that the government cannot prosecute a Member of Congress for the legislation that he has supported and the policies he has advocated in his official capacity. But under the government’s theory, unless the Member’s statements and activities remain hermetically sealed within the halls of Congress, the privilege is of little effect.

Furthermore, the natural gas pipeline is far from the type of constituent service where a Member of Congress seeks to provide assistance to a single company or a few individuals. This was a matter of major economic interest to Alaska as a whole. It involves a major piece of federal legislation that Senator Stevens sponsored and pushed through Congress. Given the close connection between this legislation and the state legislation it required, it would be difficult to “question” Stevens’ involvement in the latter without implicating his role in the former. As Stevens explained in a March 9, 2007 speech to the Alaska legislature:

Given the current climate in Washington, D.C., it is vitally important for our Congressional delegation to work closely with you. Alaska succeeds when Alaskans work together.

The first test of our partnership begins with the gas pipeline. Alaska’s gas resources – 35 trillion cubic feet of natural gas, an estimated 200 trillion cubic feet of conventional gas resources, and 32,000 trillion cubic feet of gas hydrates – will help chart the course for the next generation of energy development in our country.

Our pipeline authorization process, which began with passage by Congress of the Alaska Natural Gas Pipeline Act in 2004, must overcome many hurdles before the first pipe is laid.

*

Before construction can begin, our pipeline must go through several permitting processes, including approval by this state, FERC, and, perhaps, action by Canada. The timeline for our approval of the gas pipeline is very short. It is imperative that we act this year.

I met with Governor Palin in Washington and am encouraged by her efforts thus far. It is my hope that your review of Governor Palin’s plan will be completed as soon as possible. When the state has acted, our delegation will do all we can to accelerate federal review of the final design, precise location, and approval of the project, which will take time.

As this indicates, the pipeline project was an integrated effort involving Alaska’s congressional delegation as well as the Governor and state legislature. Even if part of this effort, such as Stevens’ communications with the Alaska legislature in support of the state legislation, is arguably unprotected by the Speech or Debate Clause, there is no way that the government could introduce evidence regarding isolated parts without implicating the whole.

Indeed, the reason that the prosecution seeks to introduce this evidence in the first place is to show that Stevens’ actions on the pipeline were taken on behalf of or for the benefit of VECO. In order to defend against this implication, Stevens will be required to put on evidence regarding the entire project, including the aspects that are clearly within the legislative sphere. The effect will be to have a mini-trial regarding the merits of Stevens’ legislative agenda with regard to the pipeline project, tried before a Washington, D.C. jury (if the government succeeds in fighting Stevens’ motion to move the trial to Alaska) disinterested in, if not actively hostile to, the Alaskan economic interests at stake. Such a spectacle would seem to strike at the very core of the protection the Speech or Debate Clause was intended to provide.

IMHO, the court should reject the prosecution’s attempt to introduce evidence in categories 2 and 3. In fact, given the peripheral nature of the point the government is trying to make (that Stevens’s relationship with VECO establishes his motive and intent with regard to omitting matters from his financial disclosure statement), it could be argued that all or almost all of this evidence is more prejudicial than probative. The government should have no need to establish anything beyond the (presumably uncontested) fact that VECO and Allen sought assistance from Stevens and his office on various occasions during the relevant time period.

 

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.

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 9^th 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 9^th 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.

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.

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.   

           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.