Rahm Emanuel’s Peculiar Resignation

            By letter dated January 2, 2009 (although apparently released earlier in the week), Rahm Emanuel informed Illinois Governor Rod Blagojevich that “I am writing to resign my position as United States Representative from the Fifth Congressional District of Illinois, effective January 2, 2009.” 

            What is odd about this letter is that January 2 was the last full day of Emanuel’s term as Representative in the 110th Congress, which expired at noon on January 3.  As I pointed out previously, there was little reason for Emanuel to resign his seat in the 110th Congress since that seat could not be filled by a special election in the remaining time.  It is hard to understand why Emanuel would resign his seat one day before his term expired. 

            Even more surprising, the letter does not explicitly state that Emanuel is resigning his seat in the 111th Congress.  Resigning his position as Representative on January 2 would not, at least read literally, have any effect on Emanuel’s status in the 111th Congress.  The letter speaks of resigning only one “position” and, on January 2, his “position” was that of United States Representative in the 110th Congress.  With regard to the 111th Congress, Emanuel was not a “Representative” or a “Member,” but a “Member-elect.”  

Moreover, had Emanuel intended to refer to his seat in the 111th Congress, one would expect him to have used a less ambiguous term than “resignation.”  Technically, it is arguable that a Member-elect does not “resign” at all, but simply declines to take the oath or accept the seat.  See J. Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177, 188, 216-18 (2008) (discussing the distinction).  For example, when Newt Gingrich decided in November 1998 that he would leave Congress at the end of the 105th Congress, he informed the Governor of Georgia that he had “withdrawn” and would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress.” 

Emanuel clearly expects that everyone will understand his letter to be statement of intent not to take his seat in the 111th Congress.  Perhaps then his letter merely reflects sloppy drafting.  Or could he have deliberately set out to create an ambiguity with regard to his status in the 111th Congress?

Is Hillary Clinton Unconstitutional?

          On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides “[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007 and ending at noon of January 3, 2013.”  

            This law, of course, is the so-called “Saxbe fix,” which in this case is intended to obviate objections to the constitutionality of appointing Senator Hillary Clinton as Secretary of State.  Because the salary of the Secretary of State was raised in January 2008 (by approximately $4,700 to $191,300) and Clinton was elected for a (second) term in the Senate from January 3, 2007 to January 3, 2013, her appointment would violate the Emoluments Clause absent this fix. 

            It should be noted that the January 2008 pay raise resulted from a procedure established by a statute, 5 U.S.C. § 5303, enacted before Senator Clinton was in Congress.  Under this law, the salaries of federal employees, including the Secretary of State, are increased annually according to a cost of living formula unless the President certifies that such an increase would be inappropriate.  The Executive Order issued pursuant to this statute did not make such a certification so the pay raise went into effect. 

            Professor Tribe, among others, argues that the 2008 pay increase does not implicate the spirit of the Emoluments Clause because “the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote.”  Since Clinton played no role in the pay increase, the theory goes, there is no reason why it should affect her eligibility for appointment.  As Professor Sandy Levinson puts it, “no serious argument can be made that preventing [Clinton’s] nomination would relate to the purposes (preventing self-dealing or corruption) of the initial clause.” 

            There are several problems with this argument.  First, the Emoluments Clause is a prophylactic rule that applies regardless of whether the Member voted on, or even voted against, the pay raise for the office in question.  Whether it was to prevent clever forms of self-dealing or corruption or whether it was to incentivize Members to limit pay increases, the Framers wanted the disability to apply regardless of whether the Member had any responsibility for the pay raise in question. 

            Second, it may be an overstatement to say that the 110th Congress bore no responsibility for the pay raise since Congress was responsible for approving the budget and appropriating the funds for the pay increase.  Third, if the use of automatic pay increases were recognized as a means of circumventing the Emoluments Clause, this would give Members an incentive to adopt such pay increases, which would seem to be the opposite of what the Clause was attempting to accomplish. 

            Finally, the text of the Emoluments Clause simply requires that there have been an increase in emoluments during the relevant time and does not specify how the increase must come about.  Thus, even Professor Tribe apparently acknowledges that the Clause applies to Senator Clinton,  If this is so, it is difficult to see how the Saxbe Fix becomes any more effective merely because of the automatic nature of the pay increase. 

            Because, as I previously argued, the Saxbe Fix does not effectively remediate the violation of the Emoluments Clause, Hillary Clinton is in fact unconstitutional.  (see Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) and this post on the Volokh Conspiracy).  So, in fact, is Senator Ken Salazar, who will be nominated as Secretary of the Interior, and possibly Representative Hilda Solis, who will be nominated as Secretary of Labor (although in the latter case this depends on whether there is another pay increase which occurs while she is serving in the 111th Congress, which began earlier today). 

            As Professor Tribe notes, it may very well be that no plaintiff will ever have standing to contest in court the constitutionality of any of these appointments.  However, Tribe asserts that President-elect Obama would not violate the Emoluments Clause and his constitutional oath merely because “the institutional limits of the Article III Judicial Branch would let him get away with a violation of that oath.”  Tribe contends that this would “hardly satisfy the constitutional conscience of a chief executive as dedicated to the to the Constitution as President-elect Obama, who reveres the Constitution as something more than the sum total of judicially enforceable restraints on government power.” 

            So President-elect Obama really cares about the Constitution, unlike some presidents that Tribe is too diplomatic to mention, and will comply with its restraints even when it is inconvenient to do so.  Of course, in this case it turns out, somewhat conveniently, that President-elect Obama interprets the Constitution to allow him to do what he wants to do, but I am sure that is just a happy coincidence.   

Can the Senate Constitutionally Refuse to Seat Roland Burris?

            This article from ABC News highlights an issue I noted several weeks ago when it questions whether the Senate actually has the power to refuse to seat Roland Burris as a Senator from Illinois.  The Senate has (or at least has previously asserted) the power to refuse to seat an appointee if it finds that the appointment was the result of fraud or corruption.  In this case, however, the Senate evidently has no basis for such a finding.  As Jan Baran notes, the Senate could claim that there needs to be an investigation before seating Burris, and thereby stall things for awhile.  But in the absence of any evidence that Burris obtained the appointment through fraud or corruption, this would be a constitutionally questionable act. 

            Conceivably, Burris could challenge the Senate’s refusal to seat him through a lawsuit against the Senate officer responsible for paying him (as was done in Powell v. McCormack).  This case would be distinguishable from Powell because the latter involved the power to judge a Member’s qualifications, whereas the Burris case would involve the power to judge a Member’s “election.”  But it is far from clear that the use of the election-judging power to exclude an appointee would be exempt from judicial review, particularly in circumstances where there was no prima facie evidence that the appointment was invalid.

Is Emanuel Delaying his Resignation so that His Staff Can Find New Jobs?

          The Hill had a report yesterday regarding the “two hats” worn by Rahm Emanuel, namely (1) his presidential transition job in which he “is calling the shots for what will soon be the Obama White House” and (2) his job as a Member of Congress.  The first job is unpaid, although is evidently occupies most or all of his time; the second job is paid, although he is no longer performing it.  

            The story quotes an Emanuel spokeswoman as saying that the timing of his resignation has not been decided.  According to a source in another leadership office, “the understanding is that Emanuel has delayed resigning his House seat in order to allow his staff to look for jobs and keep getting salary and benefits.” 

            This is a peculiar explanation.  Under House rules and federal law, once a Representative resigns his seat, the Clerk of the House supervises the staff and manages the vacant office, and the staff remains on the payroll at the same salary (see 2 U.S.C. §92b).  Thus, it is not like Emanuel’s resignation would leave the staff immediately unemployed.

           

            It is true that once a special election occurs, many or all of the Emanuel staffers may be out of a job.  But even if Emanuel had resigned immediately, it is unlikely that a special election would have been held until early 2009.  For example, when Speaker Hastert (who was the Representative from Illinois who most recently vacated his seat) resigned on November 26, 2007, the special election to replace him was not until March 2008.  This would surely give the staff enough time to find other employment. 

            In short, it seems unlikely that Emanuel’s resignation timing is being driven by his staff’s need to find other employment.

The Emoluments Clause and the “Saxbe Fix”

          The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.”  In plain English, this means that if Senator X is elected in 2006 for a term to run from 2007-2013, and the salary or benefits for a federal office are increased during that term (say in 2008), he or she cannot thereafter (say in 2009) be appointed to that office until the expiration of the term (i.e., in January 2013). 

            From time to time, however, it transpires that a President would like to appoint to federal office a Senator or Representative who, on the face of it, would appear to be disqualified from appointment under the Emoluments Clause.  Naturally, in such situations the President, having taken a solemn oath to protect and defend the Constitution, will regretfully select another well-qualified nominee for the position. 

            Just kidding.  What most presidents have done in that situation is to employ something called the “Saxbe fix,” so-called after Senator William Saxbe, who was appointed by President Nixon as Attorney General in 1973.  The Saxbe fix is legislation that repeals the pay raise (or other benefit increase) for the office in question so that the appointee will receive the same emoluments as the office provided at the beginning of his or her congressional term.  This roll-back provision, it is argued, satisfies the literal requirement of the Emoluments Clause because the emoluments are now the same as they were at the beginning of the time for which the appointee was elected and thus have not, in a sense, increased. 

            Certainly there are contexts in which this construction of the term “increased” would be perfectly reasonable.  For example, if one were asked if the stock of IBM increased today, one would reasonably construe the question to mean whether the closing price was higher than the opening price, rather than whether the price rose at any point during the day (to which the answer would certainly be yes). 

            Yet there are other contexts in which this construction seems unreasonable.  For example, Article II (section 1, clause 7) of the Constitution provides that the President shall receive “a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected.”  Surely this provision would be violated if the President’s compensation were both increased and decreased during his term, even though the compensation rate at the beginning and end were identical. 

            One might say that the presidential compensation clause is ambiguous but must be read in light of its purpose (presumably to prevent manipulation of the president’s compensation for political purposes).  Yet this does not seem quite right.  Even without knowing the specific rationale behind the clause, it is reasonably apparent that it does not permit a series of increases and decreases that cancel each other out.  For one thing, if the Framers had so intended, they could have simply provided that the compensation at the commencement of the period for which the president was elected would be identical to the compensation at the conclusion of such period.  Thus, the presidential compensation clause unambiguously prohibits offsetting increases and decreases.

           

The Emoluments Clause presents a similar structural issue. If the Framers had intended merely to ensure that the emoluments of the executive office in question were no greater at the time of appointment than they were at the time of commencement of the appointed Member’s term, the Clause could have, for example, stated “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time unless said Emoluments shall subsequently have been decreased by at least an equivalent amount.”

The hypothetical language above was suggested by Professor Larry Tribe, a supporter of the Saxbe fix, who acknowledges that the absence of such an “escape clause” in the Constitution poses some difficulties for his position. Professor Tribe writes that “[s]omewhat troublesome for [supporting the constitutionality of the Saxbe fix] is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time.” In contrast, Tribe notes, the constitutional prohibition on accepting gifts or emoluments from foreign states “includes within its text [an] escape clause” allowing Congress to give its consent to the gift or prohibition. However, Tribe argues that this constitutional silence is of limited significance to the Emoluments Clause because the wording of the needed escape clause would be “singularly peculiar.”

However, if the Framers were concerned merely about the possibility that a Member might benefit (or expect to benefit) from a pay raise enacted during his congressional term, the most direct and intuitive way to address the problem would be simply to prohibit the Senator or Representative from receiving the increase. The Clause would thus read something like this: “No Senator or Representative who shall, during the Time for which he was elected, be appointed to any Civil Office . . . shall receive any encrease in Emoluments which have happened during such Time.”

There is nothing “peculiar” about such a direct prohibition on receipt of a financial benefit. Indeed, when the Framers wanted to place direct limitations on compensation or emoluments, they were well aware of how to do so. The presidential compensation clause is one example. Another is the 27th Amendment (which, while not ratified until 1992, was proposed in 1789). This amendment provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The fact that the Emoluments Clause is structured as a disability or disqualification to office, rather than simply a limitation on the emoluments that a Member can receive, hardly seems likely to be the result of mere inadvertence

Of course, no one can say for sure whether the Framers considered or even thought of the idea of structuring the Emoluments Clause in a way that would explicitly permit a Member to be appointed despite a prior increase in emoluments. One can say with a fair degree of certainty, however, that such an alternative structure would have been vigorously objected to by at least a significant number of those who debated, drafted and ratified the Constitution.

The initial proposal at the Constitutional Convention was to prohibit Members of Congress from being appointed to any civil offices during the time for which they were elected (and for a one-year period thereafter). This provision was supported by anti-Federalists such as George Mason and Elbridge Gerry on the theory that the prospect of such appointments would cause Members of Congress to become more oriented toward expanding the scope and power of the federal government, and less toward protecting the interests of their states. These delegates were particularly, but not exclusively, concerned with the possibility that the executive would use the power of appointment to corrupt Members of Congress.

Other delegates, such as James Madison, believed that the costs of a total prohibition on appointment of Members outweighed the benefits. Madison acknowledged that allowing such appointments had the potential for conflict of interest and exercise of undue influence by the executive, but felt that these concerns were not sufficient to justify a total ban on appointments, which he believed would be a disincentive to service in the federal legislature. Instead, he proposed a compromise to bar appointments only for offices that had been created or for which the emoluments had been increased during the time for which the member in question had been elected. Madison argued that the “unnecessary creation of offices, and increase of salaries, were the evils most experienced & if the door was shut agst. them, it might properly be left open for the appointt. of members to other offices as an encouragmt. to the Legislative service.” Although some anti-Federalists thought Madison’s proposal did not go far enough to prevent corruption, the Convention adopted his amendment.

As John F. O’Connor demonstrates in his article, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, the fact that the Emoluments Clause is a disability to appointment, rather than a mere prohibition on increased emoluments, better serves the Anti-Federalist purpose of minimizing the growth of government. This is because a disability tends to encourage Members of Congress (to the extent that they hope to be appointed to federal offices) to vote against any pay raise, while a mere prohibition on receiving increased emoluments does not. The structure of the Clause as a disability, rather than a limitation on compensation, therefore must be viewed as integral to the compromise that was struck, rather than as simple inadvertence or peculiarity or phrasing.

For this reason the Emoluments Clause cannot be circumvented by means of the Saxbe fix. While in hindsight it may be apparent that the Clause has not been an effective tool for limiting the size and cost of the federal government, the appropriate “fix” for this problem is to repeal the Clause (or, better yet, to substitute more effective constitutional limitations on the growth of government). It is not justification for ignoring the Clause’s express dictates.

Can Joe Biden Be Vice President and Senator at the Same Time?

 

            ABC News asks “Why Hasn’t Joe Biden Resigned His Senate Seat?”  Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a seat in the Senate (or House).  Specifically, Seth Barrett Tillman argues that the Incompatible Offices Clause (U.S. Const., art. I, § 7, cl. 2), which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” is inapplicable to the President or Vice-President because they do not hold offices “under the United States.”  Although Tillman’s argument is focused on the presidency, it would seem to allow Biden to remain a Senator while serving as Vice-President.   

            There are a number of very strong arguments against Tillman’s theory, of which unbroken historical practice is just one.  Professor Steven Calabresi lays out many of these arguments in a recent debate with Tillman.  One particular problem for a Vice President/Senator would be Article I, § 3, cl. 4, which provides that the “Vice President shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  Does this mean that Vice President Biden would be unable to vote in his capacity as Senator Biden? 

            Nonetheless, perhaps Senator Biden wants to chew on this awhile before making a final decision on whether to give up his Senate seat.  After all, Senator Obama rushed into his resignation and look how much trouble that caused . . . .

Rahm Emanuel’s Resignation Calculus

 

           While most of America is worrying about losing a job, there is at least one person who has to worry about having too many.  That would be Rahm Emanuel, who currently holds at least three different titles and responsibilities.  He is a Member of the 110th Congress, representing the 5th Congressional District of Illinois.  He is a Member-Elect of the 111th Congress, having been re-elected in November to that seat.  He is President-elect Obama’s designee for White House Chief of Staff, a position he will formally assume sometime after January 20, 2009.  In the meantime, Emanuel presumably has significant responsibilities for the presidential transition.  

            Emanuel cannot serve as WH Chief of Staff and be a Member of Congress at the same time due to the Incompatible Offices Clause of the Constitution, which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  This clause was designed, according to Federalist No. 76, to protect against “the danger of executive influence upon the legislative body.”   

To comply with the Incompatible Offices Clause, Emanuel will have to resign his seat in Congress before assuming the office of COS.  For purposes of this discussion, we will assume that there is nothing constitutionally, legally or ethically problematic with regard to the de facto authority that Emanuel exercises in the presidential transition (while at the same time serving in Congress). On that assumption, there is no particular obligation on Emanuel’s part to resign prior to January 20.   Instead, his decision on when to resign is presumably based on political and personal factors.

Emanuel’s replacement will be chosen in accordance with the House Vacancies Clause of the Constitution, which provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Unlike Senate vacancies, which may filled temporarily by the Governor’s appointment, House vacancies can only be filled by special election. Article 25-7 of the Illinois Election Code provides that “[w]hen any vacancy shall occur in the office of representative in congress from this state more than 180 days before the next general election, the Governor shall issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy.”

Emanuel has not and probably will not resign his seat in the 110th Congress. This is understandable because it would have been virtually impossible for Illinois to hold a special election to fill his seat within the time remaining in the 110th Congress. Retaining his seat, in addition to allowing him to collect his congressional salary and use his congressional office and staff, permits Emanuel to continue to represent the people of his district during the remainder of the Congress. Given the extended lame duck session and the significant legislative issues that are still before the Congress, this decision makes perfect sense.

On the other hand, it is more puzzling as to why Emanuel has not yet resigned his seat in the 111th Congress. House precedents allow a Member-elect to resign his seat prior to start of the Congress for which he was elected. Thus, Emanuel could have resigned immediately upon deciding to take the COS position. He also could have resigned effective at a future date, e.g., January 20, 2009. Whether or not to treat these resignations as creating an immediate vacancy for purposes of the Illinois election code would have been an issue of Illinois law, and would have been a question for Governor Blagojevich to resolve. It is difficult to see, however, why Emanuel would delay his resignation unless he had some reason for postponing or, alternatively, for retaining control over the date of the special election.

Of course, this calculus changed when Governor Blagojevich was charged by federal authorities with various felonies, including allegedly attempting to sell Illinois’s vacant Senate seat. Now Emanuel presumably does not want the Governor to be issuing a writ of election for his seat if it can be avoided. Apart from the poor atmospherics of having the Governor involved in filling a congressional vacancy, Emanuel may be concerned that the Governor could manipulate the process by, for example, declaring the special election within an unreasonably short time.

As long as Blagojevich remains Governor, Emanuel has a conundrum. He could take the oath of office for the 111th Congress on January 6, and hope that Blagojevich is removed from the Governorship by January 20. Alternatively, he could not take the oath of office on January 6, but argue that the House should not consider the seat to be vacant due to the extraordinary circumstances presented. (He could then act as COS and yet continue to delay the special election indefinitely). This would be a somewhat far-fetched position, though no more so than the Illinois Attorney General’s attempt to have the courts declare the Governor incapable of carrying out his duties because of his legal troubles.

If, on the other hand, Blagojevich resigns in the next few days, one would expect that Emanuel would resign from the 111th Congress immediately thereafter, so as to allow the new Governor to call a special election and to ensure that the people of the 5th Congressional District of Illinois are without representation for as little time as possible.

A Seventeenth Amendment Problem in Illinois

           Today’s events in Illinois raise some really interesting questions under the Seventeenth Amendment.  This amendment established popular election of Senators (who previously were elected by state legislatures) and made the following provision for filling of vacancies: 

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. 

Acting pursuant to this authority, the Illinois legislature has provided that “[w]hen a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.” 

            Thus, when Barack Obama resigned his Senate seat in November (having decided to pursue other opportunities), the Governor of Illinois was empowered to make a temporary appointment until the general election of 2010.  Unfortunately, it appears that Governor Blagojevich may have decided to sell the vacant seat to the highest bidder, something frowned upon by Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois and notorious goody two-shoes. 

            Anyway, the Illinois legislature now intends to meet next week to pass a bill providing for a special election to fill the vacancy.  Presumably, this law will also take away the Governor’s authority to make temporary appointments.  If the law were to pass before the Governor took any action on the vacancy, I would guess that it would be effective.  After all, nothing in the Seventeenth Amendment would seem to prohibit a legislature from exercising its authority after a vacancy has occurred. 

            On the other hand, if Blagojevich were to make a temporary appointment before a new law is passed, the appointment would be valid, and it seems unlikely that anything in the new law could undo the appointment.  State legislatures do not have the authority to recall or remove U.S. Senators.  It is conceivable that the Senate could refuse to seat Blagojevich’s appointment, but it is not apparent that it would have a legitimate constitutional basis to do so.  Assuming that the Senate’s authority to judge elections extends to judging appointments, it could reject the appointed Senator only if the appointment itself were tainted by fraud or corruption.  The fact that Blagojevich himself is (allegedly) a crook would not be enough.  (Were Blagojevich to appoint himself, however, the Senate would have an arguable basis for refusing to seat him, and could certainly proceed against him under the Disciplinary Clause.) 

            The more difficult question is whether the Illinois legislature could shorten the term of the appointed Senator by moving up the time of the election.  On its face, the text of the Seventeenth Amendment does not prohibit this.  But one could argue that the Seventeenth Amendment provides for a temporary appointment to serve for a specific period identified by the legislature, and that once the appointment is made the Senator has a vested right to serve for that period.  Otherwise, the legislature would retain a power over the appointed Senator, and could shorten the term if it disapproved of his or her service.  As far as I know, this would be a question of first impression. 

            Finally, it should be noted that Blagojevich retains a significant amount of power with regard to any legislative attempt to amend the law.  Although the Seventeenth Amendment gives the legislature power with regard to filling vacancies, it is established that this power does not displace the role that may be played by the state executive in enacting legislation.  Thus, any new law must be presented to the Governor, as required by the Illinois Constitution, who may consider it for up to 60 days before deciding whether or not to veto it.  In short, unless Blagojevich decides to heed calls for his resignation, this could go on for awhile.

Was the Renzi Wiretap Unconstitutional?

          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.

House’s Speech or Debate Position in the Renzi Case

         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.