Circuit Split Over Speech and Debate Clause

Yesterday, the U.S. Court of Appeals for the Ninth Circuit rejected former Representative Richard Renzi’s effort to escape prosecution for alleged quid pro quo corruption. Rep. Renzi claimed he was immune from prosecution under the Constitution’s the Speech and Debate Clause. Specifically, Rep. Renzi claimed the federal government sought to prosecute him for privileged “legislative acts” and, in the alternative, that the indictment and prosecution improperly relied upon privileged “legislative act” evidence. The Ninth Circuit found none of these arguments convincing.

The Ninth Circuit’s opinion in United States v. Renzi, written by Judge Tallman, did not simply reject Rep. Renzi’s ambitious reading of legislative immunity under the Speech and Debate clause. It also rejected his reliance upon a broad reading of the clause’s evidentiary privilege adopted by the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building, a case arising out of the investigation of Rep. William “Cold Cash” Jefferson, who as found to have stashed several thousand dollars in his House office freezer. (More on that case here.)

A cert petition is virtually guaranteed. Not only is there a circuit split on the scope of the clause, there is also growing concern that the clause inhibits the investigation and prosecution of legislative corruption. Supreme Court review would not only resolve this split, but also provide federal investigators and prosecutors clearer guidance as to the degree of immunity the Speech and Debate Clause provides.

I’ve placed a few Renzi opinion excerpts below the fold.

The opinion begins:

Former Arizona Congressman Richard G. Renzi seeks to invoke the Speech or Debate Clause1 to preclude his prosecution for allegedly using his public office to benefit himself rather than his constituents. The indictment against him alleges that Renzi offered two private parties a quid pro quo deal. If they would buy private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Renzi—the Congressman promised to support future public land exchange legislation favorable to each.

Renzi denies the charges against him, but argues on interlocutory appeal that he is protected by the Clause from even the burden of defending himself. Specifically, he claims that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.”

We cannot agree. We recognize, as we must, that the Speech or Debate Clause is a privilege that “has enabled reckless men to slander and even destroy others with impunity.” United States v. Brewster, 408 U.S. 501, 516 (1972). But the Supreme Court has made equally clear that the Speech or Debate Clause does not “make Members of Congress supercitizens, immune from criminal responsibility.” Id. Because we cling to “the precise words” of the Court’s own Speech or Debate jurisprudence and “the sense of those cases, fairly read,” id., we conclude that Renzi’s actions fall beyond the Clause’s protections. We therefore deny Renzi the relief he seeks.

The Ninth Circuit rejected two of Rep. Renzi’s claims rather easily, relying upon existing precedent. For Rep. Renzi’s third claim, the Court considered and rejected the approach taken by the D.C. Circuit:

Renzi’s claim has its genesis—as it must—in the only case that has ever held that the Clause goes so far as to preclude the Executive from obtaining and reviewing “legislative act” evidence: the decision of the D.C. Circuit Court of Appeals in Rayburn. . . . Rayburn itself concerned a novel problem: the first execution of a search warrant on the congressional office of a sitting Member of Congress. Not surprisingly, Representative William J. Jefferson, the target of the search, eschewed his new position in the footnotes of history and brought a motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure seeking the return of all materials seized by the Executive.

The district court denied Jefferson’s motion but a panel of the D.C. Circuit Court of Appeals reversed. . . . Two of the three members of that panel reasoned that circuit precedent had already established that the testimonial privilege of the Clause precluded civil discovery of documentary “legislative act” evidence and saw no reason not to extend that rationale to the context of a criminal investigation. . . . The majority concluded “that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the Clause” because it serves to distract Members and their staffs from their legislative work. . . .

Simply stated, we cannot agree with our esteemed colleagues on the D.C. Circuit. We disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale. Rayburn rests on the notion that “distraction” of Members and their staffs from their legislative tasks is a principal concern of the Clause, and that distraction alone can therefore serve as a touchstone for application of the Clause’s testimonial privilege. . . .

the very fact that the Court has reviewed “legislative act” evidence on countless occasions—and considered cases in which such evidence had been disclosed to the Executive with nary an eyebrow raised as to the disclosure— demonstrates that the Clause does not incorporate a nondisclosure privilege as to any branch.

The opinion concludes:

In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege” that “has enabled reckless men to slander and even destroy others with impunity . . . .” Brewster, 408 U.S. at 516. Nevertheless, it has its limits. McMillan, 412 U.S. at 313 (“Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause.”). Despite Renzi’s best efforts to convince us otherwise, we agree with the district court that the alleged choices and actions for which he is being prosecuted lie beyond those limits. We affirm the district court’s denial of relief on each of the issues properly raised on appeal.