The Volokh Conspiracy

This week, former Congressional aide William Heaton was sentenced to two years probation for his participation in a corruption scheme involving former Rep. Bob Ney (R-OH), for whom he worked, and Jack Abramoff. According to he Washington Post Heaton "avoided jail time because of his unusual role in helping the FBI and the Justice Department convict his former boss." This "unusual role" consisted of wearing a wire and recording telephone conversations he had with Rep. Ney.

Over at Stubborn Facts, Pat ponders the implications of the D.C. Circuit's decision in the Rep. Jefferson case for the recording of conversations among legislators and their legislative staff.

Heaton also turned over documents from Ney's office and recorded colleagues in Ney's office. He taped many phone calls, and wore a wire for a particularly crucial 2 1/2 hour one-on-one conversation with Ney.

Part of Ney's criminal actions involved agreeing to insert false and misleading information into the Congressional Record. Under the speech & debate clause, Ney's actions in actually inserting the material into the Record would be inadmissible. Because of that, Heaton's taped confirmation of Ney's agreement to insert the false material was very important to the case.

Heaton conducted this taping, and turned over documents, while he was still Congressman Ney's chief of staff. As regular readers know, I recently opined that the decision from the U.S. Court of Appeals for the District of Columbia regarding the search and seizure of documents within Congressman Jefferson's office was both impractical and wrong on the law. However, given that the decision is currently the law in the District of Columbia (where Heaton and Ney were prosecuted), prosecutors should be very glad that Ney plead guilty before that case came down. . . .

Heaton turned over documents from Ney's Congressional office to prosecutors, without any review by Ney. Maybe none were privileged, maybe some where, maybe all were. Under the DC Appeals Court ruling, Congressman Ney would be entitled to review all such documents before they were turned over. The ruling did not hinge on the place being searched (a Congressional office in the Capitol) but on the exposure of the Executive to privileged legislative materials.

I would imagine that the same logic would apply to conversations between Ney and his staff. The speech and debate clause privilege, like executive privilege, is not precisely defined. Just as the executive privilege protects confidential discussions between the President and his closest aides, so too does the speech and debate clause privilege likely protect at least some communications between a Congressman and his top aides. After all, they often speak with each other through their respective staffs. Under the reasoning of the Jefferson court, it is impermissible for the Executive Branch to be exposed to such privileged communications prior to review by the Congressman for an opportunity to assert privilege, followed by an in camera review by a judge to review the claim of privilege.

Frankly, I think this situation sheds further light on the flaws of the Jefferson opinion. But until overruled or limited by a rehearing or by the Supreme Court, that's the law of the District of Columbia circuit. Under its logic, the FBI's use of Congressman Ney's chief of staff to disclose Ney's official documents and record his confidential communications with his own staff were improper.