A federal appeals court ruled today for the U.S. Justice Department in a case that cuts to the heart of federal prosecutors' efforts to investigate potential corruption in Congress.
The decision came in the government's case against former Rep. Rick Renzi (R-Ariz.), who faces corruption charges in connection with an alleged quid pro quo. Prosecutors say Renzi held out the promise of federal mining rights to pressure a private company into buying an unrelated piece of land in a deal that would mean cash for Renzi.
Renzi, represented by lawyers from Steptoe & Johnson in Washington, wants the indictment against him thrown out. He says his actions fell within the constitutional protection afforded to legislative speech and activity, and that prosecutors improperly used his legislative activity as evidence before a grand jury.
But a three-judge panel of the U.S. Court of Appeals for the 9th Circuit disagreed. Its unanimous 45-page ruling today swept aside all the claims made by Renzi and his lawyers, affirming the pre-trial rulings made a federal district judge.
“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” of protected activity, the opinion concludes. Judge Richard Tallman wrote the opinion, joined by fellow 9th Circuit Judge Consuelo Callahan and U.S. District Judge Suzanne Conlon, sitting by designation. Click here (PDF) for a copy.
Lawyers who follow congressional ethics investigations have been watching the Renzi appeal closely for its potential impact on other cases. Congressmen have often invoked the Constitution’s “speech or debate” protection as they’ve battled Justice Department inquiries, and in 2007, the D.C. Circuit strengthened that protection when it ruled (PDF) on a search of the office of then-Rep. William Jeffersion (D-La.). In that case, the judges said executive-branch agents could not even review privileged materials without permission from Congress.
The opinion from the 9th Circuit is more favorable to the Justice Department. About one fourth of the opinion is devoted to disagreeing with the D.C. Circuit’s ruling in the Jefferson case, known as USA v. Rayburn House Office Building.
“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,” Tallman’s opinion says. A review of privileged materials, the opinion says, may be a distraction for lawmakers, but the executive branch still has the authority to investigate alleged bribery and other corruption.
The opinion goes on to say that, many times, the Supreme Court has itself reviewed evidence of legislative activity “to ascertain whether it was protected or not.” Like the Justice Department, the Supreme Court is part of a separate branch of government from Congress. So, the opinion says: “Were the Clause truly to incorporate a nondisclosure privilege, each of these disclosures would serve as an independent violation of the Clause. We decline to adopt a rationale that would require such a conclusion.”
Steptoe partner Brian Heberlig, who’s representing Renzi along with Reid Weingarten and others, said in an e-mailed statement: “We are disappointed by the ruling and are currently evaluating our options for further appellate review.”
Melanie Sloan, executive director of the nonprofit Citizens for Responsibility and Ethics in Washington, which often files complaints about lawmakers’ ethics, welcomed the decision.
“Today, the 9th Circuit upheld the Supreme Court’s previously stated view that the speech or debate clause was never intended to turn legislators into ‘super-citizens immune from criminal responsibility,’” Sloan said in an e-mailed statement. “Happily, the court soundly rejected Rayburn, putting legislators on notice that the 9th Circuit at least will not protect them should they engage in bribery or extortion.”
Sloan filed an amicus brief in the 9th Circuit in favor of the Justice Department. She said the issue may now head to the Supreme Court.
Last year, The National Law Journal reported on the potential implications of the Renzi appeal, including the possibility it would lead to a split with the D.C. Circuit.
A spokeswoman for the Justice Department said lawyers are reviewing the 9th Circuit’s opinion. Kerry Kircher, the U.S. House’s general counsel, whose office filed an amicus brief in favor of Renzi’s position, did not respond to a request for comment.
Updated at 8:15 p.m.