Lawyers for the U.S. House of Representatives say a recent appeals court ruling threatens to weaken "a majestic constitutional provision" that protects lawmakers from pressure by the executive branch.
The office of House General Counsel Kerry Kircher is supporting a rehearing of the ruling, which came in the criminal case of former Rep. Rick Renzi (R-Ariz.). The June ruling by three judges of the U.S. Court of Appeals for the 9th Circuit limited Renzi’s ability to invoke the Constitution’s “speech or debate” clause, which says lawmakers “shall not be questioned” outside the House or Senate for their legislative activity.
Renzi’s legal team from Steptoe & Johnson and Nixon Peabody in Washington has asked for a new hearing en banc — a hearing that Kircher and his colleagues argue is necessary to preserve Congress’ independence. The three-judge panel’s opinion “radically departs from existing law,” the House lawyers write in an amicus brief filed late on Monday.
A central issue in the case is whether the “speech or debate” clause prohibits employees of the executive branch — such as FBI agents — from reviewing and using as evidence private legislative documents and conversations when they don’t have permission to do so. The 9th Circuit panel said it does not, disagreeing with a 2007 ruling from the D.C. Circuit.
Kircher’s team writes that the circuit split, if left as it is, creates an untenable situation for members of Congress.
“For example, if the panel opinion stands,” they write, “the legislative records of members who represent congressional districts in the Ninth Circuit will be constitutionally protected in Washington, but not in their congressional districts, whereas the legislative records of members who represent congressional districts outside the Ninth Circuit will be constitutionally protected both in Washington and in their districts.”