Don’t Tape Me Bro!

According to The Hill, Congressman Renzi plans to raise Speech or Debate objections to the FBI’s interception of some of his telephone calls.  No doubt his attorneys will rely primarily on the DC Circuit’s decision in the Jefferson case.  As I noted previously: 

The extension of the DC Circuit’s decision to electronic surveillance also seems logical.  If the Speech or Debate Clause forbids the FBI from conducting a search that might cause it to see Speech or Debate privileged documents, it is not obvious why the same principle [would not] forbid[] it from listening in on conversations that might contain a Speech or Debate privileged discussion.  Of course, under the logic of the DC Circuit’s opinion, the FBI could record the conversations (without listening to them) and then send the tape to the Member to separate the privileged from the non-privileged portions, but the Justice Department might view this as a tad problematic from an investigative standpoint.  

Renzi’s case is in federal court in Arizona and one can expect that these issues might end up in the 9^th Circuit (quite possibly before trial, since Renzi would have an immediate right of appeal with respect to any adverse decision).  There is very little Speech or Debate precedent in the 9^th Circuit (the only case I can think of is Miller v. Transamerica Press, Inc., 709 F.2d 524, 528-29 (9th Cir. 1983), which denied a motion to compel testimony from a former congressmen), and it is anybody’s guess how that court might rule.