Was the Renzi Wiretap Unconstitutional?

          Another critical Speech or Debate issue in the Renzi case involves the wiretap on a cellular phone used by Renzi.   The Arizona federal court authorized the wiretap for a 30-day period from late October to late November 2006.  The wiretap order required the monitor to stop listening when a conversation “relates directly to legislation pending before the United States Congress,” but provided that such conversation would still be recorded and placed in a sealed envelope for later review by an independent group of investigators or prosecutors.  Moreover, the order explicitly excepted conversations related to the land exchange legislation under investigation; these conversations were to be fully monitored and reviewed. 

            Renzi, with the support of the House leadership, maintains that the wiretap was an unconstitutional violation of the Speech or Debate Clause.  Relying on United States v. Rayburn House Office Bldg, 497 F.3d 654 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1738 (2008), Renzi and the House argue that the Clause contains a “non-disclosure” element that prohibits law enforcement from “seizing” non-public legislative information from a Member of Congress (or congressional aide), whether by subpoena, search warrant or wiretap.

In Rayburn, the D.C. Circuit held that compelled disclosure of protected legislative documents during the execution of a search warrant for a congressional office violated the Speech or Debate Clause. Although the search warrant in Rayburn was not directed at legislative materials, the court held that because the search “exposed legislative material to the Executive” as law enforcement officials conducted a review of the Congressman’s files, the search was unconstitutional.

As Judge Henderson warned in a separate opinion, the Rayburn majority’s conclusion that “the Clause’s shield protects against any Executive Branch exposure to records of legislative acts would jeopardize [a number of] law enforcement tools,” including “surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer.” Indeed, in its petition for certiorari in Rayburn, the Department of Justice asserted that the decision “potentially jeopardizes wiretaps . . . directed at Members” and informed the Supreme Court that “[t]he government does not presently intend to use wiretaps against Members in the District of Columbia” as a result of the Rayburn holding.

The Renzi prosecutors somewhat half-heartedly attempt to distinguish Rayburn on the basis of the official nature of the property searched. They argue that Rayburn might apply if the wiretap had been on Renzi’s office phone, or an official cell phone. Here, however, the wiretap was on a personal cell phone that was not even in Renzi’s name, but registered to a private business held in the name of Renzi’s wife. The prosecutors argue that “[t]here is manifestly far less danger in intercepting calls made over a [private] business telephone” than an official phone.

This distinction, however, is unpersuasive. There is nothing in the reasoning of the Rayburn decision to suggest that its holding is limited to cases where a search is conducted of official congressional premises. If the rationale of Rayburn is that the Speech or Debate Clause prohibits the seizure of non-public legislative information from a Member of Congress, it would not seem to matter where the information happens to be located (as long as it is under the control of a Member). Nor is it plausible to suggest that there was little danger of seizing such information from Renzi’s cell phone. As the House points out, “the Congressman had only one cell phone, the phone that was the subject of the Wiretap Order, and that he regularly conducted legislative activities over that cell phone. The Department was certainly well aware, when it applied for the order, that Congressman Renzi used his cell phone to conduct legislative activities because, among other things, the Wiretap Order and Monitoriing Memo specifically contemplated the monitoring and recording of legislative conversations.” Indeed, this would seem to make the wiretap order more problematic, based on the rationale of Rayburn, than the search warrant involved in Rayburn itself, which was not aimed at seizing legislative materials.

If Rayburn was correctly decided, the Renzi wiretap is almost certainly unconstitutional. In fact, it is difficult to see how Members of Congress could ever be subject to wiretaps because such wiretaps would almost always intercept some legislative information. The House claims that a Member of Congress can be wiretapped so long as “appropriate safeguards” (which the House does not identify) are in place. But what would such safeguards look like? As the House itself argued in the Rayburn case, determining whether a particular communication is privileged under the Speech or Debate Clause requires a good deal of analysis and investigation. As the House put it, “[e]ven House Counsel which, along with Senate Legal Counsel, deals with Speech or Debate matters on an almost daily basis and has litigated numerous Speech or Debate cases, frequently cannot tell, merely by looking at a document, whether it is privileged.” A wiretap monitor certainly cannot be expected to make that judgment on the spot.

Judge Henderson was right. The Rayburn decision makes it problematic for law enforcement to use a whole host of investigative techniques with regard to Members of Congress. The Renzi case may provide the Supreme Court with another opportunity to address this important issue.