In a little-noticed amicus brief filed in June with the U.S. Court of Appeals for the Ninth Circuit, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives argued that the Justice Department’s wiretap of former Representative Rick Renzi was unconstitutional. BLAG contends: “The Wiretap Order clearly permitted the executive branch to seize communications concerning constitutionally protected legislative activities, and specifically concerning information related to a particular piece of legislation. Such interception- especially of a purposeful, sustained nature—is patently inconsistent with the [Speech or Debate] Clause.”
BLAG’s argument begins with the premise that the “core purpose” of the Speech or Debate Clause “is to protect legislative independence from the encroachment of the executive and judicial branches.” It then seeks to show that executive branch abuse of wiretaps threatens legislative independence, citing historical examples such as FBI wiretapping during the J. Edgar Hoover era and a 1961 case in which the Kennedy administration wiretapped a congressman’s meeting with a foreign representative in order to gain a political advantage over the congressman. From this BLAG concludes that the Speech or Debate Clause should protect against executive branch interception of legislative communications.
In an amicus brief supporting the Justice Department, CREW accuses BLAG of “advocat[ing] a total ban on wiretapping the telephones of members of Congress.” In theory, this accusation is overstated. BLAG asserts in its brief that it is not claiming that Members of Congress are immune “from a properly authorized and administered wiretap.” Instead, BLAG believes that this immunity only extends to interception of communications regarding “legislative information,” such as Renzi’s conversations with his staffers regarding the very land exchange legislation that lies at the heart of the allegations against him.
As a practical matter, however, it is not clear how BLAG’s position differs from a complete ban on wiretapping Members of Congress (and, for that matter, congressional staffers). A wiretap of a Member of Congress is virtually certain to intercept some legislative information, and it is difficult to see how the Justice Department could screen out such information without first recording and analyzing it. In the Rayburn case (involving the search and seizure of documents from a congressman’s office), BLAG contended that it would violate the Speech or Debate Clause for the Justice Department to use filter teams to review and separate privileged from non-privileged documents. Similarly, BLAG objects here to the Justice Department conducting “spot checks” of potentially privileged conversations to determine if they in fact involve legislative matters. Thus, there would seem to be no way that the Justice Department could intercept any conversations by a Member of Congress if there were any possibility that legislative matters might be discussed.
As a logical matter, moreover, BLAG’s rationale for constitutional protection would seem to apply to any wiretap of a Member of Congress. After all, there would seem to be little relationship between the potential for abuse or intimidation, on the one hand, and the legislative nature of an intercepted conversation, on the other. A Member’s conversations regarding non-legislative matters, such as political strategy, campaign fundraising or purely personal affairs, could surely be just as useful to an executive branch that was up to no good.
It is also worth noting that BLAG’s brief fails to mention the most famous example of executive surveillance of Members of Congress—the ABSCAM case. In that case the Justice Department conducted a sting operation in which undercover agents purported to be foreign citizens offering bribes to Members of Congress in exchange for the Members agreeing to sponsor private immigration bills. Would BLAG view these discussions as “legislative information” protected by the Speech or Debate Clause? The answer is not entirely clear, but nothing in BLAG’s brief suggests otherwise. Certainly the ABSCAM tapes would seem to be just as legislative in nature as the 1961 conversation between a Member of Congress and a foreign representative.
In short, if BLAG is not arguing for de jure legislative immunity from wiretapping, it is arguing for something very close to de facto immunity.