Month: October 2014

A couple months ago we discussed the question of whether informal information gathering is a legislative activity protected by the Speech or Debate Clause. As I noted at the time, there is case law suggesting that some informal information gathering is protected, but significant uncertainty as to how one defines the type of information gathering meriting such protection.

An easy case would be a witness interview conducted by committee investigators. Such an interview would be informal in the sense that the witness’s attendance is voluntary, there would (probably) be no transcript of the interview, and there would be no formal procedures for asking questions and making objections. Yet in function and substance such an interview is very similar to a committee deposition, and thus a strong case can be made that it warrants the same level of protection.

Now extend that to a telephone conversation in which a committee investigator calls a witness to ask the same sort of questions. This is even more informal than a scheduled, in-person interview, but if it is clear from the circumstances that the investigator is gathering information for use in a committee investigation, it would make sense to treat it the same way.

The problem comes in trying to extend this principle to the myriad conversations and meetings that a typical committee staffer (or any congressional staffer) would have during the course of a day. These could include discussions with agency officials, constituents, lobbyists, interest groups, government contractors, legislative support staff and many others. During any one of these conversations a staffer might gather some information of potential use to the committee’s investigatory and oversight activities, but the same conversation might cover many other matters, such as constituent complaints, efforts by lobbyists and others to obtain contracts, favors or other benefits from the legislative or executive branches, or “cajoling” of agencies by members of Congress. One might also distinguish between the type of general background information that might be covered in a typical agency briefing and specific information that might be obtained from a fact witness on a matter the committee is investigating.

One question that might be asked is whether any statements made by the outside individual to the congressional staffer would be covered by the False Statements Act, 18 U.S.C. 1001, which criminalizes false statements to Congress in the course of “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.” That section would seem to presume some sort of structure or formality to connect the false statement to the investigation or review, as opposed to statements that might be made in the course of impromptu conversations with congressional staff.

An interesting recent case on this issue is Williams v. Johnson, Civ. Action No. 06-2076, in which the plaintiff, an employee of the DC Department of Health, sued the DC Government for allegedly retaliating against her for remarks she made in testimony before the DC Council Committee on Health and in a separate meeting with the chairman of that committee, David Catania, and two of his aides. She subpoenaed Catania and one of his aides to testify and produce documents related to these events, and they moved to quash on the basis of DC’s Speech or Debate statute, which has been interpreted to provide the same protection as the federal Speech or Debate Clause. Continue reading “The Speech or Debate Clause and Protection of Informal Information Gathering”

As the Ninth Circuit helpfully explained yesterday (hat tip: Zoe Tillman) in affirming former congressman Rick Renzi’s conviction on various corruption charges, “Congressmen may write the law, but they are not above the law.” In doing so, the panel rejected two Speech or Debate arguments Renzi raised on appeal. (For Renzi’s prior unsuccessful trip to the Ninth Circuit on Speech or Debate, see here).

The first issue revolved around two pieces of testimony the prosecution elicited from Joanne Keene, Renzi’s former district director. Keene testified that (1) Renzi’s interest in a potential land exchange bill seemed to depend on whether the tract of land belonging to his secret business partner was included and (2) Renzi indicated to her that he was having second thoughts about the land exchange legislation because of the news about Duke Cunningham’s indictment on corruption charges. The prosecution contended that this testimony did not violate the Speech or Debate Clause because it directly rebutted evidence Renzi had offered to show that his actions in the legislative process were taken for legitimate reasons.

The Ninth Circuit agreed, holding “if a member of Congress offers evidence of his own legislative acts at trial, the government is entitled to introduce rebuttal evidence narrowly confined to the same legislative acts, and such rebuttal evidence does not constitute questioning the member of Congress in violation of the Clause.” This sounds likes a waiver analysis, but the court declined to characterize it as such (in order to avoid Supreme Court caselaw setting a very high bar for waiver of Speech or Debate). Instead, the court concluded somehow that Renzi was not being “questioned” within the meaning of the Clause. Nevertheless, the court’s basic approach, which accords with that of other circuits, seems to make sense. After all, it is hard to see how a member of Congress can introduce exculpatory evidence of legislative acts and not have that evidence subject to some degree of rebuttal or cross-examination. (On the other hand, the D.C. Circuit appears to have adopted something akin to a no cross-examination rule in the context of congressional employment cases).

The more interesting language from the court’s opinion, though, appears in footnote 24, where the Ninth Circuit indicates that the evidence challenged by Renzi would in any event not violate the Speech or Debate Clause because it concerned only Renzi’s performance of future legislative acts. The footnote suggests there is no protection for discussion of potential legislation that has not actually been introduced, while discussion of introduced legislation may be considered part of the legislative process and therefore protected.

As far as I know, this is the first time a court has suggested that the formal introduction of legislation is key to determining the applicability of the Speech or Debate Clause. This would mean, for example, that if Renzi had drafted a land exchange bill, but told his staff to hold off introducing it because of the Duke Cunningham investigation there would be no protection. On the other hand, if Renzi actually introduced the legislation, but told his staff to hold off seeking co-sponsors for the same reason, the Clause would apply. It is hard to see how this distinction makes sense as a matter of constitutional text or purpose. If taken seriously, it would call into question whether legislative activities such as fact-gathering or bill-drafting would be protected.

But the Ninth Circuit panel itself may not take the distinction that seriously. This is shown by the court’s disposition of Renzi’s second Speech or Debate argument. Renzi had wanted to call the former chief of staff to Congressman Kolbe to testify about “conversations between Kolbe and Renzi regarding the proposed [land exchange] bill.” However, “[b]ecause this testimony directly implicated Kolbe’s legislative activities,” the appellate panel concluded that this testimony was properly excluded as violating Kolbe’s Speech or Debate privilege.

The land exchange bill in question, however, was never actually introduced: thus it would seem that Kolbe’s discussions with Renzi should have been unprotected under the court’s own reasoning. It appears that the trial and appellate courts applied the Clause inconsistently to allow evidence the prosecution wanted to introduce but block evidence that Renzi wanted to introduce. Perhaps there is an explanation for this discrepancy, but it is not obvious to me.

Maybe they just don’t like congressmen who think they are above the law.