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.