National Journal had an article last week regarding the Speech or Debate waiver issue in the Renzi case (hat tip: Rick Hasen), which we discussed awhile back.

Another interesting Speech or Debate issue is raised in this motion by the House General Counsel on behalf of Kevin Messner, a non-party witness. Messner served at different times as a staffer for then-Congressman Renzi and for Jim Kolbe, another (now former) congressman from Arizona. Messner has potentially relevant knowledge from his service for both of the former members. This is because both Renzi and Kolbe were interested and involved in the land exchange legislation that is at the heart of the charges against Renzi, and Messner worked on the legislation in the course of his service for each of them.

Both the prosecution and the defense expressed an interest in questioning Messner about his knowledge and activities regarding the land exchange legislation. The House Counsel, however, sought and obtained a protective order barring the parties “from questioning Kevin Messner at trial concerning the legislative activities of former U.S. Representative James Kolbe.”

Because Kolbe declined to waive his Speech or Debate privilege, he was entitled to object to questioning of Messner with respect to certain matters. I am not sure, though, that it is quite right to say that Kolbe has the right to object to any questioning of Messner regarding Kolbe’s legislative activities. Messner may have knowledge of Kolbe’s legislative activities during the time that Messner worked for Renzi. I don’t think Kolbe would have the right to object to Messner’s testifying about that.

Kolbe’s right to assert Speech or Debate cannot be based solely on the fact that Messner is being questioned about Kolbe’s legislative activities. If Messner had worked only for Renzi, Kolbe would have had no privilege to assert.  Kolbe’s right to assert privilege derives from the fact that the law views Messner as Kolbe’s “alter ego” with regard to the period when Messner worked for him. See Gravel v. United States, 408 U.S. 606, 616-17 (1972). Thus, Kolbe may assert the privilege when Messner is questioned about matters within the “legislative sphere” only if they occurred during Messner’s service in Kolbe’s office (because the law deems this the equivalent of questioning Kolbe himself).

Renzi is in a different position. He can object to questioning Messner regarding his service in Renzi’s office on the same alter ego theory, but, as the defendant, he can also object to introduction of evidence regarding legislative acts regardless of the source. Thus, Renzi could object to Messner’s testimony about Renzi’s legislative acts even if that testimony related solely to Messner’s service as a Kolbe staffer. I think (although I am not sure this has ever been litigated) Renzi could even object to Messner’s testimony if it related solely to Kolbe’s legislative acts, and arose solely from Messner’s work for Kolbe.

If this is correct, there should be no question Messner could be asked to which Kolbe alone would have the right to object. However, as House Counsel points out, Kolbe has an independent right to assert the Speech or Debate privilege, including to questions that Renzi might want to ask of Messner.

To protect Kolbe’s privilege, House Counsel not only obtained a protective order, but secured permission from the judge to sit in the well of the court during Messner’s testimony and raise any Speech or Debate objections on a question-by-question basis. This is a fairly novel procedure that, in my experience, many judges would be loath to permit. Theoretically, if the House Counsel objected to a question which the judge did not believe was covered by the privilege, House Counsel (on behalf of Kolbe) could take an immediate appeal from the judge’s ruling, potentially causing a delay in the trial.

I suspect that House Counsel would take such a step only in extraordinary circumstances. For one thing, it would make it less likely that judges would be willing to allow this procedure in the future.

The corruption trial of former congressman Rick Renzi began this week in federal court in Arizona. A number of Speech or Debate issues can be expected to arise during the trial. The Bipartisan Legal Advisory Group (affectionately known as BLAG) has already filed this amicus brief addressing the question of whether Renzi would waive the Speech or Debate privilege by introducing in his defense evidence of certain legislative activities, such as the fact that a particular bill (referred to as the Resolution Copper Company bill) was introduced in the House and that another bill (referred to as the Preserve Petrified Forest Land Investors bill) was never introduced.

BLAG asserts (correctly, as far as I know) that no case has ever found a waiver of the Speech or Debate privilege. It contends that no such waiver can take place unless the privilege-holder (in this case Renzi) makes an “explicit and unequivocal renunciation,” as the Supreme Court put it in U.S v. Helstoski, 442 U.S. 477, 491 (1979). Renzi’s introduction of evidence regarding legislative activities (which would violate the privilege if introduced by the government) does not amount to such a renunciation, according to BLAG. Thus the government would not be entitled to introduce privileged evidence itself, even if directly responsive to the evidence introduced by Renzi.

Needless to say, the government will argue that this is a tad unfair, but BLAG maintains that the court can address this problem by exercising its discretion under Federal Rule of Evidence 403. It suggests that the court may choose to exclude the evidence offered by Renzi or condition its admission on Renzi’s waiver of Speech or Debate with regard to certain responsive evidence (for example, evidence that would be within the scope of cross-examination).

Another potential issue in the Renzi case relates to a subpoena for documents that was received by the House Intelligence Committee (I don’t know which side served it). According to a notice under House Rule VIII filed by the committee on March 12, 2013, the committee intends to move to quash the subpoena as contrary to the rights and privileges of the House. The docket sheet does not reflect such a motion, though, so I assume that the issue has either been resolved or put off until a future time.

Warning: If you are not deep in the weeds of Speech or Debate, this post may not be for you.

With regard to the question of whether the Speech or Debate Clause prohibits former Congressman Renzi’s prosecution in connection with his role in developing certain land exchange legislation, one English precedent stands out as particularly significant. As far as I recall, it has not been discussed in any of the briefs thus far, so it is worth noting as the petition for certiorari is prepared.

The case, which will be celebrating its half-a-millennium anniversary next year, is described thusly by the Supreme Court in footnote 13 of United States v. Johnson, 383 U.S. 169 (1966):

See, e. g., Strode’s Case, one of the earliest and most important English cases dealing with the privilege. In 1512, Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring “That suits, accusements, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.”

Strode’s case shows that a Member of Congress cannot be prosecuted for introducing or supporting a bill, even if he does so for corrupt reasons.

No doubt the prosecution would attempt to distinguish the Renzi case on the grounds that Renzi is not being prosecuted for introducing or supporting land exchange legislation, but for “extorting” private parties by refusing to support land exchange legislation unless it included property owned by his business associate. But this narrow reading of Strode’s case would seem to be inconsistent with Parliament’s broad declaration.

Could Strode have been prosecuted for “conspiring” with private interests in order to draft or introduce the tin mining legislation? Could he have been prosecuted if it were alleged that merely drafting, introducing or announcing his support for the tin mining legislation was a corrupt act? Surely the point of Parliament’s declaration was that Strode was free to draft, introduce and support whatever bill he liked, regardless of his alleged motives for doing so.

If I were Reid Weingarten, I would argue that the Justice Department is trying to overturn 500 years (by the time the case actually reaches the Supreme Court) of precedent on parliamentary independence.

Because the Speech or Debate Clause was modeled on article 9 of the English Bill of Rights, U.S. courts have long looked to English practice and precedent as a guide to its interpretation. This approach is reflected in the very first case to consider the Clause, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the Court observed that “while the framers of the Constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as they thought proper to be applied to the two Houses of Congress.”

In the British courts there historically has been a prohibition against taking cognizance of matters occurring in Parliament, apart from duly enacted statutes. The concept underlying this rule appears to fall somewhere between a kind of comity (it would be disrespectful for judges to pronounce on matters being debated in Parliament) and a more absolute jurisdictional bar. The latter idea is sometimes referred to as “exclusive cognizance,” and, as explained by the U.K. Supreme Court in Chaytor, “was originally based on the premise that the High Court of Parliament had its own peculiar law which was not known to the courts.”

The British practice has been modified in modern times. For example, in 1980 Parliament adopted a resolution that permitted reference in court to certain parliamentary papers. Then in Pepper v. Hart, 1 AC 593 (1993), “the Law Lords set aside the very old rule that debates in Parliament ought not to be cited in court as an aid to the construction of the Acts which were shaped by the debates.” William McKay & Charles Johnson, Parliament & Congress 511 (2010). Even so, it remains impermissible to consider parliamentary debates for other purposes, such as determining whether Parliament’s reasons for adopting legislation were consistent with the European Convention on Human Rights. Id. 512.

One might think that the British principles of comity and exclusive cognizance would support a broad nondisclosure privilege. Compelling the production of parliamentary records could be viewed as a type of inappropriate judicial notice or scrutiny of parliamentary proceedings. Similarly, it might be viewed as a violation of principles of comity or mutual respect between the judicial and legislative branches.

Although I have not come across any case law on point, a couple of non-judicial precedents shed some light on the subject. The Joint Committee on Parliamentary Privilege, set up in the late 1990s to study the need for modernizing British law on parliamentary privilege, recounts this episode:

Sir Donald Limon, then Clerk of the House of Commons, drew attention to a court action brought against the House of Commons by a disappointed contractor for work on Portcullis House, the new parliamentary building opposite Big Ben. Select committee papers relevant to the contract had been included (with the permission of the House of Commons, secured by motion) in the documents exchanged between the parties. This met the obligation to disclose, but left unresolved the crucial question of how the disclosed material could, if relevant, be used in the course of the trial. Article 9 precluded such use. Unlike its non-statutory privileges, the House of Commons had no power to waive this statutory provision.

Joint Committee Report ¶ 254 (1999). The Joint Committee distinguishes here between the use of privileged documents, on the one hand, and their disclosure in litigation, on the other. The former is covered by article 9, while the latter is not. Note that the report leaves open the possibility that disclosure would be covered by another, non-absolute, privilege.

Another example is the protocol issued by the Speaker of the House of Commons to govern situations in which warrants were issued for searches within the precincts of Parliament (this followed a publicized case in which the police searched the office of a prominent MP). The protocol provides for advance notice of any parliamentary search and further provides that

The Speaker may attach conditions to such a search which require the police to describe to a senior parliamentary official the nature of any material being seized which may relate to a Member’s parliamentary work and may therefore be covered by parliamentary privilege [in which case] the police shall be required to sign an undertaking to maintain the confidentiality of that material removed, until such time as any issue of privilege has been resolved.

See British House of Commons Note on Parliamentary Privilege and Individual Members 10 (Feb. 10, 2010).

Again, this suggests that mere disclosure of legislative materials does not itself waive or violate the privilege. Accordingly, legislative materials seized in a search can be dealt with after the fact by negotiation between the House of Commons and the police (note that the individual MP whose records were seized is given no formal role in this process).

The British protocol contrasts with the approach of the D.C. Circuit in U.S. v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), where the court held that the Speech or Debate Clause required that legislative materials be segregated and removed before law enforcement authorities seized evidence from a congressional office pursuant to a search warrant. Because the Rayburn court found that Speech or Debate encompasses a nondisclosure privilege, the individual Member, rather than the legislative body alone, may assert the privilege.

If British practice does not support the existence of a nondisclosure privilege, the U.S. Supreme Court is unlikely to recognize one. The Court has emphasized that the Speech or Debate Clause was not intended to sweep as broadly as the privileges enjoyed by the British Parliament. See U.S. v. Brewster, 408 U.S. 501 (1972) (“Although the Speech or Debate Clause’s historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government, rather than the English parliamentary system. We should bear in mind that the English system differs from ours in that their Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy.”).

U.S. courts have not recognized concepts such as “exclusive cognizance,” and have rejected the notion that the Congress inherited the “lex et consuetudo” parliamenti, a separate law and custom of Parliament unknown to the ordinary courts. If nondisclosure is not incorporated under article 9, it would not likely be encompassed by Speech or Debate. Moreover, U.S. courts have less reason to adopt a nondisclosure privilege because they have never observed a prohibition on judicial consideration of legislative proceedings. Federal courts routinely consider and scrutinize congressional proceedings (and have been known to question legislative motives).

Thus, British practice and precedent would seem to cut against recognition of a nondisclosure branch of Speech or Debate.

 

Now I will turn to the question of whether the Speech or Debate Clause should be read to encompass a “nondisclosure” privilege, which would protect Members of Congress from being required to produce information regarding their legislative activities. Following the hypothetical in my last post, suppose the Justice Department serves Senator Smith with a grand jury subpoena seeking production of all documents relating to the debt limit. Let’s say that responsive documents would include some that could not be used against Senator Smith, like a copy of the floor speech, because to do so would violate the non-use branch of Speech or Debate. Other responsive documents would include some that could be used against him because they do not fall within the “legislative sphere” (examples might include correspondence from constituents expressing their views on the debt limit). Still other documents could be used only if portions were redacted.

Can one characterize this document subpoena as a “questioning “ of Senator Smith or his legislative acts? Perhaps, but it is more difficult to do so than in the case where Senator Smith is literally being questioned on the witness stand. To use the analogy of the Fifth Amendment context, a document subpoena does not ordinarily require the recipient to make a testimonial response (i.e., to provide any information from his or her personal knowledge). Senator Smith could, for example, turn over to a third party the task of reviewing his documents to determine which are responsive to the subpoena.

Moreover, while a document subpoena could conceivably be characterized as a “questioning,” there are alternative methods that the Justice Department could use to obtain Senator Smith’s documents, such as a search warrant. As a literal matter, it would be very difficult to say that a search of Senator Smith’s office would be “questioning” him. From the standpoint of separation of powers, on the other hand, it seems incongruous to treat a search more favorably than a document subpoena.

What about from the standpoint of the purpose of the Speech or Debate Clause? If the purpose is to prevent a Member from being held legally accountable for any speech or debate, a document subpoena would seem to pass muster as it does not seek to hold the recipient accountable. It seems unlikely that a Member would be chilled in the performance of her legislative duties by the possibility of a document subpoena.

If the purpose of the Speech or Debate Clause were to prevent a Member from being distracted from her legislative and other responsibilities, one could argue that a document subpoena has some distracting effect. But it seems unlikely that avoiding distraction is a core purpose of the Clause. After all, the Constitution directly addresses the far more “distracting” case of a Member being arrested while Congress is in session- and places only a very minor limitation on such arrests. Thus, the Ninth Circuit was justified in finding that “legislative distraction is not the primary ill the Clause seeks to cure.” Renzi, slip op. at 8546. Moreover, the distraction caused by a document subpoena is relatively minor and recognizing a nondisclosure privilege would have only a marginal impact on this minor distraction. A nondisclosure privilege would merely allow Senator Smith to withhold certain documents, but he would still be required to produce non-legislative documents (and possibly to produce others in redacted form).

If the purpose of the Clause is to avoid having a Member’s legislative motives impugned or questioned, the question is a closer one. Arguably, a grand jury subpoena for Senator Smith’s documents related to the debt limit would have that effect, at least in the court of public opinion.

But there is a poor fit between the asserted purpose and the remedy of providing a nondisclosure privilege for legislative documents. For one thing, it is the fact of a grand jury investigation, not the subpoena itself, which is likely to be the source of any “questioning” of Senator Smith’s motives. Moreover, recognizing a nondisclosure privilege would not even prohibit a document subpoena, but would merely allow Senator Smith to withhold certain responsive documents. Finally, the nondisclosure privilege would apply even in cases where Senator Smith’s legislative motives are not at issue, such as where the investigation relates to third-party crime.

The most obvious rationale for a nondisclosure privilege would be to protect the confidentiality of certain legislative communications or other matters. There is, however, also a poor fit between the Speech or Debate Clause and any confidentiality interest that legislators may have. The protections of Speech or Debate apply to documents and information which are not confidential or which are matters of public record (e.g,, Senator Smith’s speech itself). Furthermore, there are some categories of documents, such as constituent requests for assistance, where there is a legitimate confidentiality interest but no claim for protection under the Speech or Debate Clause.

These considerations have impelled the Third Circuit to reject the nondisclosure privilege. See In re Grand Jury Proceedings, 563 F.2d 577, 584 (3d Cir. 1977) (“[T]he privilege is one of nonevidentiary use rather than nondisclosure.”). In a case involving a grand jury subpoena to obtain a Member’s telephone records, the court opined that Speech or Debate was different than privileges designed to protect “socially desirable confidential relationships,” such as attorney-client or physician-patient. In re Grand Jury Investigation (Eilberg), 587 F.2d 589, 596 (3d Cir. 1978). The Speech or Debate privilege “is not designed to encourage confidences by maintaining secrecy, for the legislative process in a democracy has only a limited toleration for secrecy.” Id. at 597.

To the extent that the Third Circuit suggests that there are no valid reasons for protecting legislative confidences, I disagree. In fact, the Third Circuit itself, in a brief and unpublished 1996 opinion, refused to order the House Ethics Committee to produce confidential documents in response to a subpoena in the criminal trial of former Congressman McDade. The court is correct, however, that the Speech or Debate Clause was not designed for protecting confidences and seems to be ill-suited for that purpose.

Thus, the language and purposes of the Speech or Debate Clause provide scant justification for a nondisclosure privilege. Perhaps we can shed more light on the subject from examining the practice and precedents of our English cousins. I will turn to that in my next post.