With the long-awaited corruption trial in Arizona of former three-term Rep. Rick Renzi as the legal battleground, House Republican and Democratic leaders are accusing the Justice Department of seeking to undercut special constitutional protections afforded to federal lawmakers and their legislative acts.
With national attention focused on several scandals that question whether government agencies exceeded or abused their authority, the House Office of General Counsel submitted a brief in Renzi's trial in Tucson, assailing what it calls a "patently incorrect" argument there by federal prosecutors involving when the speech- or debate-clause protections are surrendered.
Renzi, 54, who served in Congress from 2003 to 2009, was indicted five years ago and now faces 32 counts of extortion, conspiracy, and fraud. Some of the charges involve his dealings with legislation tied to a complex land exchange between the federal government and Resolution Copper Mining, and whether he enriched himself by threatening to kill the deal unless the mining company bought land from a former business partner. His trial began May 7, and it is expected to take as long as two months.
What has House leaders interested in the case is the Justice Department's assertion that if Renzi uses any records of his own legislative activities as evidence in his defense during the trial—such as committee reports, notes, and records of meetings, bills, and resolutions, and even the act of voting—prosecutors would view that as tantamount to a waiver of his protections under the Constitution's speech or debate clause.
The clause is intended to ensure free and robust debate in Congress by shielding lawmakers against arrest or prosecution based on their political beliefs or certain legislative actions. Such a waiver—if it is deemed by the court to be a waiver—could set a precedent, controlling what documents and testimony are allowed at the trial, and at others in the future.
"The House has no institutional interest in Mr. Renzi's ultimate guilt or innocence, and it does not file this memorandum for the purpose of trying to protect or harm him," said the memo filed by House General Counsel Kerry Kircher.
But the memo asserts that Renzi may continue to decline to waive any of his speech or debate protections, "even if he elects to introduce in his own defense evidence of some of his legislative activities." And it cautions that any court ruling touching on the protections of the speech or debate clause has "far-reaching" implications "for the House and its members in a multitude of contexts well beyond this case."
In fact, the memo warns of the possibility of "reversible" legal error, on which Renzi could base an appeal. It argues there is no case law for such a self "waiver" of the speech or debate privilege unless the lawmaker or former lawmaker makes an "explicit and unequivocal renunciation."
The brief goes on to cite previous court cases as a reminder that this protection for current and former lawmakers has long been considered important to allow the legislative branch to perform its function independently, and to protect lawmakers from intimidation.
Kircher filed the argument on behalf of the House Bipartisan Legal Advisory Group, a five-member panel made up of Speaker John Boehner, R-Ohio; Majority Leader Eric Cantor, R-Va.; Majority Whip Kevin McCarthy, R-Calif.; Minority Leader Nancy Pelosi, D-Calif.; and Minority Whip Steny Hoyer, D-Md.
The memo does not specify what evidence Renzi intends to use. But it does cite concerns over allowing Renzi "to use the clause as both a sword and shield," referring to Justice Department's argument against permitting Renzi to use evidence tied to his legislative acts in his defense but preventing the government from doing so in his prosecution. But it states the court can deal with this problem by choosing to use a federal rule of evidence to exclude the evidence offered by Renzi if its introduction is unfair, or presents a distorted picture for the jury.
No ruling yet has been made by the judge at Renzi's trial on the issue, as the prosecution continues to present its case.
Renzi's attorneys argued the charges against him should be dismissed outright under the speech or debate clause, but a federal District Court and a U.S. Court of Appeals rejected that argument. However, the specific issue of whether past or present House members' use of evidence tied to their legislative activity constitutes a "waiver" of his protections under the clause has never been addressed by a court. "Indeed, no court ever has held that the protections of the Clause were waived, and [the Justice Department's] facile invitation for this court to be the first demands a response from the House," Kircher's memo said.
The House general counsel's memo is not the only recent involvement by lawmakers in the Renzi case. The Senate in April passed a resolution authorizing the office of Sen. John McCain, R-Ariz., and those tied to the office of former Sen. Jon Kyl, R-Ariz., to produce "relevant documents and employee testimony in the case … except concerning matters for which a privilege should be asserted."
This article appears in the May 29, 2013, edition of NJ Daily.