A federal appeals court in Washington rebuked the U.S. Department of Justice three years ago after its raid on the office of then-Rep. William Jefferson (D-La.). Federal investigators had never before searched a congressman’s office, and the ruling by the U.S. Court of Appeals for the D.C. Circuit declared they should never do so again.
But the court’s decision hasn’t stopped the Justice Department from testing the limits of its powers to investigate Congress. And two ongoing cases present opportunities for the Justice Department to make inroads against the 2007 ruling in Jefferson’s case — a ruling that department officials strongly disagreed with at the time and appealed, unsuccessfully, to the U.S. Supreme Court.
“They are trying to trim back, limit, keep as narrow as they can the range of what the courts have found to be out of bounds to them,” said Stanley Brand of Washington’s Brand Law Group, who frequently represents members of Congress.
The two cases are playing out in Arizona and the District of Columbia, where a former lawmaker and a former congressional staff member are separately facing allegations of corruption. Lawyers for the U.S. House of Representatives say some of the evidence that prosecutors want to use is either tainted or prohibited entirely.
At issue is the clause of the Consti­tution saying lawmakers “shall not be questioned” outside Congress about their speech or debate. The clause is designed to fortify the independence of the legislative branch, and it protects lawmakers against attempts by the executive branch to pry into the inner workings of Capitol Hill.
The outcome of at least one of the cases — involving former Rep. Rick Renzi (R-Ariz.) — could have broad ramifications for how the government conducts corruption investigations, defense lawyers and former prosecutors say. The pretrial dispute has gone up to the U.S. Court of Appeals for the 9th Circuit, which might rule in favor of the government and contradict the 2007 ruling in the D.C. Circuit.
“The whole issue is bound to hit the Supreme Court in the next couple years,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington and a former assistant U.S. attorney. Congress and the Justice Department, she added, are at an impasse: “The House is taking such an aggressive interpretation, and Justice is just not interested in agreeing to that interpretation.”
A spokeswoman for the Justice Department, Laura Sweeney, declined to answer questions about its approach to cases involving the speech or debate clause, or to make top officials available for interviews. Sweeney said that corruption cases present “unique challenges” but that “agents and prosecutors are committed to using all the tools at our disposal to prosecute corrupt politicians, when the facts and the evidence support it.”
An Arizona grand jury indicted Renzi in 2008, and he declined to run for re-election that year. Prosecutors say he extorted money from companies that needed his help getting congressional approval for land deals, and they are seeking to use evidence collected from a wiretap and from interviews with Renzi’s aides. House lawyers aren’t saying Renzi is immune from prosecution, but they say the congressional approval of land deals is a legislative activity and that investigators violated the speech or debate clause while collecting evidence.
The issue in Renzi’s appeal to the 9th Circuit goes to the heart of the ruling the House won in 2007. Back then, the D.C. Circuit said the speech or debate clause prohibits the unauthorized disclosure of legislative information to investigators — meaning that investigators might not be able even to execute a search warrant to see certain evidence.
But in February, U.S. District Judge David Bury of the District of Arizona ruled that the clause is more limited, affecting only how investigators may use information after they have it. Bury explicitly rejected the relevance of the Jefferson ruling, calling it “an example of hard cases making bad law.”
Renzi’s lawyers appealed, arguing that Bury should have dismissed the government’s indictment because of violations of the speech or debate clause. Renzi is represented by Steptoe & Johnson LLP partners Reid Weingarten and Brian Heberlig and Nixon Peabody partner Kelly Kramer.
The House’s general counsel, Irvin Nathan, stepped in with an amicus brief on June 24 on Renzi’s behalf. The brief rips into the Justice Department for “repeatedly and flagrantly” violating the speech or debate clause. It also lays out lawmakers’ broad vision of their privilege, arguing that criminal investigators should not be inquiring into their motives.
“The department’s seizure and use of, and reliance on, information about legislative acts — including its wiretapping of the congressman’s phone calls and ultimately its presentation to the grand jury of evidence about the congressman’s legislative activities and his motivations — has permeated its investigation and prosecution,” said the brief, which was filed on behalf of a bipartisan group of House leaders. Nathan declined to comment.
The Justice Department has until Aug. 18 to file its brief. Sloan of Citizens for Responsibility and Ethics in Washington and Tom Fitton, president of the conservative group Judicial Watch, said they are considering whether to file amicus briefs in the case, as they did in Jefferson’s case in support of the Justice Department.
A second test of the speech or debate clause comes in Washington, where former House staff member Fraser Verrusio faces a three-count indictment that grew out of the investigation into lobbyist Jack Abramoff. Prosecutors say Verrusio made a false statement when he omitted gifts — including a World Series ticket — from his financial disclosure form. For trial, they want a background witness who could testify about the importance of the form.
After failing to find a witness on their own, lawyers for the Justice Department’s public integrity section issued a subpoena to John Sassaman, a former House ethics counsel who is now chief counsel to the Senate Ethics Committee. On Sassaman’s behalf, the House’s general counsel moved to quash the subpoena.
In court papers filed on June 24, DOJ lawyers defended the subpoena by arguing that ethics forms do not fall within the protected category of legislative activity. “In fact, the testimony sought from Sassaman does not concern any acts or decisions actually undertaken by any committee member or staff,” wrote Peter Sprung, a DOJ trial attorney, and three of his colleagues.
Lawyers for Sassaman and the House disagree. In a July 16 reply, John Filamor, an assistant counsel to the House, wrote that the activity of the House’s ethics committee does qualify as “legislative” because courts have interpreted that phrase broadly to include the committee process. The reply adds that the Justice Department has a “fundamental misunderstanding of the privilege” if prosecutors think they can ask even general questions about the legislative process.
The two sides attempted to settle the dispute, but those talks have broken down, according to the House’s reply brief. A hearing in the case is scheduled for Aug. 27.
Peter Zeidenberg, a DLA Piper partner and former public integrity section attorney, said the Justice Department has plenty of reasons to continue litigating the issues it lost in the Jefferson case. Because the D.C. Circuit ruled that the speech or debate clause prohibits even disclosure of legislative activity, he said, it has become more difficult to execute search warrants and to get approval for wiretaps.
“It’s being raised in contexts in which it was never raised before, so it’s a huge problem for the government,” Zeidenberg said of the privilege. “It has, I think, helped stymie a lot of different investigations.”
The Justice Department warned of such an outcome when it petitioned the Supreme Court to hear the Jefferson case. If it didn’t reverse the D.C. Circuit, congressional offices would become “a sanctuary for crime,” the department said in its petition for certiorari. The justices, though, declined to hear the issue then.
Defense lawyers say that the Justice Department still has plenty of tools at its disposal. Jefferson, for example, was found guilty a year ago on 11 counts related to bribery. And, defense lawyers say, the D.C. Circuit simply upheld the intent of the Constitution’s framers.
Elliot Berke, a Washington solo practitioner whose clients have included then-Rep. Tom Delay (R-Texas), wrote in an e-mail that “all privileges have the effect of impeding criminal investigations. The government cannot simply water down a privilege because it may make its investigations more difficult.”
David Ingram can be reached at email@example.com.