If politics creates strange bedfellows, there may be no better example than the federal corruption case known as United States of America vs. Richard G. Renzi.
Key Democratic and Republican House leaders have joined lawyers for Renzi, a Republican congressman from Arizona, in demanding that criminal charges be thrown out. In their view, FBI agents violated the constitutional separation of powers when they bugged Renzi’s cellphone and searched his office.
The lawmakers, who are members of the House Bipartisan Legal Advisory Group, include Speaker Nancy Pelosi, a Democrat, Republican Leader John Boehner and three others. They filed a 57-page amicus brief earlier this month in U.S. District Court in Tucson, seeking to suppress the government’s evidence and dismiss most of its indictment.
Put simply, the House members contend that investigators broke the law in pursuit of Renzi, trampling the so-called “Speech or Debate Clause” of the Constitution, which shields lawmakers from intimidation by the executive branch.
“The House does not file this memorandum to protect Congressman Renzi from criminal investigation or prosecution,” says their brief, “(or) to suggest that he or any other member of Congress is above the law. . . . (However,) the Justice Department repeatedly and substantially violated the Speech or Debate Clause in investigating Congressman Renzi.
“If the wiretap order and its execution are not declared unconstitutional,” the brief adds, “the resulting precedent could greatly increase the potential for executive branch abuse at the expense of the legislative branch.”
Justice Department lawyers have not yet answered in writing. But their position is spelled out in a supporting memorandum filed by Citizens for Responsibility and Ethics in Washington, a non-profit watchdog group known as CREW.
“The Speech or Debate Clause was never intended to provide members of Congress with blanket protection from prosecution for criminal acts,” wrote Melanie Sloan, a CREW attorney. “In a country founded on the rule of law, the courts should not allow any one class of individuals to live lawlessly.”
Renzi and three associates were indicted this year by federal grand juries on a total of 44 counts of extortion, fraud, money laundering and other crimes. Charges encompass several alleged conspiracies, including the embezzlement of funds from Renzi’s insurance agency and the funneling of that money into his first congressional campaign. But most of the counts stem from a federal land-swap deal and Renzi’s purported effort to coerce private developers into buying property from a former business associate who owed him money.
Prosecutors say the three-term representative abused his power and pocketed hundreds of thousands of dollars when the real-estate deal was consummated. Renzi, who has declined to comment since charges were filed, pleaded innocent to all charges, as did his co-defendants.
Renzi, who did not seek re-election this year, faces a maximum 20-year prison term per count if convicted on the most serious charges. Trial is tentatively scheduled in March.
Meanwhile, defense attorneys have showered U.S. Magistrate Bernardo Velasco with motions to suppress evidence and dismiss charges. Arguments about the Speech or Debate Clause stirred the most passion, in and out of court.
FBI agents monitored and recorded hundreds of Renzi’s phone calls in October and November 2006. They also searched his private office in southern Arizona and questioned members of his staff.
Disagreement about those methods extends beyond the courthouse to constitutional lawyers and scholars from coast to coast.
Stan Brand, former general counsel for the House and an expert on corruption law, said federal investigators blew it in the Renzi case. “I think the government has a serious problem,” Brand said. “Are they (defense attorneys) raising a serious constitutional question? The answer is: Yes.”
Even if Renzi is guilty, Brand said, the Constitution treats legislative independence as a higher social good than the conviction of a corrupt politician.
“Blame the framers,” he added. “You can scream all you want that there’s a crime, but you can’t inquire into legislative activity to prove it.”
“That can’t be right,” protested Erwin Chemerinsky, law school dean at the University of California, Irvine. “It’s essential that members of our government not be above the law. . . . It cannot be right that a member of Congress who is selling his or her votes is immune from prosecution.”
In 1642, King Charles I burst into England’s House of Commons with 400 soldiers to arrest five of his critics in Parliament on charges of treason. That incident triggered the English Civil War.
More than a century later, Alexander Hamilton, James Madison and other Founding Fathers began drafting the U.S. Constitution. They were familiar with tyranny from the British crown and were determined to limit executive power in the new nation.
So they included Article 1, Section 6, a convoluted sentence that says U.S. senators and representatives “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”
The Supreme Court has repeatedly affirmed that this provision creates absolute immunity for federal lawmakers from inquiry concerning their “legislative activities.” Today, however, there is a raging debate over the definition of legislative acts and how the privilege should be applied.
The dispute extends beyond Renzi’s case to a nationwide power struggle between Congress and the Department of Justice.
In the past two years, at least a half-dozen senators and representatives have been caught up in federal corruption probes where legislative immunity erupted as controversy:
• Rep. William J. Jefferson, D-Louisiana, had bribery evidence against him thrown out last year when a Court of Appeals in Washington, D.C., ruled that FBI agents violated the Speech or Debate Clause by searching his office.
• Former Sen. Ted Stevens, R-Alaska, was convicted in October for failing to report corporate gifts after he unsuccessfully sought to have the case thrown out based on the same principle.
• Several lawmakers tangled in the corruption scandal involving convicted lobbyist Jack Abramoff also may seek to use legislative activities as a shield. The list includes former House Majority Leader Tom DeLay, R-Texas; Rep. John Doolittle, R-Calif.; Rep. Tom Feeney, R-Fla.; and former Sen. Conrad Burns, R-Mont.
The FBI raid on Rep. Jefferson’s office was the first search of its kind in U.S. history and fomented outrage in Congress.
After an appellate court suppressed the evidence, Justice Department lawyers sought a hearing before the Supreme Court. Their application, or writ, claims such a precedent would stymie other corruption probes – presumably including Renzi’s – and transform Congress into a “sanctuary for crime.”
In April, the Supreme Court rejected the Justice Department’s appeal. But Jefferson still faces trial: On Friday, an Appeals Court turned down his motion to dismiss most of the indictment due to Speech or Debate violations.
Still, Peter Zeidenberg, a Washington, D.C., lawyer who once prosecuted cases at the Justice Department’s Public Integrity Section, said the case could force federal investigators to abandon congressional searches as an evidence-gathering tool to catch crooked lawmakers. While the Speech or Debate defense was rarely employed before the Jefferson ruling, he said, “Now we see it being used in a host of cases.”
This month in Tucson, prosecutors and CREW asked Velasco to ignore the Jefferson decision and focus on earlier Supreme Court rulings that allowed federal agents greater leeway in pursuing corruption in the halls of Congress. They said criminal acts, by definition, are not legislative.
Defense attorneys answered that such a loophole would allow the FBI to justify any search of federal lawmakers by merely alleging unlawful behavior. In fact, they noted, FBI agents eavesdropped on hundreds of phone calls between Renzi and other members of Congress, exactly the type of communication that should be protected.
Defense counsel Reid Weingarten said evidence from searches and wiretaps targeting Renzi should be thrown out, along with related charges.
Justice Department lawyer Andrew Levchuk described such a position as “unprecedented,” then added, “What got us here is Congressman Renzi’s flagrant criminal activity, and not anything the government did wrong.”