Circuit Split Watch: The Legislative Privilege

This article first appeared in the August 17, 2011, issue of the National Law Journal's Supreme Court Insider.

The U.S. Constitution protects members of Congress from interference in their work by the other branches of government. The scope of this privilege, which aims to ensure legislative independence without enabling misconduct, has recently split two federal appellate circuits and will likely reach the Supreme Court soon as a petition for certiorari.

Under Article I, Section 6 of the Constitution, legislators cannot be questioned about their “Speech or Debate in either House.” The Supreme Court has held that this privilege, which comes from English law predating the Constitution, also covers legislative business more generally. However, the legislative privilege is not unlimited.

On August 1, the U.S. Court of Appeals for the 9th Circuit denied a petition for rehearing en banc in United States v. Renzi. The original panel rejected a legislative privilege claim by former U.S. Rep. Richard Renzi (R-AZ), accused of promising favorable legislation in exchange for a land purchase benefiting him. Prior to bringing charges, federal investigators interviewed Renzi’s aides and reviewed documents from them. Investigators also searched the office of an insurance company Renzi owned, pursuant to a warrant.

In ruling against Renzi, the 9th Circuit expressly disagreed with a 2007 D.C. Circuit decision, United States v. Rayburn House Office Building. Rayburn, which the Supreme Court declined to review at the time, upheld the legislative privilege of then-sitting U.S. Rep. William Jefferson (D-LA).

As part of a criminal investigation, the FBI obtained a warrant and searched Jefferson’s congressional office. For 18 hours, more than a dozen agents reviewed every paper in the office and seized records, as well. Finding the legislative privilege violated, the D.C. Circuit ordered the government to return privileged materials taken in the search, with the district court making privilege determinations. The D.C. Circuit noted that it was the first time in history that the Executive branch had searched the office of a sitting member of Congress. A search of Jefferson’s home, not at issue in Rayburn, turned up a much publicized stash of cash in the freezer.

Despite Jefferson’s evidentiary win, he was tried and convicted for bribery and other crimes in federal court in Virginia. His case is on appeal in the 4th Circuit and tentatively scheduled for oral argument in October.

By ordering privileged materials returned to Jefferson, the D.C. Circuit in Rayburn went too far, the 9th Circuit found. The panel said it could not join the D.C. Circuit in sanctioning a “grandiose, yet apparently shy, privilege of non-disclosure” not recognized by the Supreme Court. Instead of forbidding investigators from reviewing documents that have some legislative references, any privileged portions could simply be redacted before use at trial, the 9th Circuit explained, citing Supreme Court case law.

This circuit split on an issue of nationwide importance, namely the integrity and independence of Congress, has Supreme Court watchers’ attention. Professor Jonathan Adler of Case Western Reserve University School of Law told Roll Call: “We have a circuit split—which is the most common reason for the Supreme Court to take a case—and it’s clear cut.”

Renzi’s case may present vehicle problems, though. Professor Craig Bradley of Indiana University’s Maurer School of Law stated in a telephone interview that Renzi’s alleged land-for-vote scheme was clearly not a “legislative act.” A former Rehnquist clerk, Bradley has written about the Speech or Debate Clause and seen it used in practice. In the 1970s, he worked as an attorney for DOJ’s Public Integrity Section during “Koreagate,” a bribery scandal involving South Korea and members of Congress. Bradley described Renzi’s legislative privilege claim as “weak.”

The 9th Circuit apparently agreed. Renzi lost unanimously and no circuit judge even requested a vote on rehearing. Although not essential, some pushback below can focus the issues and demonstrate to the Supreme Court the need for review.

Also potentially weighing against Renzi are the unprecedented D.C. Circuit facts: the first and only search of a congressional office by the Executive, covering literally every paper there. The Supreme Court could distinguish the 9th and D.C. Circuit cases on that basis and decline to step in.