A federal appellate court Thursday rejected a former congressman’s assertion that constitutional protections for legislative “speech and debate” precluded his prosecution for allegedly promising to enact some legislation in response to a private transaction that brought him hundreds of thousands of dollars.
The decision by the U.S. Court of Appeals for the 9th Circuit allows a long-stalled trial of former representative Rick Renzi (R-Ariz.) to proceed and represents a rebuke of the leaders in the House of Representatives who had supported Renzi’s constitutional challenge to his 2009 indictment for extortion, mail and wire fraud, money laundering, campaign finance offenses and conspiracy.
The outcome, which was immediately hailed by the Justice Department, turned on the parsing of Supreme Court rulings that congressmen cannot be prosecuted for “legislative acts” including speech, debate, voting and deeds undertaken in the chambers or committee hearings.
Renzi had asserted that the government infringed on these protections when it indicted him with evidence derived from a cellphone tap, interviews with his aides and documents that his aides took from his office and handed to investigators. Because the transcripts and discussions mentioned legislative acts, he said, it should not have been presented to a grand jury and he should not be required to defend himself.
The House general counsel, arguing on behalf of leaders including Reps. John A. Boehner (R-Ohio) and Nancy Pelosi (D-Calif.), complained that the Justice Department’s investigation had “repeatedly and flagrantly” violated Renzi’s rights and called for much of the indictment to be thrown out.
But the three-judge panel said “we cannot agree,” citing in part a 1979 Supreme Court ruling that a former congressman from New Jersey could be prosecuted for promising to perform future legislative acts in exchange for payments, even if the acts themselves are protected.
Renzi, a Virginia resident who moved to Arizona in 1999, was accused of promising to pass legislation authorizing a swap of federal and private land near Phoenix that benefited a businessman who owed him $700,000. The businessman paid Renzi the money, but the legislation never passed.
The panel, stressing that congressional protections are limited, further cited a 1972 Supreme Court ruling that lawmakers cannot use the constitution as a shield while violating “an otherwise valid criminal law in preparing for or implementing legislative acts.’’
The judges also disputed a 2007 decision by the federal appellate court for D.C. that the FBI had infringed on constitutional protections while searching the Capitol Hill offices of former representative William J. Jefferson (D-La.), accusing the D.C. circuit of overreaching and misunderstanding previous court opinions.
A federal law enforcement official involved in public corruption cases said the new decision could “change the landscape” for some corruption investigations. The official, who asked not to be named, said that while the Jefferson ruling will still stand in Washington, the 9th Circuit decision will make it easier for investigators to use wiretaps or search congressional offices elsewhere.
“If it’s a search of a district it’s supported by this opinion. You can do it,’’ the official said.
One of Renzi’s attorneys, Brian M. Heberling, said, “We are disappointed by the ruling and are currently evaluating our options for further appellate review.”
Justice Department spokeswoman Laura Sweeney said, “We are extremely pleased.”
Melanie Sloan, executive director of the nonprofit group Citizens for Responsibility and Ethics in Government, also hailed the ruling but said that because the two circuits disagreed, “it appears the question of how broadly to interpret the Clause may be headed to the Supreme Court.”
Staff writer Jerry Markon contributed to this report.