Legislators Using Law As Shield In Probes

By Carrie Johnson, Washington Post

November 1, 2008

A constitutional clause designed to protect members of Congress from abusive or harassing lawsuits is increasingly being used by lawmakers as a shield in public corruption investigations, frustrating investigators even as the FBI attempts to police wrongdoing at a pace not seen since the Watergate scandal.

Under a constitutional provision known as the "speech or debate clause," lawmakers have wide protections that cover their work on Capitol Hill. That means legislation, floor speeches, and wiretaps that capture information related to votes and strategy are often out of bounds in developing a criminal case.

The latest lawmaker to seize on the controversial legal argument is Rick Renzi (R-Ariz.), who is citing the wiretaps of his Verizon Wireless BlackBerry in trying to persuade a court to throw out charges of fraud, extortion and conspiracy against him.

For four weeks surrounding the 2006 midterm elections, FBI agents secretly listened as Renzi and fellow House members traded phone calls to gossip about congressional leadership races and fret over the future of the Republican Party. The conversations also revealed intrigue and favor-trading among House members and their aides.

Earlier this week, Renzi received a boost when the House leadership, both Republicans and Democrats, asked the judge in his case for permission to file a friend-of-the-court brief in support of at least some of Renzi's arguments.

With 3,500 open cases across state, local and federal government, FBI Director Robert S. Mueller III has called targeting corrupt officials the bureau's "top criminal priority."

But critics say Congress members suspected of using their offices for personal gain are using the law as a shield.

"It's the biggest issue in federal corruption prosecutions," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington and a former federal prosecutor. "If courts continue to expand the breadth of the clause, we are likely to see more bribery and other illegal conduct by legislators go unpunished."

Recent examples of the constitutional tug of war abound:

· In their ethics indictment of Sen. Ted Stevens (R-Alaska), prosecutors referred elliptically to legislative favors that Stevens did for oil services company Veco and others in exchange for home improvements and gifts. But they refrained from presenting that material to the jury or including an explicit bribery charge in the indictment in part because of the lawmaker's legal protections. Before his conviction Monday, Stevens had attempted without success to get the trial judge to throw out some of the evidence against him by citing the constitutional clause. The issue could form one basis for his likely appeal, analysts said.

· The bribery case against Rep. William J. Jefferson (D-La.) has been stalled for more than two years after FBI agents raided his congressional office, largely because of fights over whether investigators exceeded their authority. A federal appeals court in the District has already barred prosecutors from using information gathered in the raid. The case now hinges on $90,000 in cash found in the lawmaker's freezer, which the government contends was bribes from telecommunications companies. Jefferson is fighting the allegations.

· Long-running investigations of Rep. John T. Doolittle (R-Calif.) and former House majority leader Tom DeLay (R-Tex.) and their connection to disgraced lobbyist Jack Abramoff have slowed to a crawl because of debates about the scope of the speech or debate clause.

· The top lawyer for the House last year cited the legal protection in his successful attempt to quash a subpoena to appropriations panel staff member Greg Lankler. Prosecutors sought Lankler's testimony in their investigation of a lobbying firm's ties to Rep. Jerry Lewis (R-Calif.).

Legal experts say that lawmakers' aggressive use of the clause poses problems for the Justice Department's public integrity section. Earlier this year, prosecutors unsuccessfully sought to persuade the Supreme Court to overturn the ruling in the Jefferson case, saying that if the lower-court decision persisted, it would call "vital investigative techniques into immediate and serious question."

The Renzi prosecution will test those boundaries. Once a rising GOP star and a protege of Sen. John McCain (R-Ariz.), Renzi announced he would not run for reelection amid the intensifying investigation of a land-swap deal that he helped broker. Instead, he is channeling his energy to fight a 35-count indictment handed down in February. Last week, he asked a judge to dismiss charges against him or, at a minimum, to exclude taped conversations and critical testimony from his assistants that may have been obtained in violation of the speech or debate protections.

Brian Heberlig and Kelly Kramer, Renzi's attorneys, said that investigators had improperly snooped on "hundreds of phone calls between Renzi and his legislative aides and 16 phone calls between Renzi and other members of Congress."

The exchanges included a call involving the entire Republican conference days after the 2006 midterm elections, a chat between Renzi and Rep. Jack Kingston (R-Ga.) about their votes for House GOP leadership candidates and another conversation between Renzi and Rep. John Shadegg (R-Ariz.) about election results and the performance of the National Republican Congressional Committee.

"The volume of protected legislative acts seized during the wiretap is staggering," the defense lawyers wrote.

Wyn Hornbuckle, a spokesman for the U.S. attorney in Arizona, who is leading the Renzi case, said prosecutors will "reserve comment" on Renzi's arguments until filing a formal response next month.

In a memo prepared by government lawyers before the wiretaps in October 2006, prosecutors contended that constitutional restrictions would not apply because the eavesdropping would occur while Congress was out of session. They planned for a special team to review evidence touching on legislative activity, but made an exception for talk related to the land swap.

The problem, defense lawyers and outside experts say, is that their approach directly conflicts with the U.S. Court of Appeals ruling in the Jefferson case.

Before that decision, the speech or debate clause had been interpreted narrowly: If investigators did not disturb Congress's work, their strategies to uncover corruption were fair game. But the Jefferson ruling broadened the definition of "legislative activity." Originally, the provision was meant to protect lawmakers' independence and to shield them from unfair attacks by political or executive branch rivals, scholars say.

"This is the balance that you see trying to be worked out," said Joshua Berman, a former prosecutor who is now a defense lawyer in Washington. "The limits of how far the speech and debate clause goes are going to get played out in the courts."

Meanwhile, Justice Department officials and House and Senate lawyers continue to negotiate investigative steps that FBI agents may take to root out Capitol Hill corruption. The talks began after the Jefferson raid ignited a clash.

Robert Walker, a former federal prosecutor and counsel for the House and Senate ethics panels, said the Jefferson raid, as well as efforts to compel legislative aides to tape conservations with their supervisors, are "extraordinary" steps.

"These are going out toward the edge. In and of themselves they do raise issues central to the speech or debate clause, about whether the tactics themselves are intimidating to the independence of the legislature," Walker said.

"Speech or debate is not an absolute privilege, but the courts have been pretty clear that when it applies, it applies absolutely," said Elliot S. Berke, a former top lawyer for DeLay and onetime House speaker J. Dennis Hastert (R-Ill.).