A federal appeals court decision that paved the way for the Justice Department to proceed with its case against former Rep. Rick Renzi (R-Ariz.) for alleged corruption, extortion and fraud could set the stage for a Supreme Court showdown over a constitutional clause that errant lawmakers have used successfully in recent years to avoid criminal prosecution.
Though last week's ruling was a major victory for federal prosecutors in the 9th U.S. Circuit Court of Appeals — which hears appeals from lower federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and Guam — it will not affect cases brought against Capitol Hill lawmakers in courts in D.C. or other states outside that circuit's jurisdiction.
But should Renzi's lawyers appeal the decision, experts say it would provide the opportunity for the Supreme Court to resolve differing interpretations of the Constitution's Speech or Debate Clause. The 9th Circuit and the D.C. Court of Appeals differed on how broad a protection that clause provides.
"We have a circuit split — which is the most common reason for the Supreme Court to take a case — and it's clear cut," said law professor Jonathan H. Adler at Case Western Reserve University. "If I'm Renzi, I'm talking to my lawyers right now."
The criminal case against Renzi alleges that the former Arizona lawmaker promised to secure the mining rights on a parcel of land if the mining company agreed to purchase property from a former business associate who owed him more than $700,000, effectively generating a means for him to repay Renzi via a quid pro quo federal land exchange.
During the course of the government's investigation into the deal, which resulted in a sale but not a land swap, the former Congressman's aides were interviewed, his personal cell phone was wiretapped, and the office of an insurance business he owned was searched with a warrant. Renzi's attorneys at Steptoe & Johnson argued that although two separate grand juries indicted the former Congressman, the case against Renzi could not proceed because of a Speech or Debate Clause in the Constitution that protects legislators from investigation and prosecution by the president or the executive branch over actions undertaken as part of their official duties. The clause is designed to shield lawmakers from politically motivated intimidation schemes.
"The purpose is to make sure that Members of Congress have both the literal and figurative space to do their jobs," said Cornell University law professor Josh Chafetz.