It was the Speech or Debate Clause that former Rep. William Jefferson (D-La.) used to get evidence from an FBI raid of his Hill office tossed during a case over a bribery scheme in which he solicited payments to family-owned business in exchange for brokering deals in Africa. Though Jefferson was ultimately convicted based on evidence obtained from his home in the District — his freezer famously contained $90,000 in marked bills — it set a precedent in the D.C. Circuit that prosecutors argued could "critically undermine" their ability to prosecute public officials, according to court filings.
Cases against Renzi, ex-Reps. Tom Feeney (R-Fla.) and John Doolittle (R-Calif.) and Rep. Peter Visclosky (D-Ind.) and others are believed to have been delayed or complicated by the court's reading of the Speech or Debate Clause in the Jefferson case.
"That's where the action is, in the actual investigation and the gathering of evidence. The trend, at least in the D.C. Circuit, is to make that harder," said Barnes & Thornburg attorney Solomon L. Wisenberg.
The 9th Circuit devoted an entire section in its 45-page opinion to the reasons it did not agree with the D.C. Circuit's decision in the Jefferson case.
"Simply stated, we cannot agree with our esteemed colleagues on the D.C. Circuit. We disagree with both [the case's] premise and its effect and thus decline to adopt its rationale," Judge Richard Tallman wrote on behalf of the three-judge panel.
The wording all but invites an appeal to the Supreme Court, experts said.
"Given that the Court explicitly declined to follow the D.C. Circuit's decision in Rayburn [Jefferson], it appears the question of how broadly to interpret the Clause may be headed to the Supreme Court," said a statement from Melanie Sloan, executive director at Citizens for Responsibility and Ethics in Washington, which filed a friend-of-the-court brief supporting the Justice Department's position in the Renzi case.