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.
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.
Former Sen. Scott Brown, R-Mass., candidate for U.S. Senate in New Hampshire, holds his hand over his heart during the singing of the national anthem as he waits to take the stage for his town hall campaign rally with Sen. John McCain at the Pinkerton Academy in Derry, N.H., on Monday, Aug. 18, 2014.