When the Supreme Court declined to hear former Rep. Rick Renzi's latest appeal Monday, it was the latest blow to Congress' ability to shield its work from prosecutors under the Constitution's Speech or Debate Clause.
An amicus brief filed in April by the House's Bipartisan Legal Advisory Group warned of dire consequences for Congress unless the court struck down the 9th U.S. Circuit Court of Appeals' ruling against Renzi's defense.
"The Ninth Circuit rulings, if allowed to stand, would decimate the protections of the clause, and with them the independence of the legislative branch," the House's lawyers argued.
A denial of cert by the Supreme Court doesn't set a national precedent, but allows one to continue in the 9th Circuit.
The House's lawyers warned that unless the Supreme Court intervened, it would have a chilling effect on members of Congress in the 9th Circuit and likewise in communications from members outside that jurisdiction to those serving under the precedent provided by the Renzi case.
But the three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in upholding Renzi's 2013 conviction on 17 counts in October, wrote “congressmen may write the law, but they are not above the law.”
Prosecutors introduced evidence that Renzi misappropriated clients’ insurance premiums to fund his 2002 congressional campaign and lied to insurance regulators and clients to cover his tracks. Renzi’s charges also involved a 2005 conspiracy to extort private businesses to purchase land owned by friend and business partner James Sandlin. In exchange, Renzi, who had a seat on the House Natural Resources Committee at the time, promised to support favorable federal land exchange legislation, the ruling states. “The Constitution and our citizenry entrust congressmen with immense power,” the 9th Circuit ruling states. “Former Congressman Renzi abused the trust of this nation, and for doing so, he was convicted by a jury of his peers.” Renzi argued testimony from his former district director, Joanne Keene, inquired into his legislative acts in violation of the clause. Keene told the jury that Renzi told her in fall 2005 that “he wanted to put the brakes on” a land exchange because another lawmaker, Rep. Duke Cunningham, had been indicted on public corruption charges. The 9th Circuit ruling found that Keene’s testimony, however, directly rebutted testimony elicited by Renzi about his reasons for backing off of his support. “We conclude that Renzi’s introduction of this evidence opened the door for the government to introduce rebuttal evidence on this point,” the ruling states. Renzi and the Bipartisan Legal Advisory Group of the United States House of Representatives, which filed an amicus brief in the appeal, argued that conclusion goes against a Supreme Court ruling. The Supreme Court found a waiver of the privilege, if even possible, “can be found only after explicit and unequivocal renunciation of the [Speech or Debate Clause] protection,” Renzi and BLAG pointed out. The 9th Circuit’s conclusion would mean a lawmaker waived his Speech and Debate privilege by introducing evidence of his own legislative acts—which is not an explicit renunciation, Renzi and BLAG argued. The 9th Circuit, however, concluded Thursday that the Supreme Court addressed a congressman’s willingness to testify before a grand jury, and was distinct from the limited rebuttal evidence at issue in Renzi’s case.
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