The Speech or Debate Clause

In United States v. Brewster, 408 U.S. 571 (1972), the Court decided that a Member accused of taking bribes in connection with the introduction of postal rate legislation could not have those bills used against him in the trial. The Court was faced with the indictment of a Senator accused of accepting bribes from a lobbyist in return for introduction of postal-rate legislation. The Senator moved before trial to dismiss the indictment, which the district court granted as to the counts of the indictment directly charging Brewster with bribes accepted in connection with “his action, vote and decision on postage-rate legislation which might at any time be pending before him in his official capacity ' ” The government petitioned for a direct appeal to the Supreme Court, which the Court agreed to hear.

The Court ruled that the Clause did not extend to all conduct relating to official acts of legislators. Finding that the Framers intended to shield only conduct necessary to preserve the integrity of the legislative process, the Court held that the indictment could be tried, provided the government did not seek to introduce or prove the performance of legislative acts ' voting, deliberating or debating a bill. The Court made clear that the illegal conduct charged in the indictment was “taking or agreeing to take the money for a promise to act in a certain way,” and that “acceptance of the bribe is the violation of statute, not performance of the illegal promise.”

Ten years later, the Court held that prosecution of a Member of Congress for bribery permitted charging a Member with having entered into an “illegal compact” by accepting a bribe in return for an official act because that the Clause does not cover “promises” to perform future legislative acts in return for things of value. United States v. Helstoski, 442 U.S. 477 (1979). Helstoski involved the indictment of a Congressman for allegedly taking bribes in return for the introduction and consideration of private immigration bills on behalf of individuals seeking permanent citizenship status. The government intended to use the bills as evidence against the Congressman during its case-in-chief, but the lower courts had suppressed this evidence, finding that it would violate the Clause. The Supreme Court affirmed, finding that the Clause would indeed be violated if the government were permitted to “question” a Member at trial about his legislative acts.

In a companion case, the Court left open the question of whether Helstoski's indictment should have been dismissed because the grand jury was presented speech-or-debate evidence against him. Helstoski had sought an appellate ruling on this issue by mandamus, but the Court ruled that the issue was reviewable only by direct appeal after a district court's denial of a motion to dismiss the indictment. Helstoski v. Meanor, 442 U.S. 500 (1979). Significantly, the Court held that a Member of Congress was entitled to a pretrial appeal of any denial of a motion to dismiss an indictment based on speech or debate violations before the grand jury.

A Different Legislative Context

The Renzi case presents the same issues in a slightly different legislative context. Renzi argues that Brewster and Helstoski prevent the government from using legislative evidence against him.

Helstoski permits the government to prove that a Member of Congress entered into an illicit extortion agreement without trenching on legislative terrain in violation of the Clause. Like so many areas of constitutional law which the Supreme Court mediates, the Court has had to reconcile constitutional limitations imposed on governmental power with the important principle that criminal statutes apply equally to the nation's highest elected officials.

The Supreme Court, while acknowledging that the Speech or Debate Clause will make some bribery prosecutions more difficult, ruled in Helstoski that the Clause does not preclude them because promises “by a member to perform an act in the future are not legislative acts,” and that an “illegal compact” between a legislator and a briber “may be shown without impinging on the legislative function.”

Since United States v. Johnson (1966), the Clause has been contested numerous times in the lower courts. As the Department of Justice (DOJ) has energetically and routinely pursued public-corruption prosecutions of federal legislators in the post-Watergate era, the Clause has become a significant bone of contention between federal prosecutors and congressional defendants. Clearly, the Clause runs counter to the age old legal maxim that the “law is entitled to everyman's evidence” because it removes a species of evidence ' legislative acts ' from the government's arsenal.

A Compelling Societal Goal

The privilege does much (like the attorney-client, marital, and other common-law privileges) to further a compelling societal goal. With the speech-and-debate privilege, that goal is to insure the independence of legislators from intimidation and harassment by a possibly hostile executive or judicial branch. To effect its purpose, it has been interpreted broadly (although not without limits) to shield inquiry into speeches in the chamber, actions in committee hearings, issuance of subpoenas, the gathering of information for hearings, and the publication of reports. On the other hand, it has been held not to protect certain acts not directly linked to enacting legislation, such as disseminations to the media, importuning executive agencies, or campaigning for office.

The Third Circuit, for example, has upheld dismissal of an indictment where the grand jury considered speech-or-debate evidence. United States v. Helstoski, 635 F.2d 200 (3rd Cir. 1980) (affirming district court dismissal of indictment based on grand jury consideration of legislative acts). The government argued unsuccessfully that the Clause does not protect the Congresspeople from application of the bribery statute, and that although it prevents the “use” of legislative acts against the congressman in his trial, it does not prevent the government from receiving information disclosed about his legislative acts in the course of the grand jury investigation.

The Renzi Case

The Renzi case illustrates the opposing arguments posited by prosecution and defense and could ultimately wind up in the Supreme Court for further refinement of the Court's jurisprudence on the scope of the Clause. In its essentials, the government alleges that then-Congressman Richard G. Renzi promised private parties he would introduce land exchange legislation, but only if the private parties would purchase separate parcels of land in which the Congressman had a hidden interest and then would include that land in the legislative exchange. If the government had simply charged that as a crime, there would be no speech-or-debate issue, because the Clause is clearly inapplicable to a bare promise to introduce legislation in return for something of value.

Where the government may have overstepped the bounds of the Clause is in attempting to use legislative acts against Rep. Renzi in developing its case. In the grand jury investigation, for example, the government used (and apparently intends to use at trial) Renzi's drafting of bills, introducing legislation, offering amendments, and communicating with his congressional staff. Because the Speech or Debate clause prohibits a grand jury from considering legislative acts or charging them in an indictment, Renzi argues that the entire case must be dismissed to vindicate the important constitutional principles of separation of powers embodied in the Clause.

The government created a constitutional issue for the defense when it sought to gild the lily by showing all the legislative acts performed pursuant to the illegal promise. That is barred to them for the reasons explained by the Supreme Court in Brewster. The Renzi prosecutors failed to heed the Supreme Court's advice in Brewster that they “need not show any act of [the Member] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illegal compact, that is a criminal act.”

As a practical matter, in retrials on remand the government has been able to convict federal legislators after the courts have reversed initial convictions because of impermissible reliance on legislative evidence, such as the conduct of committee hearings, the membership on specific House committees with jurisdiction of the statutes on which the legislators were convicted, or bills that were introduced in furtherance of the bribery schemes. These convictions demonstrate that the government has been able to ferret out crime in Congress without violating the privilege intended by the Framers to insure legislative independence and the separation of powers.

Stanley M. Brand ([email protected]) served as General Counsel to the House of Representatives from 1976 to 1983. He is currently a principal at the Brand Law Group, a Washington, DC-based criminal and civil litigation firm, and Distinguished Professor of Law and Government at the Penn State Dickinson School of Law.

The U.S. Constitution provides unique immunity for federal legislators from prosecution, civil liability, and having to defend themselves outside the Congress for the performance of legislative acts: For “any Speech or Debate in either House,” Representatives and Senators “shall not be questioned in any other place.” U.S. Const. Art. I, ' 6, cl. 1. The Clause was developed in England over centuries of struggle between the Crown and Parliament to protect disfavored legislators from the wrath of the King. It was adopted at the Constitutional Convention without controversy and was largely of historical interest until the Supreme Court interpreted it in a criminal prosecution of a member of the House in 1966. United States v. Johnson , 383 U.S. 169 (1966). A recent indictment of a former Member of Congress has rekindled the legal debate over the scope and effect of the Speech or Debate clause and perhaps presages a return to the Supreme Court for a ruling to settle the conflict among the circuit courts about interpretation of the Clause. United States v. Renzi, et al., No. CR 08 022-TUC-DCB (D. Ariz.).

Some History

Before discussing Renzi, it may be helpful to review the historical context. Two cases interpreting the Clause from three decades ago represent the seminal pronouncements by the Court on the scope, application and effect of this provision on the criminal prosecution of Members of Congress.

In United States v. Brewster , 408 U.S. 571 (1972), the Court decided that a Member accused of taking bribes in connection with the introduction of postal rate legislation could not have those bills used against him in the trial. The Court was faced with the indictment of a Senator accused of accepting bribes from a lobbyist in return for introduction of postal-rate legislation. The Senator moved before trial to dismiss the indictment, which the district court granted as to the counts of the indictment directly charging Brewster with bribes accepted in connection with “his action, vote and decision on postage-rate legislation which might at any time be pending before him in his official capacity ' ” The government petitioned for a direct appeal to the Supreme Court, which the Court agreed to hear.

The Court ruled that the Clause did not extend to all conduct relating to official acts of legislators. Finding that the Framers intended to shield only conduct necessary to preserve the integrity of the legislative process, the Court held that the indictment could be tried, provided the government did not seek to introduce or prove the performance of legislative acts ' voting, deliberating or debating a bill. The Court made clear that the illegal conduct charged in the indictment was “taking or agreeing to take the money for a promise to act in a certain way,” and that “acceptance of the bribe is the violation of statute, not performance of the illegal promise.”

Ten years later, the Court held that prosecution of a Member of Congress for bribery permitted charging a Member with having entered into an “illegal compact” by accepting a bribe in return for an official act because that the Clause does not cover “promises” to perform future legislative acts in return for things of value. United States v. Helstoski , 442 U.S. 477 (1979). Helstoski involved the indictment of a Congressman for allegedly taking bribes in return for the introduction and consideration of private immigration bills on behalf of individuals seeking permanent citizenship status. The government intended to use the bills as evidence against the Congressman during its case-in-chief, but the lower courts had suppressed this evidence, finding that it would violate the Clause. The Supreme Court affirmed, finding that the Clause would indeed be violated if the government were permitted to “question” a Member at trial about his legislative acts.

In a companion case, the Court left open the question of whether Helstoski's indictment should have been dismissed because the grand jury was presented speech-or-debate evidence against him. Helstoski had sought an appellate ruling on this issue by mandamus, but the Court ruled that the issue was reviewable only by direct appeal after a district court's denial of a motion to dismiss the indictment. Helstoski v. Meanor , 442 U.S. 500 (1979). Significantly, the Court held that a Member of Congress was entitled to a pretrial appeal of any denial of a motion to dismiss an indictment based on speech or debate violations before the grand jury.

A Different Legislative Context

The Renzi case presents the same issues in a slightly different legislative context. Renzi argues that Brewster and Helstoski prevent the government from using legislative evidence against him.

Helstoski permits the government to prove that a Member of Congress entered into an illicit extortion agreement without trenching on legislative terrain in violation of the Clause. Like so many areas of constitutional law which the Supreme Court mediates, the Court has had to reconcile constitutional limitations imposed on governmental power with the important principle that criminal statutes apply equally to the nation's highest elected officials.

The Supreme Court, while acknowledging that the Speech or Debate Clause will make some bribery prosecutions more difficult, ruled in Helstoski that the Clause does not preclude them because promises “by a member to perform an act in the future are not legislative acts,” and that an “illegal compact” between a legislator and a briber “may be shown without impinging on the legislative function.”

Since United States v. Johnson (1966), the Clause has been contested numerous times in the lower courts. As the Department of Justice (DOJ) has energetically and routinely pursued public-corruption prosecutions of federal legislators in the post-Watergate era, the Clause has become a significant bone of contention between federal prosecutors and congressional defendants. Clearly, the Clause runs counter to the age old legal maxim that the “law is entitled to everyman's evidence” because it removes a species of evidence ' legislative acts ' from the government's arsenal.

A Compelling Societal Goal

The privilege does much (like the attorney-client, marital, and other common-law privileges) to further a compelling societal goal. With the speech-and-debate privilege, that goal is to insure the independence of legislators from intimidation and harassment by a possibly hostile executive or judicial branch. To effect its purpose, it has been interpreted broadly (although not without limits) to shield inquiry into speeches in the chamber, actions in committee hearings, issuance of subpoenas, the gathering of information for hearings, and the publication of reports. On the other hand, it has been held not to protect certain acts not directly linked to enacting legislation, such as disseminations to the media, importuning executive agencies, or campaigning for office.

The Third Circuit, for example, has upheld dismissal of an indictment where the grand jury considered speech-or-debate evidence. United States v. Helstoski , 635 F.2d 200 (3rd Cir. 1980) (affirming district court dismissal of indictment based on grand jury consideration of legislative acts). The government argued unsuccessfully that the Clause does not protect the Congresspeople from application of the bribery statute, and that although it prevents the “use” of legislative acts against the congressman in his trial, it does not prevent the government from receiving information disclosed about his legislative acts in the course of the grand jury investigation.

The Renzi Case

The Renzi case illustrates the opposing arguments posited by prosecution and defense and could ultimately wind up in the Supreme Court for further refinement of the Court's jurisprudence on the scope of the Clause. In its essentials, the government alleges that then-Congressman Richard G. Renzi promised private parties he would introduce land exchange legislation, but only if the private parties would purchase separate parcels of land in which the Congressman had a hidden interest and then would include that land in the legislative exchange. If the government had simply charged that as a crime, there would be no speech-or-debate issue, because the Clause is clearly inapplicable to a bare promise to introduce legislation in return for something of value.

Where the government may have overstepped the bounds of the Clause is in attempting to use legislative acts against Rep. Renzi in developing its case. In the grand jury investigation, for example, the government used (and apparently intends to use at trial) Renzi's drafting of bills, introducing legislation, offering amendments, and communicating with his congressional staff. Because the Speech or Debate clause prohibits a grand jury from considering legislative acts or charging them in an indictment, Renzi argues that the entire case must be dismissed to vindicate the important constitutional principles of separation of powers embodied in the Clause.

The government created a constitutional issue for the defense when it sought to gild the lily by showing all the legislative acts performed pursuant to the illegal promise. That is barred to them for the reasons explained by the Supreme Court in Brewster. The Renzi prosecutors failed to heed the Supreme Court's advice in Brewster that they “need not show any act of [the Member] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illegal compact, that is a criminal act.”

As a practical matter, in retrials on remand the government has been able to convict federal legislators after the courts have reversed initial convictions because of impermissible reliance on legislative evidence, such as the conduct of committee hearings, the membership on specific House committees with jurisdiction of the statutes on which the legislators were convicted, or bills that were introduced in furtherance of the bribery schemes. These convictions demonstrate that the government has been able to ferret out crime in Congress without violating the privilege intended by the Framers to insure legislative independence and the separation of powers.

Stanley M. Brand ([email protected]) served as General Counsel to the House of Representatives from 1976 to 1983. He is currently a principal at the Brand Law Group, a Washington, DC-based criminal and civil litigation firm, and Distinguished Professor of Law and Government at the Penn State Dickinson School of Law.