By Susan Crabtree - 09/20/09 10:59 PM EDT
A judge has rejected former Rep. Rick Renzi’s attempts to prevent a majority of the evidence gathered from wiretaps and search warrants, as well as interviews with his former aides, from being admitted in his corruption trial.
Magistrate Judge Bernardo Velasco determined that the Arizona Republican’s interpretation of constitutional separation-of-powers protections was overly broad and should not protect all of the information derived from taped phone calls and interviews with former aides. He made the argument in a court document filed Wednesday.
As a magistrate judge, Velasco’s determination serves as a recommendation to the district court, which will hear oral arguments on the issue Dec. 9, and then make a final ruling.
The decision could erode a controversial precedent set in the corruption case against former Rep. William Jefferson (D-La.), who was recently convicted on 11 counts. In 2007, a federal appeals court ruled the FBI’s raid of Jefferson’s Rayburn House Office Building violated the Constitution’s Speech or Debate clause because it allowed the executive branch to review materials that were part of the legislative process.
Because of the ruling, Jefferson had the right to demand that the government return items covered by the clause, which protects members from prosecution for some things they say or do in pursuit of legislative activity.
Velasco argued that the appeals court “got in wrong” in that decision, citing other relevant Supreme Court decisions including Gravel v. United States and Nixon v. United States.
"Together, the Supreme Court's holding in Gravel, that the Speech or Debate Clause does not provide a privilege to ‘violate an otherwise valid criminal law in preparing for or implementing legislative acts’…," he wrote. “And in Nixon, that a generalized interest in confidentiality cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice, unequivocally demonstrate that Rayburn got it wrong in concluding that the context of the case is irrelevant to the outcome."
Renzi is accused of promising to support legislation for a land deal that allegedly netted him more than $700,000. He is facing many criminal counts, including conspiracy, money-laundering, extortion and insurance fraud.
His legal team had argued that the interviews and the phone calls involved discussions of privileged legislative acts protected under the Speech or Debate clause of the Constitution. Information exchanged during those interviews and phone calls provided the basis for the search warrants of Renzi’s insurance company offices so information found during the search also should not be allowed in court, his attorneys argued.
Prosecutors countered that their case does not rely on information related to legislative activity. The Speech or Debate clause protects some legislative activity from the DOJ, but it does not prevent members of Congress from being investigated for criminal activity, they argued.
Velasco also determined that the phone calls caught on a wiretap were not all privileged, especially considering that the cell phone tapped was one Renzi used for private business, and was not an official line in Renzi’s office or a cell phone paid for with taxpayer dollars.
“…The target telephone in this case was subscribed to by the Patriot Insurance Agency, and was not an official line in Renzi's office, or a cell phone maintained by his office,” Velasco wrote.
In his recommendation, Velasco also included a list of House members caught on the FBI wiretap. He determined that all of these calls are protected and none of their contents should be admissible. In April 2008, The Hill reported the DOJ had informed members that their calls were intercepted during a preliminary investigation of Renzi.
Many of the member calls took place amid a heavily contested GOP leadership election after Democrats won the majority in 2006. There were 16 calls between Renzi and other members caught on tape, the filing notes, including calls with Minority Leader John Boehner (R-Ohio), Minority Whip Eric Cantor (R-Va.), Reps. Jack Kingston (R-Ga.), Marsha Blackburn (R-Tenn.), Tom Cole (R-Okla.), John Carter (R-Texas), Trent Franks (R-Ariz.), Adam Putnam (R-Fla.), Kay Granger (R-Texas) and Patrick Kennedy (D-R.I.), as well as then-Reps. Deborah Price (R-Ohio), Tom Reynolds (R-N.Y.) and J.D. Hayworth (R-Ariz.).
When it came to contents of interviews and recorded calls with five Renzi aides, however, the judge ruled some information admissible, as long as it did not deal exclusively with privileged legislative activity. A Supreme Court decision in Gravel vs. United States noted that the Speech or Debate clause does not exempt aides from being questioned and only protects them from answering questions about “services that would be immune legislative conduct if performed by the [Member] himself.”
“There is no support, however, for Renzi’s bald contention that the court should suppress all evidence obtained by the government during these interviews,” he wrote. “The scope of the Speech or Debate clause is judicially determined. It is highly unlikely that in the criminal prosecution of a member, or former member, of Congress, especially for honest services violations, would there be no incident divulging, or even questioning, about legislative acts.”
Both sides have 10 days to object to Velasco’s recommendations. Magistrate Judge Bernardo Velasco made the recommendation to the district judge, who is scheduled to hear oral arguments about the issue December 4.
The magistrate judge has yet to rule on another Renzi motion to dismiss the case because prosecutors violated his attorney-client privilege by monitoring phone calls between Renzi and his lawyers.
Renzi’s lawyers argue that prosecutors wrongfully recorded more than 50 calls protected by attorney-client privilege and then used them in the investigation.
Before recorded conversations are handed over to prosecutors, it is routine for a “taint team” of Justice Department attorneys to review the wiretapped discussions.
Renzi’s attorneys argue that in at least four circumstances, the prosecutors ignored the taint team’s conclusions that the calls were privileged.
Information gleaned from these and other privileged phone calls, they contend, helped investigating agents and prosecutors to identify new areas of inquiry, to obtain a warrant authorizing the search of Renzi’s family insurance business and to garner information to make the charges in the indictment.
Government prosecutors counter that they did not use any of the privileged phone calls to make their case.