Resolution Copper refused to cooperate, but another company, Preserved Petrified Forest Land Investors LLC of Las Vegas, agreed to buy the land. Prosecutors allege this netted Renzi more than $700,000.
Renzi twice introduced a land swap bill, in 2005 and 2006, before taking his name off of the measure after the FBI raided his family business in April 2007. Rep. Ed Pastor (D-Ariz.) then introduced the legislation on Aug. 1, 2007, along with Arizona Reps. Jeff Flake and John Shadegg, both Republicans, and Democrat Harry Mitchell (D).
Sens. McCain and Kyl introduced companion legislation in the Senate, most recently in July 2007.
Ethics lawyers interviewed for this article said the interviews and correspondences with congressional offices could help Renzi’s attorneys raise separation-of-powers issues.
In particular, they said Renzi’s legal team might raise the Speech or Debate Clause of the Constitution, which protects members’ legislative activity from intrusion from the other branches of government.
Earlier this year, the U.S. Supreme Court refused to consider a Department of Justice appeal of a D.C. Circuit Court decision in the bribery case against Rep. William Jefferson (D-La.). Ethics lawyers said this decision could give a Renzi Speech or Debate argument more credence.
The D.C. court found that the 2006 FBI raid on Jefferson’s D.C. office violated the Speech or Debate Clause. Specifically, the judges found that an FBI review of Jefferson’s paper files when the search was executed exposed legislative material to the executive branch, and therefore violated the clause.
“D.C. circuit opinions have expanded the scope of what’s protected under the Speech and Debate Clause from statements on the floor of the House and Senate to include basically any legislative function, not just by the member, but by the staff as well,” said Brett Kappel, an attorney at Vorys, Sater, Seymour and Pease.
Renzi’s attorneys will want to know whether any kind of neutral counsel was present at those staffer interviews to screen for possible Speech or Debate issues and to ensure attorney-client privileges were not violated.
“Even if all parties are acting in good faith, if something gets said during a one-on-one ‘voluntary’ interview between congressional staff and an FBI investigator that should have been protected under the Constitution, it is impossible to put that toothpaste back in the tube,” said Stefan C. Passantino, an ethics lawyer at McKenna Long & Aldridge LLP.
Kappel also mentioned that prosecutors are required to give the defense any documents they have uncovered that could be exculpatory. Some of the information could discuss the legitimate benefits for the state of Arizona for passing the land-swap bills, points that would appear to contradict the government’s case that Renzi was motivated primarily by his interest in pocketing money from a side deal.
“Renzi’s lawyers will want to have as much of that information as possible to try to refute the government’s argument that Renzi acted because of an improper or illegal motive,” Kappel said.
Prosecutors also told Renzi’s lawyers that they will give them an opportunity “to inspect and copy” any documents obtained from current or former staffers related to congressional work on the land exchange.
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