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FBI wiretaps picked up the voices of several members of Congress in their conversations with Rep. Rick Renzi (R-Ariz.).
The House General Counsel’s office recently notified those members after the Department of Justice (DOJ) told the House lawyers that the lawmakers’ voices had been intercepted during the FBI’s investigation of Renzi’s land deal, according to three GOP sources.
It is unclear which members were taped and whether Renzi’s home, office, and/or cell phones were tapped. And there is no indication of alleged wrongdoing by any member other than Renzi; the Renzi indictment does not mention or allude to other legislators and the use of wiretaps is not mentioned in it.
The DOJ alleges that Renzi promised to support legislation for a land deal that netted him more than $700,000. He is facing 35 criminal counts, including conspiracy, money-laundering, extortion and insurance fraud.
Justice Department spokesman Paul Bresson declined to comment on the Renzi wiretaps. The House General Counsel’s office and Renzi’s lawyers did not return inquiries.
The notifications are not unique to members of Congress. Federal law requires the DOJ to notify any U.S. citizen or third party that he or she has been recorded in wiretapped conversations with the target of a criminal investigation after it has finished. The notification letters to the lawmakers cite the section of the law that requires them.
Renzi’s case is different, however, because his lawyers have raised possible violations of the Speech or Debate clause of the Constitution, which protects members’ legislative activity from intrusion by the executive branch. Ethics lawyers argue that wiretapping lawmakers’ phone calls could impinge on this privilege.
In successfully arguing last month to postpone the trial, Renzi’s lawyers noted that the case would involve both consensually recorded conversations and wiretaps, and that there will be complex motions involving the Speech or Debate clause. The judge in the case agreed Tuesday to push the trial date to October.
“Two members talking is presumptively privileged if they are talking about any kind of legislative matters in the conversation,” said Stanley Brand, a former House General Counsel.
Brand said the taped conversations could be innocuous, but stressed that any lawmaker notified should seek legal counsel.
Each of them, as well as Renzi, could decide to invoke the Speech or Debate privilege in an attempt to protect their conversations from being used in court. Members through counsel could ask the DOJ for a transcript of the conversation to make that determination.
The U.S. Supreme Court’s refusal last week to consider a DOJ appeal of a D.C. Circuit Court decision in the case against Rep. William Jefferson (D-La.) gives Renzi’s argument more credence.
A three-judge panel previously found that the 2006 FBI raid on Jefferson’s D.C. congressional 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.
Charles Tiefer, a professor at the University of Baltimore’s School of Law who served as the solicitor and deputy general counsel of the House for 11 years, said the courts have more often than not sided with members of Congress over the Justice Department in Speech or Debate cases.
“In the past, Congress has fought tooth and nail against the Justice Department about how the Speech or Debate clause has applied to third-party conversations,” Tiefer said. “The DOJ asserts the absence of third-party protections for members of Congress while Congress takes the Speech or Debate clause literally.”
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