The Institutional Speech or Debate Protection: Nondisclosure as Separation of Powers
Carroll, Ethan L., Duke Law Journal
The Speech or Debate Clause encompasses certain privileges that inure to the benefit of legislators. But its nondisclosure protection secures legislative--not legislators'--independence. This nondisclosure protection provides Congress as an institution the procedural right to assert its interests prior to the executive branch's compelling the disclosure of legislative acts and corresponding documentary materials. Reading the opinion of the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building as a separation-of-powers case distinguishes this institutional, procedural protection from a so-called "nondisclosure privilege" against any compelled disclosure, which was rejected by the U.S. Court of Appeals for the Ninth Circuit in United States v. Renzi. The D.C. Circuit's construction of the Speech or Debate Clause in Rayburn leaves executive-branch officials considerable latitude to investigate Members of Congress, subject to procedural constraints. Because the value the Clause protects is democratic representation, rather than legislative independence per se, the question of nondisclosure is one of protective procedure, not of privilege: Congress, not the executive branch, gets to make first determinations as to privilege.
James Madison wrote in The Federalist that after defining the three classes of constitutional power--"legislative, executive, and judiciary"--"the next and most difficult task" was "to provide some practical security for each against the invasion of the others." (1) Originally written in outlining the American constitutional scheme for separation of powers, these words assumed new significance 218 years later when, on May 20, 2006, Federal Bureau of Investigation (FBI) officials entered, sealed, and searched the congressional office of then-Congressman William Jefferson, the first time an executive agency had ever searched without permission the Capitol Hill office of a sitting Member of Congress. (2)
A few months later, (3) federal prosecutors opened an investigation of then-Congressman Richard Renzi for honest services wire fraud in connection with his allegedly bribed promises to sponsor federal public-land-exchange legislation. (4) In the course of the investigation and pursuant to a Title III order, (5) the FBI tapped the Congressman's personal cell phone. (6) The FBI also reviewed documents Congressman Renzi's aide took from the Congressman's office. (7)
Congressmen Renzi and Jefferson both challenged the respective investigations as violating Article I, Section 6, Clause 1 of the Constitution (the Speech or Debate Clause), (8) which provides that "for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned." (9) The D.C. Circuit's holding in United States v. Rayburn House Office Building (10) that "the compelled disclosure of privileged material to the Executive during execution of the search warrant ... [for Congressman Jefferson's office] violated the Speech or Debate Clause" (11) set off a firestorm of commentary, as it was the first time a federal court of appeals had construed the Clause to encompass a "nondisclosure privilege." (12) The Ninth Circuit in United States v. Renzi (13) declined to follow the D.C. Circuit, refusing to recognize this "grandiose, yet apparently shy, privilege of non-disclosure," (14) which "would jeopardize law enforcement tools that have never been considered problematic." (15)
The Speech or Debate Clause (the Clause) "protect[s] against possible prosecution by an unfriendly executive and conviction by a hostile judiciary." (16) The paradigmatic abuse against which the Clause protects is an executive-branch official harassing a legislator and that harassment influencing the legislator's vote, thus frustrating democratic representation. (17) As such, the Clause safeguards democratic representation and legislative independence by endowing Members with certain privileges. …