FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10088
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-00212-DCB-
RICHARD G. RENZI, BPV-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
February 17, 2011—San Francisco, California
Filed June 23, 2011
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and Suzanne B. Conlon, District Judge.*
Opinion by Judge Tallman
*The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
8507
UNITED STATES v. RENZI 8511
COUNSEL
Lanny A. Breuer, Assistant Attorney General; Jack Smith,
Chief, Public Integrity Section, Criminal Division, United
States Department of Justice; Andrew Levchuk (argued),
Senior Trial Attorney, Public Integrity Section; Dennis K.
Burke, United States Attorney, District of Arizona; Gary M.
Restaino, Assistant United States Attorney; for plaintiff-
appellee/cross-appellant United States of America.
Reid H. Weingarten, Brian M. Heberlig (argued), Linda C.
Bailey, Steptoe & Johnson LLP, Washington, D.C.; Kelly B.
Kramer, Nixon Peabody LLP, Washington, D.C.; for
defendant-appellant/cross-appellee Richard G. Renzi.
Irvin B. Nathan, General Counsel, Office of General Counsel,
United States House of Representatives, Washington, D.C.;
Kerry W. Kircher, Deputy General Counsel (argued); Chris-
tine M. Davenport, John D. Filamor, Katherine E. McCarron,
Ariel B. Waldman, Assistant Counsels; for Amicus Curiae
Bipartisan Legal Advisory Group of the United States House
of Representatives in Support of Reversal.
Melanie Sloan, Washington, D.C., for Amicus Curiae Citizens
for Responsibility and Ethics in Washington in Support of
Affirmance.
8512 UNITED STATES v. RENZI
OPINION
TALLMAN, Circuit Judge:
Former Arizona Congressman Richard G. Renzi seeks to
invoke the Speech or Debate Clause1 to preclude his prosecu-
tion for allegedly using his public office to benefit himself
rather than his constituents. The indictment against him
alleges that Renzi offered two private parties a quid pro quo
deal. If they would buy private land owned by a former busi-
ness partner—a sale that would generate enough cash to repay
a debt owed to Renzi—the Congressman promised to support
future public land exchange legislation favorable to each.
Renzi denies the charges against him, but argues on inter-
locutory appeal that he is protected by the Clause from even
the burden of defending himself. Specifically, he claims that
the public corruption charges against him amount to prosecu-
tion on account of his privileged “legislative acts”; that “legis-
lative act” evidence was improperly presented to the grand
jury; that the United States must show that its investigation
did not benefit from its review of “legislative act” evidence;
and that the district court erred by declining to wholly sup-
press all of the evidence against him relating to his illicit “ne-
gotiations.”
We cannot agree. We recognize, as we must, that the
Speech or Debate Clause is a privilege that “has enabled reck-
less men to slander and even destroy others with impunity.”
United States v. Brewster, 408 U.S. 501, 516 (1972). But the
Supreme Court has made equally clear that the Speech or
Debate Clause does not “make Members of Congress super-
citizens, immune from criminal responsibility.” Id. Because
we cling to “the precise words” of the Court’s own Speech or
1
“[A]nd for any Speech or Debate in either House, [the Senators and
Representatives] shall not be questioned in any other Place.” U.S. CONST.
art. I, § 6, cl. 1.
UNITED STATES v. RENZI 8513
Debate jurisprudence and “the sense of those cases, fairly
read,” id., we conclude that Renzi’s actions fall beyond the
Clause’s protections. We therefore deny Renzi the relief he
seeks.2
I
Renzi was elected to the United States House of Represen-
tatives in November 2002 as the representative for Arizona’s
First Congressional District.3 He was sworn in the following
January and, as a freshman congressman (“Member”),
obtained a seat on the House Natural Resources Committee
(“NRC”)—the committee responsible for, among other things,
approving of any land exchange legislation4 before it can
reach the floor of the House.
2
In a separate memorandum disposition filed concurrently with this
opinion, we also grant the Government’s cross-appeal, No. 10-10122, and
order reinstated the racketeering act dismissed by the district court.
3
Because this matter arises on interlocutory appeal, the facts are largely
derived from the allegations contained in the second superceding indict-
ment against Renzi. We accept these allegations as true only for the pur-
pose of resolving the important constitutional questions before us. United
States v. Fiander, 547 F.3d 1036, 1041 n.3 (9th Cir. 2008) (“We presume
the allegations of an indictment to be true for purposes of reviewing a dis-
trict court’s ruling on a motion to dismiss.” (internal quotation marks and
citation omitted)).
4
Federal land exchanges involve the exchange of privately held land for
federal land. Typically, land exchanges are facilitated by government
agencies and must comply with three general requirements: the federal
parcel and the private land must be appraised to ensure equal value, the
exchange must comply with the National Environmental Protection Act,
and the exchange must serve the public interest. E.g., Bill Paul, Article,
Statutory Land Exchanges that Reflect “Appropriate” Value and “Well
Serve” the Public Interest, 27 Pub. Land & Resources L. Rev. 107, 115-16
(2006). Legislative land exchanges are separate vehicles that avoid all of
these requirements. Id. at 122 (citing Robert B. Keiter, Biodiversity Con-
servation and the Intermixed Ownership Problem: From Nature Reserves
to Collaborative Processes, 38 Idaho L. Rev. 301, 316 (2002)).
8514 UNITED STATES v. RENZI
In 2004 and 2005, Resolution Copper Mining LLC
(“RCC”) owned the mineral rights to a large copper deposit
located near Superior, Arizona, an area east of Phoenix. RCC
was planning to extract the copper, but wanted first to secure
ownership of the surface rights from the United States Gov-
ernment. To obtain these rights, RCC hired Western Land
Group, a consulting firm, to assist it in acquiring private prop-
erty that it could offer to the Government in exchange for the
desired surface rights.
In 2005, Western Land Group approached Renzi about
developing and sponsoring the necessary land exchange legis-
lation. According to the allegations, Congressman Renzi met
with RCC representatives in his congressional office in Febru-
ary 2005 and instructed them to purchase property owned by
James Sandlin (“the Sandlin property”) if RCC desired
Renzi’s support. Renzi never disclosed to RCC that Sandlin
was a former business partner who, at that time, owed Renzi
some $700,000 plus accruing interest.
RCC’s negotiations with Sandlin were not fruitful. In
March 2005, an RCC representative called Renzi to tell him
that RCC had been unable to reach an agreement with Sandlin
because Sandlin was insisting on unreasonable terms. Renzi
reassured the representative that Sandlin would be more coop-
erative in the future. Later that day, RCC received a fax from
Sandlin stating, “I just received a phone call from Congress-
man Renzi’s office. They have the impression that I haven’t
been cooperating concerning this water issue. I feel I have
been very cooperative . . . . I still want to cooperate.” Never-
theless, no deal could be struck. In April, RCC informed
Renzi that it would not acquire the Sandlin property. Renzi
responded simply, “[N]o Sandlin property, no bill.”
Within the week following the collapse of “negotiations”
with RCC, Renzi began meeting with an investment group led
by Philip Aries (“Aries”), which desired the same surface
rights. According to the Government, Renzi again insisted
UNITED STATES v. RENZI 8515
that the Sandlin property be purchased and included as part of
any land exchange that took place. Again, he failed to disclose
his creditor relationship with Sandlin. Upping the ante, Renzi
told Aries that if the property was purchased and included, he
would ensure that the legislation received a “free pass”
through the NRC. Within a week, Aries agreed to purchase
the property for a sum of $4.6 million and wired a $1 million
deposit to Sandlin shortly thereafter.
Upon receiving that $1 million deposit, Sandlin wrote a
$200,000 check payable to Renzi Vino, Inc., an Arizona com-
pany owned by Renzi. Renzi deposited the check into a bank
account of Patriot Insurance—an insurance company he also
owned—and used $164,590.68 to pay an outstanding Patriot
Insurance debt. Later, when Aries appeared to grow nervous
about the deal prior to closing on the Sandlin property, Renzi
personally assured the group that he would introduce its land
exchange proposal once the sale was complete. The day Aries
closed, Sandlin paid into a Patriot Insurance account the
remaining $533,000 he owed Renzi.5 Ultimately, Renzi never
introduced any land exchange bill involving Aries and the
Sandlin property.
After an investigation,6 two separate grand juries returned
indictments against Renzi. On September 22, 2009, the sec-
ond grand jury returned a second superseding indictment
(“SSI”) against Renzi and some of his cohorts. That indict-
ment underlies the appeal we decide today and charges Renzi
with 48 criminal counts related to his land exchange “negotia-
5
This sum accounted for both the principal and the accrued interest.
6
During the course of the Government’s investigation, it interviewed
Congressman Renzi’s aides, reviewed documents provided by those aides,
wiretapped Congressman Renzi’s personal cell phone in accordance with
a Title III Order, and searched, pursuant to a warrant, the office of Patriot
Insurance. The evidence obtained from the wiretap was later suppressed
because of violations of Renzi’s attorney-client privilege. The Govern-
ment does not challenge that ruling.
8516 UNITED STATES v. RENZI
tions,” including public corruption charges of extortion, mail
fraud, wire fraud, money laundering, and conspiracy.7
Prior to this appeal, the district court issued three orders,
each adopting the Report and Recommendation of Magistrate
Judge Bernardo P. Velasco. First, the court denied Renzi’s
motion for a Kastigar-like hearing,8 after determining that the
Clause’s privilege “is one of use, not non-disclosure.” Sec-
ond, the district court denied Renzi’s motion to dismiss the
indictment in its entirety because it agreed that Renzi’s “nego-
tiations” with RCC and Aries did not fall within the Clause’s
protections and because the limited legislative act evidence
presented to the SSI grand jury did not warrant dismissal.
Finally, in its third order, the district court declined to sup-
press evidence related to Renzi’s “negotiations” with RCC
and Aries. We take special note of the fact that the district
court did not rule, as Renzi implies, that all such evidence
would be admissible. It simply concluded that blanket sup-
pression of all the Government’s evidence was inappropriate
and that it would address the propriety of each piece of evi-
dence “as the Government moves to introduce it” at trial.
Renzi timely filed this interlocutory appeal.
7
Counts 1 through 27 of the SSI charge Renzi and Sandlin with various
public corruption offenses related to the land exchange negotiations,
including Hobbs Act extortion, mail fraud, honest services wire fraud, and
money laundering. Counts 28 through 35 charge Renzi and another indi-
vidual with various insurance fraud offenses. Counts 36 through 46 charge
Renzi with additional insurance fraud offenses. Count 47 charges Renzi
with a RICO violation. Count 48 charges Renzi with a tax offense, and
Count 49 charges Sandlin with a campaign finance offense.
8
In Kastigar, the Court held that, when prosecuting an individual who
has been granted immunity in exchange for his or her testimony, the Gov-
ernment bears an affirmative burden of demonstrating that it has not used
that testimony, or any evidence derivative of that testimony, to further the
prosecution. Kastigar v. United States, 406 U.S. 441, 460-61 (1972).
UNITED STATES v. RENZI 8517
II
Because Renzi raises his claims on interlocutory appeal,
our jurisdiction—to the extent it exists—must be founded
upon the collateral order doctrine. Helstoski v. Meanor, 442
U.S. 500, 506-07 (1979); cf. 28 U.S.C. § 1291. As the
Supreme Court explained in Meanor, this doctrine affords us
jurisdiction to review a Member’s interlocutory claim that an
indictment against him should be dismissed as violative of the
Speech or Debate Clause. 442 U.S. at 507-08 (“[I]f a Member
‘is to avoid exposure to [being questioned for acts done in
either House] and thereby enjoy the full protection of the
Clause, his . . . challenge to the indictment must be review-
able before . . . exposure [to trial] occurs.’ ” (first alteration
added) (quoting Abney v. United States, 431 U.S. 651, 662
(1977))). We therefore address the first three of Renzi’s
claims to the extent each pertains to the viability of the indict-
ment itself. See United States v. Jefferson, 546 F.3d 300, 309
(4th Cir. 2008); United States v. McDade, 28 F.3d 283,
288-89 (3d Cir. 1994) (Alito, J.).
Renzi’s remaining claim—that the district court erred by
denying his motion to suppress—does not appear to fall under
that same jurisdictional grant, however. McDade, 28 F.3d at
301-02. In Meanor, the Court relied on its Double Jeopardy
jurisprudence, specifically Abney, to guide its inquiry into the
application of the collateral order doctrine to Speech or
Debate claims. Meanor, 442 U.S. at 506-08 (observing that its
“characterization [in Abney] of the purpose of the Double
Jeopardy Clause echoed th[e] Court’s statement in Dom-
browski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam), that
the Speech or Debate Clause was designed to protect Con-
gressmen ‘not only from the consequences of litigation’s
results but also from the burden of defending themselves’ ”
(internal citation amended to comport with modern citation
style)). In Abney, the Court explicitly distinguished challenges
to indictments—to which the collateral order doctrine applied
8518 UNITED STATES v. RENZI
—from challenges to district court rulings on motions to
suppress—to which it did not:
[T]he very nature of a double jeopardy claim is such
that it is collateral to, and separable from, the princi-
pal issue at the accused’s impending criminal trial,
i.e., whether or not the accused is guilty of the
offense charged. In arguing that the Double Jeopardy
Clause of the Fifth Amendment bars his prosecution,
the defendant makes no challenge whatsoever to the
merits of the charge against him. Nor does he seek
suppression of evidence which the Government plans
to use in obtaining a conviction. Rather, he is con-
testing the very authority of the Government to hale
him into court to face trial on the charge against
him.
Id. at 507 (first emphasis added) (quoting Abney, 431 U.S. at
659). As Abney guided the Court in Meanor, so it guides us
today. We lack jurisdiction under the collateral order doctrine
to consider Renzi’s suppression claim and thus dismiss that
part of his appeal.
III
Having disposed of one of Renzi’s four claims, we turn to
the merits of those that remain. To reiterate, Renzi argues first
that the district court erred by not dismissing the Govern-
ment’s public corruption charges against him because, as he
contends, those charges are based on his “legislative acts” or
his motivation for his “legislative acts” and would require the
introduction of “legislative act” evidence. Renzi also claims
that the district court erred by not dismissing the SSI in its
entirety because, as he contends, “legislative act” evidence
permeated the Government’s presentation to the grand jury.
Finally, Renzi asserts that the district court erred by refusing
to hold a Kastigar-like hearing to determine whether the Gov-
ernment used evidence protected by the Speech or Debate
UNITED STATES v. RENZI 8519
Clause to obtain non-privileged evidence and whether the
government can prove its case without allegedly tainted evi-
dence.
After careful consideration, we reject each of these claims.
A
We address first whether Renzi’s “negotiations” with RCC
and Aries are protected “legislative acts.”
If they are, we recognize that Renzi would obtain the bene-
fit of three distinct protections. First, the Government would
be barred by the Clause’s privilege against liability from pros-
ecuting Renzi for those acts, e.g., Gravel v. United States, 408
U.S. 606, 616 (1972), regardless of his motivation, United
States v. Johnson, 383 U.S. 169, 180 (1966) (“The claim of
an unworthy purpose does not destroy the privilege.” (internal
quotation marks and citation omitted)). Second, the Govern-
ment would be precluded from compelling Renzi, or his aides,
to “testify[ ] at trials or grand jury proceedings” about that
conduct. E.g., Gravel, 408 U.S. at 622 (explaining that neither
Member nor aide is immunized from testifying at trials or
grand jury proceedings if the testimony does not concern or
impugn a legislative act). And, third, evidence of those acts
could not be introduced to any jury, grand or petit. E.g.,
United States v. Helstoski, 442 U.S. 477, 489 (1979) (“The
Clause . . . ‘precludes any showing of how [a legislator] acted,
voted, or decided.’ ” (second alteration in original) (quoting
Brewster, 408 U.S. at 527)); id. at 490 (“Revealing informa-
tion as to a legislative act—speaking or debating—to a jury
would subject a Member to being ‘questioned’ in a place
other than the House or the Senate, thereby violating the
explicit prohibition of the Speech or Debate Clause.”); cf.
Gravel, 408 U.S. at 629 n.18.
However, if Renzi’s “negotiations” are not “legislative
acts,” then the Clause’s protections would not shield them.
8520 UNITED STATES v. RENZI
The Government could prosecute Renzi for his allegedly cor-
rupt conduct, and neither the testimonial nor evidentiary privi-
leges would apply. Brewster, 408 U.S. at 510, 525-27 (“[T]he
Court in Johnson emphasized that its decision did not affect
a prosecution that, though founded on a criminal statute of
general application, ‘does not draw in question the legislative
acts of the defendant member of Congress or his motives for
performing them.’ ” (quoting Johnson, 383 U.S. at 185)).
To resolve our inquiry, we first review Supreme Court pre-
cedent describing the character of a protected “legislative
act,” paying particular care to that conduct the Court consid-
ered beyond the reach of the Clause. We then apply that pre-
cedent to determine whether Renzi’s conduct falls within the
sweep of the Clause’s protection. We conclude that it does not
and therefore see no reason to bar Renzi’s prosecution for the
charges alleged.
1
Before wading too deeply into the merits of this claim, we
resolve a threshold issue: the standard of review by which to
assess Renzi’s claim. This is an issue of first impression in
this Circuit, but it is not a difficult one. Whether the Clause
precludes Renzi’s prosecution is a question of law, see United
States v. Ziskin, 360 F.3d 934, 942-43 (9th Cir. 2003) (“The
factor determining the standard of review is not whether the
facts are disputed nor whether the appeal is from a final judg-
ment; rather, it turns on whether the district court has
answered a legal question or made a factual determination.”),
and we already review de novo identical claims founded on
Double Jeopardy concerns, id. Like our sister circuits, we see
no reason to treat motions founded on the Speech or Debate
Clause any differently. Cf. Meanor, 442 U.S. at 506-08;
United States v. Swindall, 971 F.2d 1531, 1543 (11th Cir.
1992) (de novo); MINPECO S.A. v. Conticommodity Servs.,
Inc., 844 F.2d 856, 859 (D.C. Cir. 1988) (same). “We review
the district court’s denial of the motion to dismiss . . . de
UNITED STATES v. RENZI 8521
novo” and “accept the district court’s factual findings unless
they are clearly erroneous.” Ziskin, 360 F.3d at 942.
2
[1] Because the protections of the Clause apply absolutely
when they apply, the limits of what may constitute a protected
“legislative act” is of fundamental importance. Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975). In first
passing on the issue in Kilbourn v. Thompson, 103 U.S. 168,
204 (1880) (citing Coffin v. Coffin, 4 Mass. 1 (1808) (Parsons,
C.J.), with approval), the Court struck a delicate balance
between the interests of the three co-equal branches of Gov-
ernment when it declined to limit the Clause’s reach to
“words spoken in debate,” holding instead that the Clause
applies “to things generally done in a session of the House by
one of its members in relation to the business before it.” Id.
(emphasis added); accord Gravel, 408 U.S. at 617.
[2] Since Kilbourn, the Court has declined to alter that bal-
ance. See, e.g., Brewster, 408 U.S. at 512-14 (relying on Kil-
bourn and rejecting Congressman Brewster’s assertion that
the Court had “expressed a broader test for the coverage of
the Speech or Debate Clause” in Johnson, 383 U.S. 169). As
a result, a broad range of activities other than literal speech or
debate continue to fall within the contours of a “legislative
act”:
Prior cases have read the Speech or Debate Clause
‘broadly to effectuate its purposes,’ Johnson, 383
U.S. at 180, and have included within its reach any-
thing ‘generally done in a session of the House by
one of its members in relation to the business before
it.’ Kilbourn, 103 U.S. at 204; Johnson, 383 U.S. at
179. Thus, voting by Members and committee
reports are protected; and we recognize today—as
the Court has recognized before, Kilbourn, 103 U.S.
at 204; Tenney v. Brandhove, 341 U.S. 367, 377-78
8522 UNITED STATES v. RENZI
(1951)—that a Member’s conduct at legislative com-
mittee hearings, although subject to judicial review
in various circumstances, as is legislation itself, may
not be made the basis for a civil or criminal judg-
ment against a Member because that conduct is
within the ‘sphere of legitimate legislative activity.’
Tenney, 341 U.S. at 376.
Gravel, 408 U.S. at 624 (some citations amended to comport
with modern citation style); see also Eastland, 421 U.S. at
504 (conducting official congressional inquiries); Doe v.
McMillan, 412 U.S. 306, 312-13 (1973) (compiling commit-
tee reports); Brewster, 408 U.S. at 526 (“The question is
whether it is necessary to inquire into how appellee spoke,
how he debated, how he voted, or anything he did in the
chamber or in committee in order to make out a violation of
this statute.”).
[3] This broad sweep of protection is not without limits,
however. Reacting to an increasingly broad invocation of the
Clause, the Court clarified that it had never indicated that “ev-
erything that ‘related’ to the office of a Member was shielded
by the Clause.” Brewster, 408 U.S. at 513-14. Rather, the
Court explained that, “[i]n every case thus far before this
Court, the Speech or Debate Clause has been limited to an act
which was clearly a part of the legislative process—the due
functioning of the process,” id. at 515-16, and, as such, many
activities that a Member might be expected to perform would
not fall within the Clause’s protections:
It is well known, of course, that Members of the
Congress engage in many activities other than the
purely legislative activities protected by the Speech
or Debate Clause. These include a wide range of
legitimate ‘errands’ performed for constituents, the
making of appointments with Government agencies,
assistance in securing Government contracts, prepar-
ing so-called ‘news letters’ to constituents, news
UNITED STATES v. RENZI 8523
releases, and speeches delivered outside the Con-
gress. The range of these related activities has grown
over the years. They are performed in part because
they have come to be expected by constituents, and
because they are a means of developing continuing
support for future elections. Although these are
entirely legitimate activities, they are political in
nature rather than legislative, in the sense that term
has been used by the Court in prior cases. But it has
never been seriously contended that these political
matters, however appropriate, have the protection
afforded by the Speech or Debate Clause.
Id. at 512; McMillan, 412 U.S. at 313 (“Our cases make per-
fectly apparent, however, that everything a Member of Con-
gress may regularly do is not a legislative act within the
protection of the Speech or Debate Clause.”); see also East-
land, 421 U.S. at 504 (querying whether an activity was “ ‘an
integral part of the deliberative and communicative processes
by which Members participate in committee and House pro-
ceedings’ ” (quoting Gravel, 408 U.S. at 625)).
[4] In addition, the Court has recognized a marked distinc-
tion between completed “legislative acts” and mere promises
to perform future “legislative acts.” Helstoski, 442 U.S. at
489-490. Completed “legislative acts” are protected; promises
of future acts are not. Id. (“But it is clear from the language
of the Clause that protection extends only to an act that has
already been performed. A promise to deliver a speech, to
vote, or to solicit other votes at some future date is not
‘speech or debate.’ Likewise, a promise to introduce a bill is
not a legislative act.”); Brewster, 408 U.S. at 525-29 (permit-
ting the prosecution of Brewster for his promise to perform
specific future “legislative acts” in exchange for a bribe).
With this guiding framework in mind, we turn to the case
before us.
8524 UNITED STATES v. RENZI
3
The district court determined that Congressman Renzi’s
“negotiations” with RCC and Aries were not privileged
because Renzi had only promised to support future legislation
through future acts. It found the Supreme Court’s example in
Brewster particularly compelling and declined to deviate from
its result.
On appeal, Renzi argues that the district court drew too fine
a line between present and future conduct. He asserts that the
very act of “negotiating” with private entities over future leg-
islation is analogous to discourse between legislators over the
content of a bill and must be considered a protected “legisla-
tive act” under a broad construction of the Clause. He also
contends that his prosecution must be barred to avoid impugn-
ing later “legislative acts.” Finally, he argues that even if his
promise of future action would not be protected under
Supreme Court precedent, it would be protected under our
decision in Miller v. Transamerican Press, Inc., 709 F.2d 524,
530 (9th Cir. 1983) (“Obtaining information pertinent to
potential legislation or investigation is one of the ‘things gen-
erally done in the session of the House’ concerning matters
within the ‘legitimate legislative sphere.’ Constituents may
provide data to document their views when urging the Con-
gressman to initiate or support some legislative action.”
(internal citations omitted)).
[5] We disagree with each of Renzi’s contentions. In
Brewster, the Court rejected Renzi’s first argument—the con-
tention that a Member’s pre-legislative act negotiations with
private parties are themselves “legislative acts.” 408 U.S. at
516, 529. There, it considered whether the Clause precluded
the Government from prosecuting Congressman Daniel B.
Brewster for negotiating with and ultimately promising pri-
vate individuals that he would perform future legislative acts
in exchange for private gain—in that case, a cash bribe.9 Id.
9
Brewster was alleged to have “corruptly asked, solicited, sought,
accepted, received and agreed to receive money in return for being influ-
UNITED STATES v. RENZI 8525
at 502. Like Renzi, Brewster argued that his pre-legislative
“negotiations” were a regular and necessary part of the legis-
lative process that the Court should recognize as protected by
the Clause. See id. at 502, 516. The Court was unconvinced:
Appellee’s contention for a broader interpretation of
the privilege draws essentially on the flavor of the
rhetoric and the sweep of the language used by
courts, not on the precise words used in any prior
case, and surely not on the sense of those cases,
fairly read.
(c) We would not think it sound or wise, simply
out of an abundance of caution to doubly insure leg-
islative independence, to extend the privilege beyond
its intended scope, its literal language, and its his-
tory, to include all things in any way related to the
legislative process. Given such a sweeping reading,
we have no doubt that there are few activities in
which a legislator engages that he would be unable
somehow to ‘relate’ to the legislative process.
Admittedly, the Speech or Debate Clause must be
read broadly to effectuate its purpose of protecting
the independence of the Legislative Branch, but no
more than the statutes we apply, was its purpose to
make Members of Congress super-citizens, immune
from criminal responsibility.
Id. at 516 (emphasis added); see also id. at 526.
[6] The Court then focused on the specific nature of Brew-
ster’s “negotiations,” his solicitation and acceptance of a
enced in his performance of his official acts in respect to his action, vote,
and decision on postage rate legislation which might at any time be pend-
ing before him in his official capacity.” 408 U.S. at 502, 525 (internal quo-
tation marks omitted).
8526 UNITED STATES v. RENZI
bribe, to determine whether the Congressman’s specific con-
duct might fall within the Clause’s protections. Not surpris-
ingly, it found Brewster’s acts to be uniquely un-legislative
and squarely dismissed Brewster’s second argument, also ech-
oed by Renzi today, that the prosecution was simply a veiled
attempt to inquire as to the motivation for those later “legisla-
tive acts” actually performed:
Taking a bribe is, obviously, no part of the legisla-
tive process or function; it is not a legislative act. It
is not, by any conceivable interpretation, an act per-
formed as a part of or even incidental to the role of
a legislator. It is not an ‘act resulting from the nature,
and in the execution, of the office.’ Nor is it a ‘thing
said or done by him, as a representative, in the exer-
cise of the functions of that office,’ Coffin, 4 Mass.
at 27. Nor is inquiry into a legislative act or the moti-
vation for a legislative act necessary to a prosecution
under this statute or this indictment. When a bribe is
taken, it does not matter whether the promise for
which the bribe was given was for the performance
of a legislative act as here or, as in Johnson, for use
of a Congressman’s influence with the Executive
Branch. And an inquiry into the purpose of a bribe
‘does not draw in question the legislative acts of the
defendant member of Congress or his motives for
performing them.’ Johnson, 383 U.S. at 185.
Id. at 526 (citations amended to comport with modern citation
style).
One might think that this would be the end of the matter—
that Renzi would concede that Brewster forecloses his claim.
Instead, Renzi contends that his pre-legislative “negotiations”
are not doomed to the same fate as Brewster’s because he was
charged with extortion, not bribery. He reasons that Brewster
was premised on the idea that there was no legitimate expla-
nation for Brewster’s acceptance of a bribe, and that, unlike
UNITED STATES v. RENZI 8527
Brewster, he has a legitimate explanation for his deeds. In
short, Renzi relies on the fact that, as charged, his deceit was
more refined, more sophisticated, than Brewster’s. Rather
than selling his office for cash, he was wise enough to at least
attempt to conceal his crime by using more indirect means of
payment. We think Renzi relies on a distinction without a dif-
ference. See McDade, 28 F.3d at 296 n.16 (refusing to distin-
guish between bribery and extortion charges against a
Member and reasoning that Brewster applied to both).
[7] First, the Court has already considered and rejected the
contention that the Clause should be extended to preclude
inquiry into any legislative activity with some degree of facial
validity:
Mr. Justice WHITE suggests that permitting the
Executive to initiate the prosecution of a Member of
Congress for the specific crime of bribery is subject
to serious potential abuse that might endanger the
independence of the legislature—for example, a
campaign contribution might be twisted by a ruthless
prosecutor into a bribery indictment. But, as we have
just noted, the Executive is not alone in possessing
power potentially subject to abuse; such possibilities
are inherent in a system of government that delegates
to each of the three branches separate and indepen-
dent powers.
***
We therefore see no substantial increase in the power
of the Executive and Judicial Branches over the Leg-
islative Branch resulting from our holding today. If
we underestimate the potential for harassment, the
Congress, of course, is free to exempt its Members
from the ambit of federal bribery laws, but it has
deliberately allowed the instant statute to remain on
the books for over a century.
8528 UNITED STATES v. RENZI
Brewster, 408 U.S. at 521-22, 524; see also United States v.
Rostenkowski, 59 F.3d 1291, 1303 (D.C. Cir. 1995) (“[T]o the
extent that [Congressman] Rostenkowski himself chooses to
present evidence of his status or activities as a legislator, we
agree with the Second and Third Circuits that the constitu-
tional protection against his being ‘questioned’ for his legisla-
tive acts ‘does not prevent [a Member of Congress] from
offering such acts in his own defense, even though he thereby
subjects himself to cross-examination.’ ”); McDade, 28 F.3d
at 294-95.
In addition, Renzi fails to consider that the Court’s pointed
condemnation of Brewster’s specific crime, solicitation of a
bribe, came only after the Court had already expressed, in
general terms, its refusal to expand the Clause to protect the
type of private negotiations between Members and constitu-
ents at issue here:
The sweeping claims of appellee would render
Members of Congress virtually immune from a wide
range of crimes simply because the acts in question
were peripherally related to their holding office.
Such claims are inconsistent with the reading this
Court has given, not only to the Speech or Debate
Clause, but also to the other legislative privileges
embodied in Art. I, § 6.
Brewster, 408 U.S. at 520 (emphasis added); see also id. at
516; Johnson, 383 U.S. at 185 (permitting the Government to
re-prosecute a former Member for conspiring to defraud the
United States by accepting cash payments in exchange for,
among other things, delivering a speech on the floor of the
House, so long as that prosecution did not require evidence of
the completed legislative act—the speech).
[8] This point is evidenced not only by the Court’s words
in Brewster, but also by its example. Cf. 408 U.S. at 526. As
discussed, when the Clause applies, it applies absolutely.
UNITED STATES v. RENZI 8529
Eastland, 421 U.S. at 503. If the Clause protects particular
legislative activity, the fact that the activity was undertaken
for an illicit purpose is of no consequence; the Clause applies
in equal force to protect “legislative acts” regardless of a
Member’s alleged motivation. E.g., id. at 508-09 (“If the mere
allegation that a valid legislative act was undertaken for an
unworthy purpose would lift the protection of the Clause, then
the Clause simply would not provide the protection histori-
cally undergirding it.” (discussing Brewster)). Brewster did
not except itself from this foundational principle. Thus, the
fact that the Court permitted Brewster’s prosecution for his
alleged purpose in negotiating with private parties, solicitation
of a bribe, demonstrates that private negotiations between
Members and private parties are not protected “legislative
acts” in any case:
The question is whether it is necessary to inquire
into how appellee spoke, how he debated, how he
voted, or anything he did in the chamber or in com-
mittee in order to make out a violation of this statute.
The illegal conduct is taking or agreeing to take
money for a promise to act in a certain way. There
is no need for the Government to show that appellee
fulfilled the alleged illegal bargain; acceptance of the
bribe is the violation of the statute, not performance
of the illegal promise.
Brewster, 408 U.S. at 526 (emphasis added); Johnson, 383
U.S. at 185; see also Brewster, 408 U.S. at 528.
Having concluded that the Court’s precedent is of no aid to
Renzi’s cause, we move to his final argument—that our own
precedent has moved the bounds of Clause protection beyond
the line drawn by the Court in Brewster and Johnson to pro-
tect a Member’s pre-legislation investigation and fact-finding.
Cf. Miller, 709 F.2d at 530. The argument is a clever one. If
Renzi’s unprotected negotiations are sufficiently cloaked
under a broader category of protected legislative activity, i.e.,
8530 UNITED STATES v. RENZI
an investigation, then the Clause would fall like an iron cur-
tain to preclude prosecution for the otherwise unprotected
activity as well. See Helstoski, 442 U.S. at 489-90.
[9] The flaw in Renzi’s reasoning is small, but it makes all
the difference. Even assuming Miller appropriately applied
Supreme Court precedent when it concluded that unofficial
investigations by a single Member are protected from civil
discovery to the same extent as official investigations by Con-
gress as a body,10 Miller expressly limited its holding to cir-
cumstances in which no part of the investigation or fact-
finding itself constituted a crime.11 709 F.2d at 530 (“Only
one other court has directly confronted our situation, where a
civil litigant seeks information about a nonparty Congress-
man’s source of information and the source’s revelation of
the information did not constitute a crime.” (emphasis
added)). This careful caveat was no mere afterthought.
Rather, it reflects the Court’s own admonishments that the
Clause does not protect unlawful investigations by Members
—even if performed by Congress as a body:
[N]o prior case has held that Members of Congress
would be immune if they executed an invalid resolu-
tion by themselves carrying out an illegal arrest, or
if, in order to secure information for a hearing,
10
We think it significant that the Supreme Court has never recognized
investigations by an individual Member to be protected. See, e.g., Brew-
ster, 408 U.S. at 525-26; Johnson, 383 U.S. at 171-72, 185. It has held
only that when Congress, acting as a body, employs its constitutional
power to investigate, such official investigations are quintessential “legis-
lative acts.” Eastland, 421 U.S. at 503-04; McMillan, 412 U.S. at 312-13.
11
We are not alone in making this distinction. E.g., McSurely v. McClel-
lan, 553 F.2d 1277, 1288 (D.C. Cir. 1976) (en banc) (“The employment
of unlawful means to implement an otherwise proper legislative objective
is simply not ‘essential to legislating.’ As with taking a bribe, resort to
criminal or unconstitutional methods of investigative inquiry is ‘no part of
the legislative process or function; it is not a legislative act.’ ” (quoting
Brewster, 408 U.S. at 526)).
UNITED STATES v. RENZI 8531
themselves seized the property or invaded the pri-
vacy of a citizen. . . . Such acts are no more essential
to legislating than the conduct held unprotected in
United States v. Johnson . . . .
***
Article I, § 6, cl. 1, as we have emphasized, does not
purport to confer a general exemption upon Mem-
bers of Congress from liability or process in criminal
cases. Quite the contrary is true. While the Speech or
Debate Clause recognizes speech, voting, and other
legislative acts as exempt from liability that might
otherwise attach, it does not privilege either Senator
or aide to violate an otherwise valid criminal law in
preparing for or implementing legislative acts.
Gravel, 408 U.S. at 621-22, 626 (emphasis added); cf. East-
land, 421 U.S. at 508 (protected if “essential to legislating”).
Because Renzi is alleged to have done just that—“violate[d]
an otherwise valid criminal law in preparing for or imple-
menting [his] legislative acts,” id.—Miller cannot support his
claim.12
[10] Thus, we find ourselves, at base, with a claim no dif-
ferent than that raised by Brewster. Like the district court, we
see no reason to deviate from the example of the Court. Brew-
ster, 408 U.S. at 526, 528-29. The district court properly
12
Renzi asserts that this reasoning is improper because it equates to an
inquiry into his motivation—a proposition the Court, as described, has
refuted. Were the Court to have extended Clause protection to pre-
legislative investigations and fact-finding by individual Members, we
would agree. However, it has not. Supra note 10. Instead, the Court has
stated that illegal investigatory or preparatory acts are not protected “legis-
lative acts.” Gravel, 408 U.S. at 621-22; see also Brewster, 408 U.S. at
526; accord McSurely, 553 F.2d at 1288. To the extent these specific
edicts contradict more sweeping language, we adhere to them.
8532 UNITED STATES v. RENZI
denied Renzi’s motion to dismiss the public corruption
charges against him.
B
We next address whether the district court erred by declin-
ing to dismiss the indictment in its entirety for, as Renzi
alleges, the pervasive presentment of “legislative act” evi-
dence to the grand jury.
To resolve this issue, we first consider whether Renzi’s
allegation of Speech or Debate violations permits us to go
behind the face of the indictment to inquire as to the evidence
considered by the SSI grand jury. Compare Jefferson, 546
F.3d at 313-14 (concluding that a court need not look behind
the face of an indictment to see if Speech or Debate materials
were presented to a grand jury provided that none are pre-
sented at trial), with Swindall, 971 F.2d at 1546-50 (conclud-
ing that a court should look behind the face of an indictment),
Rostenkowski, 59 F.3d at 1300 (same), and United States v.
Helstoski (Helstoski II), 635 F.2d 200, 205 (3d Cir. 1980)
(same). We further consider whether any protected material
was disclosed to that grand jury and, if so, whether that mate-
rial “caused the jury to indict.” Swindall, 971 F.2d at 1546-50
(“[W]hen improper evidence is considered by a grand jury, a
Speech or Debate violation occurs only if the evidence causes
the jury to indict.”); see also Brewster, 408 U.S. at 511-12,
526-27; Johnson, 383 U.S. at 185. Because the indictment
against Renzi does not depend on “legislative act” evidence,
we hold that dismissal is not warranted.
1
Generally speaking, “an indictment valid on its face is not
subject to challenge on the ground that the grand jury acted
on the basis of inadequate or incompetent evidence.” United
States v. Calandra, 414 U.S. 338, 345 (1974) (citing Costello
v. United States, 350 U.S. 359, 363 (1956) (concluding that
UNITED STATES v. RENZI 8533
an indictment premised on hearsay was not subject to chal-
lenge under the Fifth Amendment “on the ground that there
was inadequate or incompetent evidence before the grand
jury”); Holt v. United States, 218 U.S. 245, 247-48 (1910)
(refusing to dismiss an indictment because “there was very lit-
tle evidence against the accused” besides “admissions . . .
obtained under circumstances that made them incompetent”)).
As the Court explained in Calandra, this is because a grand
jury’s use of inadequate or incompetent evidence “involve[s]
no independent governmental invasion of one’s person,
house, papers, or effects, but rather the usual abridgment of
personal privacy common to all grand jury questioning.” Id.
at 354 (discussing in the Fourth Amendment context). It thus
“presents a question, not of rights, but of remedies,” and the
Court has determined that the regular operation of generally
applicable rules of procedure and evidence at trial is the
appropriate remedy. Id. (refusing to extend the exclusionary
rule to the “context of a grand jury proceeding” because “the
damage to that institution from the unprecedented extension
of the exclusionary rule urged by respondent outweighs the
benefit of any possible incremental deterrent effect”). Because
that remedy bears no relation to a grand jury’s deliberations,
there is no cause to go behind the face of the indictment in
ordinary cases. Id. at 345-46.
[11] Renzi’s case is no ordinary one, however. Even in
Calandra, the Court noted that a grand jury cannot itself “vio-
late a valid privilege, whether established by the Constitution,
statutes, or the common law,” in order to effectuate its duties.
Id. at 346. Were it to do so, the jury’s actions would work a
new wrong, a new independent invasion, and thus present,
presumably, a question of both rights and remedies. See id. at
354; Kastigar v. United States, 406 U.S. 441, 443-45, 449
(1972) (immunity privilege); cf. Calandra, 414 U.S. at 346
(not describing a remedy for an independent violation by a
grand jury).
8534 UNITED STATES v. RENZI
[12] Because the Clause precludes any jury from “ques-
tion[ing]” a Member about his “legislative acts,” e.g., Hels-
toski, 442 U.S. at 489-90, Renzi’s claim implicates this latter
concern for an independent violation. If the SSI grand jury
“questioned” Renzi about his “legislative acts,” then it com-
mitted a new, independent violation of the privilege provided
by the Clause. Compare id., with Calandra, 414 U.S. at 346.
Still, assuming Renzi’s claim involves a question of a right,
the issue of the appropriate remedy remains. We must decide
whether Renzi’s claim, if proven, would permit him the relief
he seeks, dismissal of the indictment, which would provide us
with the predicate justification to go behind the face of the
SSI.
Despite the fact that “[t]he Court . . . has never held that a
speech or debate violation before the grand jury necessitates
the quashing of the indictment,” Helstoski II, 635 F.2d at 204,
the bulk of our sister circuits have held that it would. E.g.,
Swindall, 971 F.2d at 1544 (“Protection from criminal liabil-
ity includes protection from prosecution, not merely from
conviction.”); Helstoski II, 635 F.2d at 204 (reasoning that the
“purposes served by invoking the speech or debate clause
vary greatly from those that the Supreme Court has consid-
ered and rejected in other cases seeking to quash indict-
ments”). They have therefore found it necessary in cases like
Renzi’s to go behind the face of the indictment:
In order fully to secure th[e] purposes [of the Speech
or Debate Clause], it seems that a court may find it
necessary, at least under some circumstances, to look
beyond the face of an indictment and to examine the
evidence presented to the grand jury. Otherwise, a
prosecutor could with impunity procure an indict-
ment by inflaming the grand jury against a Member
upon the basis of his Speech or Debate, subject only
to the necessity of avoiding any reference to the
privileged material on the face of the indictment.
UNITED STATES v. RENZI 8535
Rostenkowski, 59 F.3d at 1298 (internal citation omitted);
Swindall, 971 F.2d at 1547; Helstoski II, 635 F.2d at 204-05.
But see Jefferson, 546 F.3d at 313 (“[W]hen an indictment is
facially valid and the grand jury was ‘legally constituted and
unbiased,’ the competency and adequacy of the evidence
presented to it is not subject to challenge.”).
[13] We agree. A court cannot permit an indictment that
depends on privileged material to stand—and burden a Mem-
ber with litigation that ultimately cannot succeed—or else the
Clause loses much of its teeth. Eastland, 421 U.S. at 503
(“[L]egislators acting within the sphere of legitimate legisla-
tive activity ‘should be protected not only from the conse-
quences of litigation’s results but also from the burden of
defending themselves.’ ” (quoting Dombrowski, 387 U.S. at
85)); Helstoski II, 635 F.2d at 205 (“A hostile executive
department may effectively neutralize a troublesome legisla-
tor, despite the absence of admissible evidence to convict,
simply by ignoring or threatening to ignore the privilege in a
presentation to a grand jury. Invocation of the constitutional
protection at a later stage cannot undo the damage. If it is to
serve its purpose, the shield must be raised at the begin-
ning.”). Moreover, in other analogous contexts, the Court has
ordered the dismissal of an indictment to remedy independent
violations by a grand jury. United States v. Hubbell, 530 U.S.
27, 45-46 (2000). We see no reason to treat differently new,
independent Speech or Debate violations by a grand jury. Cf.
id.
[14] Still, the mere fact that some “legislative act” evi-
dence was presented to the grand jury cannot entitle Renzi to
dismissal. That would contravene the Court’s example in
Brewster and Johnson—two cases in which the Court decided
that dismissal of the indictment was not warranted even
though each Member was indicted by grand juries to whom
the Government had presented “legislative act” evidence.
Johnson, 383 U.S. at 185 (“The Court of Appeals’ opinion
can be read as dismissing the conspiracy count in its entirety
8536 UNITED STATES v. RENZI
. . . . [W]e think the Government should not be precluded
from a new trial on this count . . . wholly purged of elements
offensive to the Speech or Debate Clause.”); see Brewster,
408 U.S. at 511-12, 526-27 (reversing the district court’s dis-
missal of the indictment even though “the indictment charges
the offense as being in part linked to Brewster’s ‘action, vote
and decision on postage rate legislation’ ”).
[15] The solution to this problem of words and deeds is the
middle ground upon which the Eleventh Circuit plants its flag
in Swindall: an indictment need not be dismissed unless the
“evidence [presented to the grand jury] causes the jury to
indict.” 971 F.2d at 1549 (“an essential element of proof”)
(citing Brewster, 408 U.S. at 511-12, 526-27, and Johnson,
383 U.S. at 185). As the court explained:
A member’s Speech or Debate privilege is violated
if the Speech or Debate material exposes the member
to liability, but a member is not necessarily exposed
to liability just because the grand jury considers
improper Speech or Debate material. “A member of
Congress may be prosecuted under a criminal statute
provided that the Government’s case does not rely
on legislative acts or the motivation for legislative
acts.” Brewster, 408 U.S. at 512. If reference to a
legislative act is irrelevant to the decision to indict,
the improper reference has not subjected the mem-
ber to criminal liability. The case can proceed to
trial with the improper references expunged.
Id. at 1548 (citation style amended and footnote omitted)
(emphasis added).
[16] We think Swindall represents an elegant solution to an
awkward problem—how to provide a remedy sufficiently
measured that it protects a Member’s privilege without trans-
forming the shield of the Clause into a sword that unscrupu-
lous Members might wield to avoid prosecution for even
UNITED STATES v. RENZI 8537
unprotected acts. We therefore adopt that standard and look
behind the face of the indictment to evaluate whether Clause
materials caused the grand jury to indict. Id.; see Johnson,
383 U.S. at 185; Helstoski II, 635 F.2d at 205 (dismissing the
entire indictment because of “wholesale violation of the
speech or debate clause before a grand jury”).
2
Before the district court, Renzi challenged the presentment
of specific excerpts of grand jury testimony by RCC and
Aries representatives, as well as the introduction of nineteen
documentary exhibits,13 on the general ground that they either
(1) “reference, describe and directly involve the development
of legislation,” (2) “discuss meetings about legislation,” or (3)
“involve the introduction of legislation.” After reviewing the
testimony and the exhibits, the district court found no fault in
the testimony but upheld Magistrate Judge Velasco’s order
striking nine exhibits for referencing protected acts.14 It then
applied the Swindall standard and, finding that the struck
exhibits did not cause the jury to indict, declined to dismiss
the indictment.
[17] On appeal, Renzi reiterates his complaints regarding
the testimony and the Government’s presentment of “numer-
ous documents” that “describe or reference Congressman
Renzi’s negotiations, discussions and correspondence with
RCC and Aries.” Looking first to the propriety of the testi-
mony, we find no error. As explained by Renzi, the represen-
tatives’ testimony concerned their meetings and negotiations
with Renzi, in which he insisted that they acquire the Sandlin
property if they desired his support. As previously discussed,
these negotiations are not “legislative acts.” Brewster, 408
13
Renzi challenged SSI Grand Jury Exhibits 7, 10, 13, 15-17, 28, 29,
36-39, 41, 43, 48, 49, 58, 91, and 95.
14
Magistrate Judge Velasco struck Exhibits 13, 15, 16, 29, 37, and 43
per Renzi’s request and sua sponte struck Exhibits 44, 45, and 60.
8538 UNITED STATES v. RENZI
U.S. at 526; Johnson, 383 U.S. at 185; cf. Miller, 709 F.2d at
530. The Clause thus did not bar their disclosure to the grand
jury.
Turning to the issue of the “numerous documents,” we
think it incumbent on Renzi to bring to our attention those
specific exhibits that cause him concern. Downs v. L.A. Uni-
fied Sch. Dist., 228 F.3d 1003, 1007 n.1 (9th Cir. 2000) (“[I]t
behooves parties to treat appellate panels not as if we were
pigs sniffing for truffles, but instead to fill our troughs to the
brim with the relevant, let alone necessary, information.”
(internal citation omitted)). We thus confine our focus to
those particular exhibits we were able to glean from his briefs.15
After paring away those never presented to the SSI grand jury,16
we are left with fifteen: the nine struck below, as well as
Exhibits 21, 33, 41, 58, 95, and 96. Because the Government
does not contest the court’s findings regarding the nine
already struck, we presume each violative and concern our-
selves with the other six—three of which appear to be “newly
offensive.”17
[18] Turning first to those documents the district court
found unprotected, we think the district court and Magistrate
Judge Velasco “drew the line precisely where it should have
been drawn.” Exhibit 41 describes Renzi’s demand to RCC
that it purchase the Sandlin property if it desired his future
15
One might logically assume that no “other” violative materials caused
the jury to indict if Renzi himself feels it unnecessary to bring them to our
—or the district court’s—attention.
16
Renzi did not contest the Government’s assertion that he complained
of documents in his briefs that were never presented to the SSI grand jury.
17
Exhibits 21, 33, and 96 are challenged with specificity for the first
time on appeal. Because we ultimately find each of these exhibits to be
irrelevant to the grand jury’s decision to indict, we do not engage in a pro-
tracted “plain error” analysis. Given the interests at issue, we simply
assume, without deciding, that were the Swindall test to be met, so too
would the substantial rights requirement of Federal Rule of Criminal Pro-
cedure 52.”
UNITED STATES v. RENZI 8539
support, including his statement, “no Sandlin property, no
bill.” That demand is not a “legislative act.” Helstoski, 442
U.S. at 490 (“[A] promise to introduce a bill is not a legisla-
tive act.”); Brewster, 408 U.S. at 525-26. Exhibit 58, an RCC
document describing RCC’s efforts to acquire the Sandlin
property, is no different. Neither is Exhibit 95, another RCC
document describing Renzi’s promise to request a hearing if
RCC performed certain specified acts. Helstoski, 442 U.S. at
490.
[19] The same cannot be said for the “newly offensive”
exhibits, however. Exhibit 21 is a map of property included
in the “Petrified Forest — San Pedro River Land Exchange
Act,” and Exhibits 33 and 96 are internal RCC emails that dis-
cuss, at least in some part, the status of actual legislation. To
the extent each references actual “legislative acts,” it should
not have been presented to the grand jury. Id. (“As to what
restrictions the Clause places on the admission of evidence,
our concern is not with the ‘specificity’ of the reference.
Instead, our concern is whether there is mention of a legisla-
tive act.”).18
Of course, identifying the violative exhibits only puts the
ball on the tee. We must still decide the dispositive question:
whether the twelve documents19 the Government impermiss-
ibly presented to the SSI grand jury caused the grand jury to
indict. Comparing those documents to the charges against
Renzi—e.g., conspiracy to commit extortion and wire fraud,
honest services wire fraud, conspiracy to commit money laun-
18
Though the documents should not have been presented to the grand
jury in their current form, we note that the Clause would not bar their
introduction at trial if properly redacted. Helstoski, 442 U.S. at 489 n.7
(“Nothing in our opinion, by any conceivable reading, prohibits excising
references to legislative acts, so that the remainder of the evidence would
be admissible. This is a familiar process in the admission of documentary
evidence.”).
19
We must consider the three exhibits discussed herein and the nine
documents previously struck.
8540 UNITED STATES v. RENZI
dering, and Hobbs Act extortion under color of official right
—we see no basis for such a conclusion.
The charges against Renzi concern, as the Government
alleges, his act to offer RCC, and later Aries, a quid pro quo
deal: Sandlin property for future legislation—nothing more,
nothing less. To prove these charges, the Government need
only introduce evidence of Renzi’s promise to support legisla-
tion and the circumstances surrounding that promise—the
“meetings” and “negotiations” with RCC and Aries in which
he pitched his offer. Brewster, 408 U.S. at 526 (“To make a
prima facie case under this indictment, the Government need
not show any act of appellee subsequent to the corrupt prom-
ise for payment, for it is taking the bribe, not performance of
the illicit compact, that is a criminal act.”).
[20] The now-struck evidence—all of which concerned
“the legislative performance itself”—is superfluous to these
showings because the indictment could have been returned
even absent these exhibits. Id. at 525-27 (“An examination of
the indictment brought against appellee and the statutes on
which it is founded reveals that no inquiry into legislative acts
or motivation for legislative acts is necessary for the Govern-
ment to make out a prima facie case.” (emphasis added)).
Thus, while these exhibits should not have been presented, we
cannot conclude that they were “essential elements of proof”
that caused the jury to indict. Swindall, 971 F.2d at 1548; see
also Brewster, 408 U.S. at 526-27; Johnson, 383 U.S. at 185.
We therefore have no cause to grant Renzi the relief he seeks.20
20
We reject Renzi’s claim that this renders the Clause a right without a
remedy. The Court dismissed a similar vindication argument in Calandra:
It should be noted that, even absent the exclusionary rule, a
grand jury witness may have other remedies to redress the injury
to his privacy and to prevent a further invasion in the future. He
may be entitled to maintain a cause of action for damages against
the officers who conducted the unlawful search. Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
UNITED STATES v. RENZI 8541
We affirm the district court’s refusal to grant his dismissal
motion.
C
Finally, we consider Renzi’s claim that the district court
erred by refusing to hold a Kastigar-like hearing to determine
whether the Government used evidence protected by the
Speech or Debate Clause to obtain non-privileged evidence
and whether the Government can prove its case with evidence
derived from legitimate independent sources.
What Renzi asks is no small request. Rather, to do as he
suggests would require us to agree that there exists some
grandiose, yet apparently shy, privilege of non-disclosure that
the Supreme Court has not thought fit to recognize. It would
require us to ignore the care with which the Court has
described the bounds of the Clause and to agree that legisla-
tive convenience precludes the Government from reviewing
documentary evidence referencing “legislative acts” even as
part of an investigation into unprotected activity. See United
States v. Rayburn House Office Bldg., 497 F.3d 654, 655-56,
666 (D.C. Cir. 2007). Moreover, it would require us to con-
clude that this privilege of non-disclosure precludes even the
use of derivative evidence.21 Because we do not think it wise
388 (1971). He may also seek return of the illegally seized prop-
erty, and exclusion of the property and its fruits from being used
as evidence against him in a criminal trial. Go-Bart Importing
Co. v. United States, 282 U.S. 344 (1931). In these circum-
stances, we cannot say that such a witness is necessarily left rem-
ediless in the face of an unlawful search and seizure.
414 U.S. at 354 n.10 (citations amended to comport with modern citation
style).
21
Renzi seems to assume that the Government would be required to
prove that the indictment was not obtained through the use of derivative
evidence were we to adopt the Rayburn formulation. We do not agree.
8542 UNITED STATES v. RENZI
to expand the Clause “beyond its intended scope, its literal
language, and its history” to “make Members of Congress
super-citizens,” Brewster, 408 U.S. at 516, we decline Renzi’s
request.22
Renzi’s claim has its genesis—as it must—in the only case
that has ever held that the Clause goes so far as to preclude
the Executive from obtaining and reviewing “legislative act”
evidence: the decision of the D.C. Circuit Court of Appeals in
Rayburn. 497 F.3d at 659-60 (“Although in Gravel the Court
held that the Clause embraces a testimonial privilege, [408
U.S.] at 616, to date the Court has not spoken on whether the
privilege conferred by the Clause includes a non-disclosure
privilege. However, this court has.”). Rayburn itself con-
cerned a novel problem: the first execution of a search war-
rant on the congressional office of a sitting Member of
Invoking the term “Kastigar-like hearing” does not serve to suspend the
general rule that facially valid indictments are not subject to challenge.
Calandra, 414 U.S. at 345. Rather, Kastigar hearings occur only because
the immunity privilege implicated therein itself precludes derivative use.
Kastigar, 406 U.S. at 453 (“We hold that such immunity from use and
derivative use is coextensive with the scope of the privilege against self-
incrimination, and therefore is sufficient to compel testimony over a claim
of the privilege.” (emphasis added)).
Even the Rayburn privilege does not go that far. 497 F.3d at 664-67
(“Although the search of Congressman Jefferson’s paper files violated the
Speech or Debate Clause, his argument does not support granting the relief
that he seeks, namely the return of all seized documents, including copies,
whether privileged or not.”); see Rostenkowski, 59 F.3d at 1300 (rejecting
the suggestion that Kastigar-like hearings are appropriate in the Speech or
Debate context). As a result, even under Rayburn, Renzi would need to
rely on the exclusionary rule to preclude a jury’s consideration of “fruit”
evidence, and, as discussed, that rule has no place in the grand jury con-
text. Calandra, 414 U.S. at 354-55.
22
Renzi argued to the district court that this same privilege also required
the disqualification of the prosecution team based on its exposure to pro-
tected material. Cf. Rayburn, 497 F.3d at 666. In light of our disposition
here, we think that argument was properly rejected.
UNITED STATES v. RENZI 8543
Congress.23 Not surprisingly, Representative William J. Jef-
ferson, the target of the search, eschewed his new position in
the footnotes of history and brought a motion pursuant to Rule
41(g) of the Federal Rules of Criminal Procedure24 seeking
the return of all materials seized by the Executive.
The district court denied Jefferson’s motion but a panel of
the D.C. Circuit Court of Appeals reversed. Rayburn, 497
F.3d at 656-57. Two of the three members of that panel rea-
soned that circuit precedent had already established that the
testimonial privilege of the Clause precluded civil discovery
of documentary “legislative act” evidence and saw no reason
not to extend that rationale to the context of a criminal inves-
tigation. Id. at 660 (“[O]ur opinion in Brown & Williamson
makes clear that a key purpose of the privilege is to prevent
intrusions in the legislative process and that the legislative
process is disrupted by the disclosure of legislative material,
regardless of the use to which the disclosed materials are put.”
(citing Brown & Williamson Tobacco Corp. v. Williams, 62
F.3d 408, 419 (D.C. Cir. 1995))). But see Brown, 62 F.3d at
419-20 (“Gravel’s sensitivities to the existence of criminal
proceedings against persons other than Members of Congress
at least suggest that the testimonial privilege might be less
stringently applied when inconsistent with a sovereign inter-
23
As noted by Judge Karen Henderson, “this unique moment in our
nation’s history [wa]s largely of the Representative’s own making.” Ray-
burn, 497 F.3d at 668 n.7 (Henderson, J., concurring). Though it had
“probable cause to believe that Congressman Jefferson, acting with other
targets of the investigation, had sought and in some cases already accepted
financial backing and or concealed payments of cash or equity interests in
business ventures located in the United States, Nigeria, and Ghana in
exchange for his undertaking official acts as a Congressman while promot-
ing the business interests of himself and the targets,” id. at 656, the Gov-
ernment first sought for months to obtain Representative Jefferson’s
cooperation in their investigation, id. at 668 n.7 (Henderson, J., concur-
ring). Only after its efforts were rebuffed did the Government obtain the
warrant. Id.
24
“A person aggrieved by an unlawful search and seizure of property or
by the deprivation of property may move for the property’s return.”
8544 UNITED STATES v. RENZI
est, but is ‘absolute in all other contexts.”). The majority con-
cluded “that a search that allows agents of the Executive to
review privileged materials without the Member’s consent
violates the Clause” because it serves to distract Members
and their staffs from their legislative work. Rayburn, 497 F.3d
at 660, 663. It ordered the return of all privileged materials to
Congressman Jefferson, but declined to order the return of
non-privileged materials as well. Id. at 665 (“[A]bsent any
claim of disruption of the congressional office by reason of
lack of original versions, it is unnecessary to order the return
of non-privileged materials as a further remedy for the viola-
tion of the Clause.”).25
[21] Responding to the critique of their concurring col-
league, the court dismissed the contention that its construction
of the Clause effectively eviscerated the ability of the Execu-
tive to investigate Members of Congress. Compare id. at 661,
with id. at 671-72 (Henderson, J., concurring) (“[A]s the gov-
ernment points out, to conclude that the Clause’s shield pro-
tects against any Executive Branch exposure to records of
legislative acts would jeopardize law enforcement tools ‘that
have never been considered problematic.’ If Executive Branch
exposure alone violated the privilege, ‘agents . . . could not
conduct a voluntary interview with a congressional staffer
who wished to report criminal conduct by a Member or
staffer, because of the possibility . . . that the staffer would
discuss legislative acts in . . . describing the unprivileged,
criminal conduct.’ ” (internal citations omitted) (alterations in
original)). Rather, the majority concluded that nothing barred
the Executive from seeking judicial review of a Member’s
claim that particular documents were privileged from disclo-
sure by the Clause. Id. at 662. Specifically, the court refer-
enced with approval its prior order that the district court
review all of the seized materials and make findings as to
25
The court also declined to consider “whether the seized evidence must
be suppressed under the Fourth Amendment.” Rayburn, 497 F.3d at 655.
UNITED STATES v. RENZI 8545
which documents referenced privileged activity. Compare id.
at 661-62, with id. at 657-58.
Simply stated, we cannot agree with our esteemed col-
leagues on the D.C. Circuit. We disagree with both Rayburn’s
premise and its effect and thus decline to adopt its rationale.
Rayburn rests on the notion that “distraction” of Members
and their staffs from their legislative tasks is a principal con-
cern of the Clause, and that distraction alone can therefore
serve as a touchstone for application of the Clause’s testimo-
nial privilege. 497 F.3d at 660 (reasoning that “the touchstone
[of the Clause] is interference with legislative activities”
(quoting Brown, 62 F.3d at 418, 421 (decided in the context
of civil discovery))). This formulation of the Clause is spe-
cific to the D.C. Circuit, id. at 659-60, and was first derived
by that court in MINPECO, a case concerning civil discovery,
844 F.2d at 859. There, the court relied on a fragment of a sin-
gle passage of Eastland to support its conclusion that the
Clause precludes not only civil actions, but also civil discov-
ery of documentary “legislative act” evidence, because both
could be equally distracting:
One of [the Clause’s] purposes is to shield legislators
from private civil actions that “create[ ] a distraction
and force[ ] Members to divert their time, energy,
and attention from their legislative tasks to defend
the litigation.” Eastland, 421 U.S. at 503. A litigant
does not have to name members or their staffs as
parties to a suit in order to distract them from their
legislative work. Discovery procedures can prove
just as intrusive.
MINPECO, 844 F.2d at 859 (internal citation amended to
comport with modern citation style) (first alteration added).
We do not interpret Eastland so broadly.26
26
We also think MINPECO’s reliance on Miller is misplaced. 844 F.2d
at 860. Miller dealt with a civil litigant’s attempt to compel former Con-
8546 UNITED STATES v. RENZI
To be clear, we have no quarrel with MINPECO’s observa-
tion that a civil action cannot be maintained against a member
of Congress once it is determined that the action is based on
a Member’s “legislative act.” Id. That was the primary point
of Eastland; that the Clause’s privilege against liability27
applies in equal measure to preclude both criminal and civil
actions against a Member and his staff that are premised on
“legislative acts.” 421 U.S. at 503, 512-13. Where we differ
with MINPECO is in our belief that legislative distraction is
not the primary ill the Clause seeks to cure. Rather, we think
the entirety of the passage of Eastland on which MINPECO
relies demonstrates that concern for distraction alone pre-
cludes inquiry only when the underlying action is itself pre-
cluded:
Thus we have long held that, when it applies, the
Clause provides protection against civil as well as
criminal actions, and against actions brought by pri-
vate individuals as well as those initiated by the
Executive Branch.
The applicability of the Clause to private civil
actions is supported by the absoluteness of the term
‘shall not be questioned,’ and the sweep of the term
‘in any other Place.’ In reading the Clause broadly
we have said that legislators acting within the sphere
of legitimate legislative activity ‘should be protected
gressman Sam Steiger to testify about acts we considered protected by the
Clause. 709 F.2d at 526, 531. We affirmed the district court’s denial of the
litigant’s motion to compel, id. at 532, because the Clause unequivocally
precludes compelling Members to testify about their “legislative acts.”
E.g., Gravel, 408 U.S. at 622. We went no further.
27
To reiterate, the Court has identified three distinct privileges in the
Clause: a testimonial privilege, an evidentiary privilege, and a privilege
against liability. MINPECO relied on the testimonial privilege of the
Clause. 844 F.2d at 859. Eastland dealt with the Clause’s privilege against
liability. 421 U.S. at 503.
UNITED STATES v. RENZI 8547
not only from the consequences of litigation’s results
but also from the burden of defending themselves.’
Dombrowski, 387 U.S. at 85. Just as a criminal pros-
ecution infringes upon the independence which the
Clause is designed to preserve, a private civil action,
whether for an injunction or damages, creates a dis-
traction and forces Members to divert their time,
energy, and attention from their legislative tasks to
defend the litigation. Private civil actions also may
be used to delay and disrupt the legislative function.
Moreover, whether a criminal action is instituted by
the Executive Branch, or a civil action is brought by
private parties, judicial power is still brought to bear
on Members of Congress and legislative indepen-
dence is imperiled.
Id. at 503 (emphasis added); Dombrowski, 387 U.S. at 85
(upholding “summary dismissal of the action [against the
Member] on the ground that ‘the record before the District
Court contained unchallenged facts of a nature and scope suf-
ficient to give [him] an immunity against answerability in
damages’ ” (emphasis added)).
Anchoring distraction to a precluded action not only satis-
fies the flair of the language used by the Court in Eastland,
but also the precise words used in prior cases and “the sense
of those cases, fairly read.” Cf. Brewster, 408 U.S. at 516
(counseling against relying on “rhetoric and the sweep of the
language used by courts”). In Gravel, for example, the Court
explained that neither Senator Gravel nor his aide could be
questioned about their “legislative acts” because the Clause
precluded the very action against them. 408 U.S. at 629 n.18.
The Court went on to explain, though, that the Clause would
not apply with the same tenacity were the underlying action
not barred:
Having established that neither the Senator nor
Rodberg is subject to liability for what occurred at
8548 UNITED STATES v. RENZI
the subcommittee hearing, we perceive no basis for
inquiry of either Rodberg or third parties on this sub-
ject. . . . We do not intend to imply, however, that in
no grand jury investigations or criminal trials of third
parties may third-party witnesses be interrogated
about legislative acts of Members of Congress. As
for inquiry of Rodberg about third-party crimes, we
are quite sure that the District Court has ample
power to keep the grand jury proceedings within
proper bounds and to foreclose improvident harass-
ment and fishing expeditions into the affairs of a
Member of Congress that are no proper concern of
the grand jury or the Executive Branch.
Id. If distraction alone serves as the touchstone for the abso-
lute protection of the Clause, the distinction drawn by the
Court would be quite arbitrary. The quoted passage makes
perfect sense, though, if one accepts that an underlying action
must be precluded before concern for distraction alone is suf-
ficient to foreclose inquiry.
Anchoring the two concerns also makes practical sense.
When the Clause bars the underlying action, any investigation
and litigation serve only as wasted exercises that unnecessar-
ily distract Members from their legislative tasks. Eastland,
421 U.S. at 503, 512-13; cf. Helstoski, 442 U.S. at 480-81,
488 n.7; Gravel, 408 U.S. at 629 n.18; Johnson, 383 U.S. at
173-77. They work only as tools by which the Executive and
Judiciary might harass their Legislative brother.
When the underlying action is not precluded by the Clause,
however, the calculus is much different. E.g., Gravel, 408
U.S. at 629 n.18; see Brewster, 408 U.S. at 524-25. In that cir-
cumstance, the Court has demonstrated that other legitimate
interests exist, most notably the ability of the Executive to
adequately investigate and prosecute corrupt legislators for
non-protected activity. Helstoski, 442 U.S. at 488 n.7; Brew-
ster, 408 U.S. at 524-25. As explained by the Court, this inter-
UNITED STATES v. RENZI 8549
est is of paramount importance to the Legislative branch
itself:
As we noted at the outset, the purpose of the Speech
or Debate Clause is to protect the individual legisla-
tor, not simply for his own sake, but to preserve the
independence and thereby the integrity of the legisla-
tive process. But financial abuses by way of bribes,
perhaps even more than Executive power, would
gravely undermine legislative integrity and defeat
the right of the public to honest representation.
Depriving the Executive of the power to investigate
and prosecute and the Judiciary of the power to pun-
ish bribery of Members of Congress is unlikely to
enhance legislative independence. Given the disin-
clination and limitations of each House to police
these matters, it is understandable that both Houses
deliberately delegated this function to the courts, as
they did with the power to punish persons commit-
ting contempts of Congress.
Brewster, 408 U.S. at 524-25 (emphasis added) (citation omit-
ted). Were we to join the D.C. Circuit in precluding review of
any documentary “legislative act” evidence, even as part of an
investigation into unprotected activity, for fear of distracting
Members, we would thus only harm legislative independence.
Id.
Moreover, in resolving any lingering uncertainty as to
whether distraction alone can preclude disclosure of docu-
mentary “legislative act” evidence, we cannot ignore the
example of the Court. The Court’s own jurisprudence demon-
strates that Members have been distracted by investigations
and litigation—and have even been compelled to disclose
documentary “legislative act” evidence—in cases in which
the underlying action was not precluded by the Clause. E.g.,
Helstoski, 442 U.S. at 480-81, 488 n.7; Johnson, 383 U.S. at
173-77 (describing the Government’s investigation into actual
8550 UNITED STATES v. RENZI
legislation and other clear legislative acts); see Gravel, 408
U.S. at 629 n.18. Helstoski is particularly insightful. There,
the Court described how Congressman Helstoski was com-
pelled to turn over “files on numerous private bills” and “cor-
respondence with a former legislative aide and with
individuals for whom bills were introduced.” 442 U.S. at 481.
Nevertheless, the Court never said a word about the com-
pelled disclosure or the Government’s review of that evi-
dence. Id. at 488-90. Rather, the Court made clear that the
Executive could use that documentary evidence against Hels-
toski at trial so long as it was appropriately redacted:
Mr. Justice STEVENS suggests that our holding is
broader than the Speech or Debate Clause requires.
In his view, “it is illogical to adopt rules of evidence
that will allow a Member of Congress effectively to
immunize himself from conviction simply by insert-
ing references to past legislative acts in all communi-
cations, thus rendering all such evidence
inadmissible.” Post, at 2444. Nothing in our opinion,
by any conceivable reading, prohibits excising refer-
ences to legislative acts, so that the remainder of the
evidence would be admissible. This is a familiar pro-
cess in the admission of documentary evidence. Of
course, a Member can use the Speech or Debate
Clause as a shield against prosecution by the Execu-
tive Branch, but only for utterances within the scope
of legislative acts as defined in our holdings. That is
the clear purpose of the Clause.
Id. at 488 n.7. Because the Executive would be hard pressed
to redact a document it was constitutionally precluded from
obtaining or reviewing, we see no tenable explanation for this
caveat except that the Clause does not blindly preclude disclo-
sure and review by the Executive of documentary “legislative
act” evidence. Concern for distraction alone cannot bar dis-
UNITED STATES v. RENZI 8551
closure and review when it takes place as part of an investiga-
tion into otherwise unprotected activity.28
Having discussed our disagreement with Rayburn’s prem-
ise, we further explain why we are ill at ease with its effect.
For one, it stands in direct contradiction to the Court’s direc-
tive and example in Helstoski. 442 U.S. at 481-82, 488-90.
Furthermore, we must bear in mind the Speech or Debate
Clause is a creature born of separation of powers concerns.
E.g., Johnson, 383 U.S. at 178-79,29 181-82. As a result, it
28
Of course, it is entirely true that sometimes the very disclosure of doc-
umentary evidence in response to a subpoena duces tecum may have some
testimonial import. Rayburn, 497 F.3d at 669 (Henderson, J., concurring).
This was the point raised by Judge Henderson in her concurrence. Id. She
noted, however, that service of a warrant does not require a property
owner “to respond either orally or by physically producing the property,
including records.” Id.; see Andresen v. Maryland, 427 U.S. 463, 473
(1976) (“ ‘A party is privileged from producing the evidence but not from
its production.’ ” (quoting Johnson v. United States, 228 U.S. 457, 458
(1913) (Holmes, J.))). As a result, it “falls far short of the ‘question[ing]’ ”
required to trigger the Clause. Rayburn, 497 F.3d at 669.
29
As Justice Harlan explained in Johnson:
In the American governmental structure the clause serves the
additional function of reinforcing the separation of powers so
deliberately established by the Founders. As Madison noted in
Federalist No. 48:
‘It is agreed on all sides, that the powers properly belonging
to one of the departments, ought not to be directly and com-
ple[te]ly administered by either of the other departments. It
is equally evident, that neither of them ought to possess
directly or indirectly, an overruling influence over the others
in the administration of their respective powers. It will not be
denied, that power is of an encroaching nature, and that it
ought to be effectually restrained from passing the limits
assigned to it. After discriminating therefore in theory, the
several classes of power, as they may in their nature be legis-
lative, executive, or judiciary; the next and most difficult
task, is to provide some practical security for each against
the invasion of the others. What this security ought to be, is
the great problem to be solved.’ (Cooke ed.)
8552 UNITED STATES v. RENZI
applies in equal scope and with equal strength to both the
Executive and the Judiciary:
It was not only fear of the executive that caused con-
cern in Parliament but of the judiciary as well, for
the judges were often lackeys of the Stuart mon-
archs, levying punishment more ‘to the wishes of the
crown than to the gravity of the offence.’ There is lit-
tle doubt that the instigation of criminal charges
against critical or disfavored legislators by the exec-
utive in a judicial forum was the chief fear prompt-
ing the long struggle for parliamentary privilege in
England and, in the context of the American system
of separation of powers, is the predominate thrust of
the Speech or Debate Clause.
Id. at 181-82 (emphasis added); id. at 178-79.
Despite acknowledging that fact, 497 F.3d at 660, the Ray-
burn court treated the two branches in a remarkably different
fashion—concluding that “any Executive Branch exposure to
records of legislative acts” was prohibited by the Clause, id.
at 671 (Henderson, J., concurring), while noting that the Judi-
ciary could review evidence claimed to be privileged, id. at
658, 661. Given the Clause’s rationale, such a distinction can-
not exist. If the Clause applies, it applies absolutely—there is
no balancing of interests nor any lessening of the protection
afforded depending on the branch that perpetrates the intru-
sion. Eastland, 421 U.S. at 509-10 (“Finally, respondents
argue that the purpose of the subpoena was to ‘harass, chill,
punish and deter’ them in the exercise of their First Amend-
The legislative privilege, protecting against possible prosecution
by an unfriendly executive and conviction by a hostile judiciary,
is one manifestation of the ‘practical security’ for ensuring the
independence of the legislature.
383 U.S. at 178-79 (emphasis added).
UNITED STATES v. RENZI 8553
ment rights, App. 16, and thus that the subpoena cannot be
protected by the Clause . . . . That approach, however, ignores
the absolute nature of the speech or debate protection and our
cases which have broadly construed that protection.” (empha-
sis added) (footnote omitted); id. at 509 n.16 (“Where we are
presented with an attempt to interfere with an ongoing activity
by Congress, and that activity is found to be within the legiti-
mate legislative sphere, balancing plays no part. The speech
or debate protection provides an absolute immunity from judi-
cial interference.” (emphasis added)). If disclosure to the
Executive violates the privilege, then disclosure to the Judi-
ciary does no different; the Clause does not distinguish
between judge, jury, and prosecutor. E.g., Johnson, 383 U.S.
at 178-79, 181-82.
As such, the example of the Court again demonstrates that
the Clause cannot incorporate the privilege Rayburn contends.
Many times, the Court has itself reviewed evidence to ascer-
tain whether it was protected or not. E.g., Helstoski, 442 U.S.
at 487-90; Johnson, 383 U.S. at 185-86; cf. Gravel, 408 U.S.
at 627-29. Were the Clause truly to incorporate a non-
disclosure privilege, each of these disclosures would serve as
an independent violation of the Clause. We decline to adopt
a rationale that would require such a conclusion.
[22] In sum, the very fact that the Court has reviewed “leg-
islative act” evidence on countless occasions—and considered
cases in which such evidence had been disclosed to the Exec-
utive with nary an eyebrow raised as to the disclosure—
demonstrates that the Clause does not incorporate a non-
disclosure privilege as to any branch. See, e.g., Helstoski, 442
U.S. at 480-81, 487-90; Johnson, 383 U.S. at 173-77, 185-86.
Quite simply, the Court has not left unrecognized a privilege
far broader than those narrowly drawn limits it has taken care
to articulate. We decline to adopt the D.C. Circuit’s Rayburn
formulation and thus see no cause for a Kastigar-like hearing.
We again affirm the district court.
8554 UNITED STATES v. RENZI
IV
In its narrowest scope, the Clause is a very large, albeit
essential, grant of privilege” that “has enabled reckless men
to slander and even destroy others with impunity . . . .” Brew-
ster, 408 U.S. at 516. Nevertheless, it has its limits. McMillan,
412 U.S. at 313 (“Our cases make perfectly apparent, how-
ever, that everything a Member of Congress may regularly do
is not a legislative act within the protection of the Speech or
Debate Clause.”). Despite Renzi’s best efforts to convince us
otherwise, we agree with the district court that the alleged
choices and actions for which he is being prosecuted lie
beyond those limits. We affirm the district court’s denial of
relief on each of the issues properly raised on appeal.
AFFIRMED in part; DISMISSED in part.