Prosecutors, defense lawyers and the courts have argued for years over how far the protections extend and whether a violation taints a whole pool of evidence.
The heightened concern over whether federal investigators have overstepped their authority began after the FBI searched Rep. William Jefferson’s Capitol Hill office in a bribery investigation in May 2006. Mr. Jefferson’s trial on charges that he solicited bribes began Tuesday in a federal courtroom in suburban Washington.
In 2006, House Speaker Dennis J. Hastert, Illinois Republican, and Mrs. Pelosi, then the minority leader, asked House attorneys to seek to exclude evidence FBI agents had gathered during what many lawmakers called an unprecedented search.
Mr. Jefferson was indicted in June 2007 for soliciting bribes from people who wanted help in advancing their businesses in Africa. The indictment said FBI agents found $90,000 in cash in a freezer in the Louisiana Democrat’s Washington, D.C., home, purportedly to use to bribe a Nigerian government official.
House attorneys, acting on behalf of the bipartisan leadership, filed a friend-of-the-court brief in the Jefferson case, arguing that he did not have an opportunity to screen and remove protected legislative records before the FBI raid. A federal appeals court later ruled that the search violated his constitutional rights and ordered privileged material returned.
In the Renzi case, the House attorneys representing the bipartisan leadership asked the court to throw out wiretap evidence collected by FBI agents, saying its use violated the clause. A ruling in the case is expected soon. Mr. Renzi, who survived the 2006 elections but did not seek re-election in 2008, was indicted in February 2008 on charges of extorting businesses who wanted his help with federal land swaps.
“The Speech or Debate Clause was never intended to provide members of Congress with blanket protection from prosecution for criminal acts,” Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), wrote in a brief in the Renzi case. She said the court would be “immunizing members of Congress from criminal investigation” if it said government agents may not incidentally overhear legislative material while monitoring telephone conversations.
In the Foley case, Florida investigators were denied unfettered access to his government computers when House attorneys argued that such a search would violate the clause. In September, Florida’s top law enforcement official said investigators were “denied access to critical data” and the case was dropped.
Mr. Hastert asked authorities in October 2006 to investigate whether Mr. Foley violated the law by sending inappropriate computer messages to the page. Two years later, the Florida Department of Law Enforcement (FDLE) said House attorneys argued that the clause prevented police access to his computers without Mr. Foley’s permission because the hard-drives contained data dealing with legislative activity.
In December 2007, FDLE Commissioner Gerald Bailey asked Mrs. Pelosi for her help in gaining access to Mr. Foley’s computers. According to the FDLE’s now-public investigative file, she referred the request to House attorneys who offered to search the computers on the condition that Mr. Foley’s attorneys could review and remove any documents they determined were protected by the clause.
Mr. Bailey said he was “sure anyone being investigated by FDLE would like the opportunity to review and filter evidence before providing it to us.” Florida investigators never got access, and the case was closed. Separately, the FBI also investigated Mr. Foley and didn’t bring charges against him.
Some watchdogs think the House has gone too far in using the clause to protect its members in congressional corruption cases.
Paul Orfanedes, director of litigation at Washington-based Judicial Watch, said the clause “wasn’t intended to make Congress a law enforcement free zone.”
“The House hurts its already much diminished credibility when it appears to be shielding members from criminal investigations, like it did in case of [Mr.] Jefferson,” Mr. Orfanedes said. “The public will have even less confidence in Congress than it already has if the House can’t devise a better way to let law enforcement do its job when it comes to investigating political corruption.”
Ms. Sloan, in a January 2008 letter to Mrs. Pelosi and House Minority Leader John A. Boehner, Ohio Republican, said the congressional leadership “is improperly shielding members of Congress from criminal investigation through an expansive interpretation of the Speech or Debate Clause.