Opinion
No. 4:01 CR 201
January 28, 2002
Defendant Traficant filed a Motion to Suppress Evidence based on the Speech or Debate Clause of the United States Constitution. The Government opposed the motion. In his Motion to Suppress, Congressman Traficant claimed that "all of the documents/evidence/exhibits delivered by the Government" are privileged. According to the Government, its 24 July 2001 delivery of documents consisted of 37 boxes containing 99,880 pages and its 23 July 2001 letter had attached to it 233 documents. Now, however, the focus is on only six documents and whether or not any of those six documents should be suppressed under the privilege afforded the Defendant, Congressman Traficant, by the Speech or Debate Clause of the U.S. Constitution. How we arrived at six documents out of more than 100,000 will be explained below in the section entitled "Background".
Docket No. 37.
Docket No. 47.
Docket No. 37.
Docket No. 56.
The Speech or Debate Clause of the U.S. Constitution is brief: "For any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." U.S. CONST. art 1, § 6, cl. 1. Over the years, the origins and purposes of the Clause have been elucidated and explored in federal courts, including the Supreme Court.
Of importance here is that if, and to the extent that, the Speech or Debate Clause applies to a particular situation, then the privilege it confers has the effect, among others, of preventing the Government in a criminal case from being able to use certain evidence.
One Supreme Court case involved a former United States Senator, charged with solicitation and acceptance of bribes in violation of 18 U.S.C. § 201 (c)(1) and 201(g). See United States v. Brewster, 408 U.S. 501 (1972). The case addressed the question of whether a Member of Congress may be prosecuted for accepting a bribe in exchange for a promise relating to an official act. Chief Justice Burger explained that "the immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." Brewster, 408 U.S. at 507. Acknowledging the Clause's historic roots in English history, but mindful of distinctions between the English Parliament and America's co-equal branches of Government, Chief Justice Burger cautioned that our speech or debate privilege served distinct purposes in light of the American experience and in the context of our constitutional scheme of Govemment. "Our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Govemment." Id. at 508.
I. Background
In spite of Defendant Traficant's boundless assertion of the Speech or Debate privilege, the status of only six documents remains at issue here. A brief review will explain how those six documents became our focus.
The Government filed a response to Congressman Traficant's Motion to Suppress, in which it noted that his "blanket request" for suppression of documentary evidence did not identify any particular documents that he thought were privileged or explain why he believed they were privileged. The motion was referred by this Court to United States Magistrate Judge William H. Baughman, Jr. for a Report and Recommendation ("RR"}. In light of the 37 boxes containing 99,800 pages and an additional 233 documents and of Defendant's blanket assertion of the privilege, this Court ordered Defendant Traficant to file a supplement to his Motion to Suppress specifying, with particularity, each document, piece of evidence, or exhibit that he claims is protected by the Speech or Debate Clause privilege, and, with particularity, the reasons why the privilege applies to that item, along with a copy of each document, piece of evidence, or exhibit that he specifies as privileged Defendant Traficant filed his supplement, which included a list of only 44 documents he argues are privileged. However, because he did not attach, as ordered, the documents he cited to in his supplement, Magistrate Judge Baughman again ordered the Congressman to file a copy of each listed document. Defendant Traficant did so.
Docket No. 47.
Docket No. 51.
Docket No. 56.
Docket No. 60.
Docket No. 61.
On 22 October 2001. (Docket No. 67).
When the Government responded to Defendant Traficant's supplements, it stated that it will not seek to introduce as evidence twenty-four of the documents that Defendant Traficant claims are privileged: Traficant Documents 3, 5, 9, 13, 16, 17, 22, 24-28, 30, 34-44. In reliance on the Government's representation, this Court will not address those twenty-four documents here.
Docket No. 69.
Further, in an effort to avoid Speech or Debate Clause problems, the Government redacted other of the documents that Congressman Traficant had specified. The Government also attached nine Department of State documents and one Department of Commerce document, none of which were claimed as privileged by Congressman Traficant, but which the Government states it believes may implicate the Speech or Debate privilege. In addition, on 5 December 2001, the Government filed a Supplemental Notice Regarding the Speech or Debate Privilege and attached eight new documents that it plans to introduce as evidence and that it believes may implicate the Speech or Debate Clause.
These ten documents are: Cafaro Bates Nos. 95558, 95559, 95560-61, 95562, 95563, 95564-65, 95566, 95567, 95568-69, and 95570-71.
Docket No. 83.
These eight documents are: James Traficant Bates Nos. 1, 28, and 600-601 and Cafaro Bates Nos. 1204-06, 2498-2500, 98753, 98755, 98803.
II. Magistrate Judge's Report and Recommendation
Magistrate Judge Baughman issued his RR on 21 December 2001. Objections to the RR were due on or before 8 January 2002. The Government's objection was timely filed, but Defendant Traficant did not file any objections to the RR.Under 28 U.S.C. § 636 (b)(1), this Court reviews de novo the portion of the Magistrate Judge's report and recommendation to which specific objection was made.
In his RR, Magistrate Judge Baughman examines thirty of the forty-four documents that were attached to Defendant Traficant's Supplement to the Motion to Suppress, plus the nine Department of State documents that were attached to the Government's Response to the Motion to Suppress, the one Department of Commerce document that was attached to the Government's Response to the Motion to Suppress, and the eight documents that were attached to the Government's Supplemental Notice.
Docket No. 60. Magistrate Judge Baughman stated that, of the documents submitted by Defendant Traficant, he would analyze only those that the Government intended to introduce as evidence. Nonetheless, he also provided an analysis of ten Traficant documents that the Government said that it would not seek to introduce. (Traficant Documents 3, 17, 26, 28, 30, 36, 37, 40, 42, and 43). Thus, Magistrate Judge Baughman considered a total of thirty Traficant documents — twenty that the Government intends to introduce and ten that it does not intend to introduce.
Docket No. 69.
Docket No. 69.
Docket No. 83.
The Magistrate Judge recommends suppression of only six of the forty-eight documents he analyzed. Those six documents he deems privileged under the Speech or Debate Clause of the U.S. Constitution. Magistrate Judge Baughman concludes, and the Government does not object to this conclusion, that the remaining documents submitted by Defendant Traficant and by the Government are not protected by the Speech or Debate privilege. Thus, only the recommended suppression of those six documents, to which the Government objects, will be considered here.
These six documents are: Traficant Document No. 14 (Cafaro Bates No. 002285), Traficant Document No. 15 (Cafaro Bates No. 002286), Traficant Document No. 18 (Cafaro Bates Nos. 002362-002364), Traficant Document No. 36 (Cafaro Bates No. 001332), Traficant Document No. 37 (Cafaro Bates No. 002349), and DOS Document No. 7 (Bates No. 95566) (further redactions recommended).
The Government argues that each of the six documents "concerns a promise or a threat to take future legislative acts, and does not concern any matter that is integral to the deliberative or communicative process of the House of Representatives." (Docket No. 122 at 1). The Government agrees with the Magistrate Judge's detailed description of the law regarding the Speech or Debate Clause privilege. With the exception of the Magistrate Judge's analysis of the six documents at issue, the Government has no objection to the conclusions in the Magistrate Judge's RR. (Docket No. 122 at 2, 3).
III. Analysis
None of the six documents at issue here is either speech or debate in the Congress of the United States. As Magistrate Judge Baughman states, if an action is not speech or debate, then, under U.S. Supreme Court precedent, in order to be protected by the privilege, the act must be "legislative" in the sense that it is an integral part of the deliberative and communicative functions of the Congress.
Thus, this Court must determine whether any of the six documents implicate "legislative acts" of Congressman Traficant, not as we use the words in other contexts, but as U.S. Supreme Court jurisprudence has defined the phrase "legislative act" so as to invoke the protections of the Speech or Debate privilege.
Explaining the term "legislative act," Chief Justice Burger stated in the Brewster case:
A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or in the Senate in the performance of official duties and into the motivations for those acts.Brewster, 408 U.S. at 512. Further clarifying, the Chief Justice emphasized:
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, preparing so-called "news letters" to constituents, news releases, and speeches delivered outside the Congress. 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.Id. (Emphasis added). Because the wide range of legitimate activities engaged in by Members of Congress are "other than the purely legislative activities protected by the Speech or Debate Clause," the Government is not prevented by the Speech or Debate Clause from using evidence of, or relating to, such activities. There may be other reasons such evidence may not qualify for admission, of course, but the Speech or Debate privilege does not bar its use.
None of the six documents under scrutiny here records how the Congressman voted or what he said in committee — which are activities acknowledged to invoke protection under the Speech or Debate privilege as "legislative" acts.
Five of the six documents at issue here involve communications between Paul Marcone ("Marcone"), Congressman Traficant's Chief of Staff, and Richard Detore ("Detore"), Chief Operating Officer of U.S. Aerospace Group, a company in which one of Congressman Traficant's constituents was an officer. The Government does not challenge the Magistrate Judge's acknowledgment of established law that if an act is performed by a Congressperson's staff member, and that act would have been privileged under the Speech or Debate Clause if performed by the Congressperson him or herself, then the act will be privileged. Thus, the fact that one of the actors in five of the six challenged documents was the Congressman's Chief of Staff rather than the Congressman, does not in itself jeopardize the Congressman's protection under the privilege. The remaining document of the six is a letter written by the Congressman and will be analyzed separately.
Magistrate Judge Baughman concluded that the Speech or Debate Clause does lot protect promises to perform acts in the future (RR at 15), a conclusion the Government does not challenge. Rather, the Government itself relies upon that principle in challenging Magistrate Judge Baughman's RR.
The Government differs with the Magistrate Judge in a narrow, yet significant sense. The Magistrate Judge concluded that because each of the six documents "reflects consultation by Traficant or a member of his staff for purposes of deciding upon the content of the language to be used in specific legislation," the Speech or Debate privilege applies and the documents should be suppressed. The phrase the Magistrate Judge uses in his finding does refer to future acts, "to be used in specific legislation." (RR at 35-36). The Government focuses on the six documents as "evidence of promises or threats to take future legislative action," in effect contending that such a characterization trumps the Magistrate Judge's conclusion. The Government further objects that each of the six documents "does not concern any matter that is integral to the deliberative or communcative process of the House of Representatives."
Docket No. 22, page 1.
The sequence of events recited in the RR, is instructive and suggests the legislative context. (RR at 6-7). Four of the six documents are fax communications between Marcone and Detore that seem to appear in the context of the Airport Improvement Program Reauthorization Act of 1998, H.R. 4057, 105th Cong. (2d Sess, 1998), 1998 WL 720686, particularly to § 813 of the bill, "Enhanced Vision Technologies." The Subcommittee on Aviation had hearings on H.R. 4057 on 12, 18, 19 and 25 March 1998.
Sequentially by date, Traficant Documents 14, 15, 37, and 18.
On 8 May 1998, a fax was sent from Marcone to Detore. The fax states that a "DoD authorization bill is coming up next week" and asks Detore "what, specifically, do you want in the bill?" The RR characterizes this document as consultation between a member of a Congressman's staff and a constituent regarding contents of proposed legislation and which constitutes a legislative act. The Magistrate Judge finds that a document "relating to such consultation comes within the [Speech or Debate] privilege." (RR at 19). The Government, however, focuses on the future language of the document and characterizes it as a promise of a future act. Although the document reflects current consultation, the legislation is "coming up next week," and the question of what Detore "wants in the bill" is prospective. Thus, although Document 14 mentions legislation, it does not refer to an act that has already been performed.
Traficant Document 14, Cafaro Bates No. 2285.
On 11 May 1998, Marcone sent a fax to Detore stating that "[i]t was recommended that a line item be inserted in the USAF's Procurement section" and setting forth recommended language with a brief rationale for it. (Emphasis in original). Although this document also involves consultation between a Congressional staffer and a constituent, on its face, this document presents temporal ambiguity that may or may not be resolved by further evidence in this case. Thus, the Court will reserve ruling on whether Document 15 is privileged.
Traficant Document 15, Cafaro Bates No. 2286.
On 16 June 1998, H.R. 4057 was introduced. The next day, on 17 June 1998, Marcone sent a fax cover sheet to Detore stating that a draft amendment was attached and asking, "Would you object if we included in the definition of enhanced vision technologies, infrared?" Marcone adds: "Get me info on infrared." The Government redacted the sentence mentioning the attached draft amendment. The un-redacted portion of this document, in a way that is similar to Document 14, is asking for a constituent's views on draft legislation and also is a request for information. It reflects current consultation between a staff member and a constituent about the possibilities of future action regarding a draft for an amendment. Document 37 does not refer to an act that has already been performed.
Traficant Document 37, Cafaro Bates No. 2349.
"Nothing . . . prohibits excising references to legislative acts, so that the remainder of the evidence would be admissible. United States v. Helstoski, 442 U.S. 477, 489 (1979).
On 18 June 1998, the Subcommittee reported H.R. 4057 to the House Committee on Transportation and Infrastructure.
On 4 August 1998, a fax was sent from Detore to Marcone with an attachment of a block of language regarding authorization of funds. Also on 4 August 1998, the House passed H.R. 4057. This document, like Document 15, is so bare — a fax of what might be language for a bill or from a bill — that its ambiguity prevents proper analysis at this time. Thus, the Court will reserve ruling on whether Document 18 is privileged.
Traficant Document 18, Cafaro Bates Nos. 2362-64.
On 25 September 1998, the Senate passed H.R. 4057 to amend Title 49 of the U.S. Code, inserting their version, S. 2279, instead of the House language, except for the enabling clause.
Almost a year later, an email dated 7 July 1999 from Marcone to Detore advises Detore that Congressman Traficant is going to move $4 million for MEANPALS testing to the Army's air traffic control program in an appropriations bill and that "we'll" add language to a conference report. This document has been partially redacted by the Government. Although the document refers to an appropriations bill, it is wholly prospective and does not concern an act that has already been performed.
Traficant Document 36, Cafaro Bates No. 1332.
The three documents which reflect consultation between the Congressman's chief of staff and a constituent each are properly characterized by the Magistrate Judge as "acts of staff conferring with a constituent about a proposed bill," which he finds qualifies them as legislative acts and within the privilege. However, these three documents also are properly characterized by the Government as evidence of promises to take future legislative action, and such promises are not within the privilege.
Documents 14, 36, and 37.
The Government further contends the document do "not concern any matter that is integral to the deliberative or communicative process of the House of Representatives." (Docket No. 122, page 1). This is a conclusory statement mirroring the language the Supreme Court has used to describe "legislative acts" but in itself does not advance the RR analysis.
Are these documents legislative acts — acts "generally done in Congress in relation to the business before it . . . done in the House or in the Senate in the performance of official duties . . ."? Brewster, 408 U.S. at 512. or are these "activities other than the purely legislative activities protected by the Speech or Debate Clause"? Id.
In United States v. Helstoski, a former member of the House of Representatives, was charged with having accepted money while a Member of the House in return for promising to introduce bills. 442 U.S. 477 (1979). Chief Justice Burger again delivered the opinion of the Court. Referring back to the Brewster case, he reiterated that "Promises by a Member to perform an act in the future are not legislative acts." Id. at 489. He continues,
Revealing information 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 Senate, thereby violating the explicit prohibition of the Speech or Debate Clause.
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 with whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other "legislative acts" such as utterances in committee hearings and reports. But it is clear from the language of the clause that protection extends only to an act that has already been performed. (Emphasis added and internal citations omitted).Id. at 490. For the reasons above set forth, this Court finds Documents 14, 36, and 37 are not protected under the privilege of the Speech or Debate Clause, and as to those documents, Defendant Traficant's Motion to Suppress will be denied.
The final document under consideration is a letter from Congressman Traficant to the First Secretary and Counselor of the Saudi Arabian embassy, partially redacted by the Government. In the letter, Congressman Traficant states that if no significant progress is made on a Bucheit contract dispute, he will inquire of a subcommittee chairman about setting a hearing date. Bernard Bucheit is a constituent of Congressman Traficant. The Congressman also states that "should any legislation relating to U.S. arms sales to Saudi Arabia be considered on the floor of the House of Representatives this fall," he will offer an amendment to restrict arms sales to Saudi Arabia "unless progress is made or satisfactory settlements are reached . . ."
DOS Document 7, Bates No. 95566.
The un-redacted portions of this document contain only conditional promises of future action. Moreover, as an attempt to influence the actions of a foreign Government, like efforts to influence executive agencies, the letter does not fall within the deliberative functions of Congress. Thus, the letter, as redacted, is not privileged and will not be suppressed.
IV, Conclusion
The Report and Recommendation is adopted in part. The portions of Magistrate Baughman's Report and Recommendation to which there were no objections are adopted? Defendant Traficant's motion to suppress is denied with respect to Traficant Documents 1-14, 16, 17, and 19-44.
See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The Court reserves ruling on whether Traficant Documents 15 and 18 are privileged.
The nine Department of State documents, one Department of Commerce document, and eight supplemental notice documents submitted by the Government and considered by Magistrate Judge Baughman are not privileged under the Speech or Debate Clause.
IT IS SO ORDERED.