Congressional staffer wires up on his boss

Thought the search and seizure of Congressman Bill Jefferson's (D-LA) office in the Capitol raised some interesting questions? Well, yesterday we learned from The Washington Post that former Congressman Robert Ney's (R-OH) Chief of Staff, Will Heaton, wore an FBI wire to record his boss on the phone and in crucial face-to-face meetings, beginning last summer. These recordings were "exceptionally important" to the FBI's investigation of Jack Abramoff and the Congressman who did his bidding.

Heaton plead guilty to conspiracy this past February in connection with the probe into Abramoff, Ney, and others. Ney is already serving a 30 month sentence for corruption after his own guilty plea in the case. The new revelations are a result of documents filed in court to justify the joint request by DOJ and Heaton for his jail time to be served in home detention, rather than in a prison.

Heaton explained the reasons for his cooperation in a letter to the judge earlier this month, excerpted in the Washington Post:

"The moment I walked into my first meeting with the Justice Department, a huge weight was lifted off my chest," Heaton wrote in an Aug. 1 letter to U.S. District Judge Ellen S. Huvelle, who is scheduled to sentence him on Thursday. Dreading the role of "tattletale on the playground," Heaton wrote, "I chose to let these grossly unprofessional and immoral actions slide for the sake of acceptance amongst my professional peers. For that, I am ashamed and deeply sorry."

Justice Department attorney Mary Butler described generally Heaton's cooperation:

Heaton recorded most of his conversations with Ney during a two-week period when the lawmaker was out of town, Butler said. "Heaton's substantial assistance in the investigation and prosecution of Ney was critical to Ney's decision to admit his involvement in the corrupt relationship with Abramoff," Butler wrote. "The tapes made by Heaton captured important circumstantial evidence that statements Ney had made to others about matters material to the investigation were false or intentionally misleading."

Heaton also turned over documents from Ney's office and recorded colleagues in Ney's office. He taped many phone calls, and wore a wire for a particularly crucial 2 1/2 hour one-on-one conversation with Ney.

Part of Ney's criminal actions involved agreeing to insert false and misleading information into the Congressional Record. Under the speech & debate clause, Ney's actions in actually inserting the material into the Record would be inadmissible. Because of that, Heaton's taped confirmation of Ney's agreement to insert the false material was very important to the case.

Heaton conducted this taping, and turned over documents, while he was still Congressman Ney's chief of staff. As regular readers know, I recently opined that the decision from the U.S. Court of Appeals for the District of Columbia regarding the search and seizure of documents within Congressman Jefferson's office was both impractical and wrong on the law. However, given that the decision is currently the law in the District of Columbia (where Heaton and Ney were prosecuted), prosecutors should be very glad that Ney plead guilty before that case came down.

The special screening procedures adopted by the FBI in the Jefferson search were insufficient to protect the Congressman's speech and debate clause rights, the DC Court of Appeals explained,

because they denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents.

The court specifically held:

Accordingly, we hold that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the Clause.

I'm not sure I see any constitutional difference, from a speech and debate clause perspective, between the Executive obtaining potentially privileged materials via search warrant or by subornation of a Congressman's chief of staff. While Heaton seems to have very willingly cooperated, a future Congressman would certainly make the case that his employee was coerced by the Executive Branch into becoming a spy in his office by heavy-handed threats of investigation, prosecution, and subsequent financial ruin. This is not merely a matter of misplaced trust (under Fourth Amendment law, once you entrust your private documents to a third party, you run the risk that the third party will be faithless to you and turn them over to others, including the government). Rather, the Executive Branch turned an employee of the Legislative Branch into a full-time agent for the Executive, as described by Ms. Butler:

"Throughout his proactive cooperation, Heaton conscientiously followed the instructions given him by the FBI, notwithstanding that he was cooperating in an investigation of his one-time friend and mentor Bob Ney."

Heaton turned over documents from Ney's Congressional office to prosecutors, without any review by Ney. Maybe none were privileged, maybe some where, maybe all were. Under the DC Appeals Court ruling, Congressman Ney would be entitled to review all such documents before they were turned over. The ruling did not hinge on the place being searched (a Congressional office in the Capitol) but on the exposure of the Executive to privileged legislative materials.

I would imagine that the same logic would apply to conversations between Ney and his staff. The speech and debate clause privilege, like executive privilege, is not precisely defined. Just as the executive privilege protects confidential discussions between the President and his closest aides, so too does the speech and debate clause privilege likely protect at least some communications between a Congressman and his top aides. After all, they often speak with each other through their respective staffs. Under the reasoning of the Jefferson court, it is impermissible for the Executive Branch to be exposed to such privileged communications prior to review by the Congressman for an opportunity to assert privilege, followed by an in camera review by a judge to review the claim of privilege.

Frankly, I think this situation sheds further light on the flaws of the Jefferson opinion. But until overruled or limited by a rehearing or by the Supreme Court, that's the law of the District of Columbia circuit. Under its logic, the FBI's use of Congressman Ney's chief of staff to disclose Ney's official documents and record his confidential communications with his own staff were improper.

Of course, since the court's only remedy for this violation is exclusion of any actually privileged materials from evidence, the result would probably still be the same. No harm, no foul. Since conspiring to commit a crime is not a legitimate Congressional function, the actual evidence against Ney would not be privileged.

Related posts:

• Culture of Corruption
• Congress Is Not Above the Law - 2 Branches to 1
• Breaking News - Appeals Court Rules on Search of Jefferson's Capitol Office
• An Impractical Decision on Jefferson
• Executive Privilege and Congressional Subpoena Power Stem from the Same Source

Update by Pat: Welcome, Volokh Conspiracy visitors, and thanks to Jonathan Adler for the link. While you're here, roam around, kick our tires, and add us to your blogrolls. We just celebrated our 100,000th visit, according to Sitemeter, and we're talking today about a better Ledbetter... listening to the awesome sound of Huddie "Lead Belly" Ledbetter, rather than dryly (but comprehensively!) discussing the legal travails of Ms. Lilly M. Ledbetter and the fall-out from her lawsuit against the Goodyear Tire & Rubber Co.