Sunday, May 28, 2006

Congressional Immunity From Search Warrants. Are They Serious? Part II

Congress members upset about the recent search of the office of one of their own by the FBI have now thrown out the Speech and Debate Clause (Article I, Section 6) of the Constitution as one of the reasons that the search was unconstitutional (or, as I have put it in a recent post: why Conress members think there is a search warrant exception when it comes to their congressional offices). I think we are witnessing a problem that happens all too often with politicians. They open their mouths and make an argument without having read the law their talking about first.

I can excuse the act of speak-first, be-proven-wrong-later to some degree when it comes to an ambiguous provision or contradictory provisions of the constitution. Those scenerios require researching court cases to determine the viability of a particular position. Researching cases can be cumbersome, mind-numbingly boring and, in some instances, disclose more ambiguity that it resolves. But, all to often, I see politicians spout off about what a constitutional provision, statute, or ordinance means when there is no language in the provision, statute or ordinance to support their claim.

So here is the portion of the Speech and Debate Clause regarding immunity/privilege:

They [Senators and Representatives] shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.


The first part of the clause just states that they cannot be arrested during their attendance at a Congressional session or when they are going to or coming from session. That wasn't the case here. Even if it was, the exemption doesn't apply when it comes to felonies. The bribery allegation in question regarding congressman Jefferson is a felony.

As far as the second part of the clause, the search warrant was not questioning congressman Jefferson's speech or debate in the House of Representatives. It was a legal process for gaining information about the actions of congressman Jefferson in accepting bribes when he wasn't engaged in speech or debate in the House.

I don't think any one - court, Congress, or the public - is prepared to buy into the argument that the bribery is so intertwined with Jefferson's speech and debate in the House that the search has the effect of questioning Jefferson's speech and debate. That amounts to a claim that members of Congress are exempt from crimes such as bribery on the basis that they spoke or debated a topic or issue, the purpose of which was to bring about the object of the bribery.

With the "plain language" of the Speech and Debate Clause out of the way, I'll close with a result of some of that mind-numbing research. Orin Kerr, a law professor at George Washington Univesity Law School apparently did some of it. He brings to light the United States Supreme Court's opinion in Gravel v. United States, 408 U.S. 606 (1972). In Gravel, the Court said the following:


[The Speech and Debate Clause] does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized 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. If [conduct of the member of Congress being investigated] would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause.

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