Are We Confusing Congressional Privilege With The Right To Dodge Investigation?

BLAME THE COURT: Privileged

The big habbabalou in Washington these days is the raid on the offices of Rep. William Jefferson, a Democrat from Louisiana, after being videotaped taking a $100 grand as a bribe. While there are some issues regarding the manner in which the search warrant was executed because of the over-reaching grab for all documents and records in the office, and the affidavit filed to get the warrant in the first place, the big ruckus has been raised regarding the raid itself being a cross over the line that separates the powers, duties and privileges of the three branches of government. The US Constitution provides for a privilege of action and speech while on the floor of a congressional house, and privileges regarding arrest while traveling to and from congress, but there is nothing in the Constitution that protects a member of congress from criminal investigation or provides privilege or protection to a congressional office.

Article I, Section 6 of the US Constitution states:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They 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.

In this respect, the ruckus being raised by Speaker Hastert, Nancy Pelosi and others--which is surprisingly a bipartisan effort--doesn't seem to be worth the effort. The language of the Constuitution is clear that the privilege is estended to members of congress during attendance at congress. There is nothing in this language that would exempt their congressional offices--most of which are not in the Capitol Building itself--from a legally issued search warrant based on sworn testimony and demonstrating enough probable cause to convince a federal judge that probable cause exists. While there may be issues with the validity of the affidavit, the level of "probable cause," and the method in which the warrant was executed, these are matters to be challenged in court under the provisions of the federal rules of the court and evidence, not a matter of congressional privilege.

The claims of privilege in this case are no less a matter of seeking to avoid congresional accountability than the efforts of Nixon to thwart subpeonas for the Watergate tapes and documents, the Bush administration claim of privilege for the NSA spying program, or any other effort to circumvent the legal process. Let us let Jefferson fight it out in court rather than creating another ruckus between the branches of the government... and distracting us and them from more important issues.

If there's one thing that can unite members of Congress across party lines, it's their privileges. Responding to the FBI's recent raid of Democrat William Jefferson's congressional offices, Republican Speaker Dennis Hastert and Minority Leader Nancy Pelosi issued a joint statement condemning this "violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years." They demanded the immediate return of all materials seized and a commitment to keep their contents secret. Last week, President Bush partially acceded to their demands, directing the Department of Justice to seal the materials for 45 days while Congress and the executive branch argue it out. Nary a House member has spoken out forcefully in support of the FBI's search.

But the fact that the congressional arguments are self-serving doesn't mean that they're wrong. In fact, the Speech or Debate Clause of the Constitution should be interpreted to prohibit searches like these. To allow such searches undermines the independence that the clause is meant to secure for Congress. Yet the Constitution cuts both ways--it gives Congress rights against the other branches, but it also gives it the responsibility to police itself, a responsibility Congress has neglected in recent decades. Much of Congress's failure to police itself adequately can be attributed to the Supreme Court losing sight of this delicate balance in the twentieth century.

In 1963, Thomas Johnson, a former congressman from Maryland, was convicted of violating the federal conflict of interest statute and conspiring to defraud the United States for, among other things, accepting money to give a floor speech. On appeal, the Supreme Court noted that the charges "depended upon a showing that the speech was made solely or primarily to serve private interests, and that Johnson in making it was not acting in good faith, that is, that he did not prepare or deliver the speech in the way an ordinary Congressman prepares or delivers an ordinary speech." In other words, the prosecution depended on inquiring into the motives for Johnson's official actions. The Speech or Debate Clause of the Constitution, which privileges senators and congressmen against questioning "in any other Place" for "any Speech or Debate in either House," was intended precisely to prevent such an inquiry. It was intended, that is, to give members of Congress freedom from intrusions into their internal processes by both the executive and the judicial branches. The Court thus overturned Johnson's conviction.

A mere six years later, however, the Court allowed a criminal prosecution against Senator Daniel Brewster for bribery. The Court held that bribery prosecutions did not involve inquiring into legislative behavior because bribery involved taking money in return for a promise to vote a certain way--whether or not Brewster actually voted that way was irrelevant. Chief Justice Warren Burger, writing for the Court, held that "[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator." The bribery prosecution therefore did not, according to Burger, violate Brewster's Speech or Debate Clause privilege.

But this rests on a very narrow conception of what constitutes a legislator's official duties. In Burger's conception, legislators are only privileged when they talk to one another. Thus, floor speeches, votes, and preparatory research for such speeches or votes are privileged. But when they talk to their constituents or interest groups, they are doing something else--something less worthy of protection. Effective legislation, apparently, does not require communication with the people.

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