May 25, 2006

What Does The Speech And Debate Clause Cover

Well, the Courts have spoken on this matter a number of times, and the Washington Post does an excellent job of summing the matter up for us.

The Speech and Debate Clause, contained in Article I, Section 6 of the Constitution, says that members of the House and Senate "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."

It was meant to safeguard the independence of Congress against executive branch intimidation, of the kind the Founders had witnessed under King George III's colonial governors, and harassment from private lawsuits.

Over the years, however, some lawmakers invoked the clause to shield corrupt activities. Given the clause's exception for serious crimes, the Supreme Court has had to define the scope of its protections.

In a series of cases during the 1960s and '70s, the court drew a protective line around papers, speeches and activities that are "essential" to legislative acts or the motives behind them, such as floor statements or committee reports. But it declined to protect anything not closely connected to legislative work, such as remarks to the press or constituent newsletters.

In 1972, for example, the court ruled that the Speech and Debate Clause could not shield Sen. Daniel B. Brewster (D-Md.) from prosecution for accepting a bribe in exchange for his promise to vote a certain way on postage rate legislation. (Brewster pleaded no contest to the charge.)

That same year, the court ruled that a Senate aide, though covered by the Speech and Debate Clause, had to respond to a grand jury subpoena to answer questions about whether Sen. Mike Gravel (D-Alaska) had violated federal law by arranging for a private book publisher to print the Pentagon Papers. (The Justice Department later dropped the case.)

In 1979, the court ruled that Sen. William Proxmire (D-Wis.) could be sued for defamation by a scientist whose work he had mocked in a news release and newsletter.

But it also ruled in a separate case that the government could not use a House member's past votes or speeches as evidence of his motive for committing an alleged offense.

And a federal appeals court in Philadelphia ruled that the Justice Department was not entitled to look through the telephone records of a member of Congress.

So generally speaking, the protections afforded Congress by the Speech and Debate clause are pretty narrow -- and do not extend to shielding corruption from investigation and prosecution.

A ccouple of law professors also weigh in on the matter.

"An official legislative act is immune, but interference with anything beyond that" is not covered by the constitutional provision that shields Congress from executive and judicial branch interference, said Michael J. Glennon, a former legal counsel to the Senate Foreign Relations Committee who teaches at Tufts University's Fletcher School of Law and Diplomacy.

The precise materials sought in the raid were blacked out in a publicly released copy of the search warrant, but Jefferson (D-La.) said in a court filing yesterday that FBI agents took two boxes of documents and copied computer hard drives.

Both the search warrant for Jefferson's office and the raid to execute it were unprecedented in the 219-year history of the Constitution. In that sense, they violated an interbranch understanding rooted in the separation of powers -- and, indeed, in the events of 1642, when King Charles I burst into Parliament and attempted to arrest five members of the House of Commons, triggering the English Civil War.

But the taboo against searching congressional offices was a matter of tradition, not black-letter constitutional law.

"It's really a matter of etiquette," said Akhil Reed Amar, a professor of constitutional law at Yale University. "I don't see any constitutional principle here."

But that is precisely teh issue here -- there is no violation of the Constitution. Custom has decreed that the Executive branch take a less confrontational appoach to such investigations -- but in this case, there has been teh violation of another custom, namely that a member cooperate with the investigation, which Jeferson and his lawyers have refused to do. Thus the Judicial Branch has weighed in and found probable cause for a warrant to be issued -- and left open room for Jefferson to challenge the search of the office and the seizure of any and all materials, exactly as is the right of any other citizen.

And I'd like to comment upon the responses of Denny Hastert and Nancy Pelosi.

"The Justice Department was wrong to seize records from Congressman Jefferson's office in 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," Mr. Hastert and Ms. Pelosi said in a rare joint statement.

As noted above, they are clearly wrong in their characterization of the actions of the Justice Department. There is clearly no basis for demanding the return of these materials to Jefferson on the basis of any Constitutional provision, nor does "custom" constitute a basis for the laws not being enforced.

Furthermore, I am appalled by the weakness of this portion of their statement.

Once the papers are returned, "Congressman Jefferson can and should fully cooperate with the Justice Department's efforts, consistent with his constitutional rights," the statement said.

Unfortunately, that assertion ignores the history of this case. Sure, he "can and should" cooperate. But the reality is that he has not cooperated, and is unlikely to do so in the future if the past is truly prologue in this case. And Hastert and Pelosi have no means to enforce Jefferson's cooperation with the investigation -- that power only lies in the hands of the Executive and Judicial branches working together in the request for and issuance of a search warrant and its execution, which we saw over the weekend.

I applaud the position of the justice Department on this matter.

A Justice Department official, who spoke on the condition of anonymity because of the sensitivity of negotiations, said after the Hastert-Pelosi joint statement was released that "the department will not agree to any arrangement or demand that would harm or hurt an ongoing law enforcement investigation."

"We are in discussions with them on something that would preserve law enforcement interests while also allaying their institutional concerns," the official said. "But our position is that we did it legally and we did it lawfully, and we're not going to back away from that."

In other words, compliance with the mandates of the Constitution are sufficient safeguard, and claims of some sort of Congressional immunity from the Constitution are rejected.

By the way, the Congresscrook in question, Louisiana Representative William Jefferson (D-$90,000 in the freezer) is making use of the one legitimate remedy available to him -- he is challenging the warrant in court.

Jefferson challenged the weekend raid in a motion filed yesterday in federal court. The motion sought the return of the documents and "immediate relief," including that the FBI and Justice Department stop reviewing seized items; that the materials be sequestered in a locked, secure place; and that the FBI raid team file a report with the court detailing which documents were reviewed and what was done to sequester the documents.

The motion was filed with Chief U.S. District Judge Thomas F. Hogan, who signed the Saturday-night search warrant.

This is the appropriate venue for resolving the issue at hand, not the political arena or a congressional hearing room.

I paricularly like the summary of the case history contained in the Washington Post article. Be sure to read it.

OPEN TRACKBACKING TO: Free Constitution, Blue Star Chronicles, Bacon Bits, Conservative Cat, Freedom Watch

|| Greg, 05:51 AM || Permalink || Comments (0) || Comments || TrackBacks (0) ||

Trackback Information for What Does The Speech And Debate Clause Cover

TrackBack URL for this entry:
Listed below are links to weblogs that reference 'What Does The Speech And Debate Clause Cover'.

Comments on What Does The Speech And Debate Clause Cover

Post a comment

Remember personal info?




Winner - 2014 Fabulous 50 Blog Awards
Winner - 2014 Fabulous 50 Blog Awards

Winner - 2013 Fabulous 50 Blog Awards

Winner - 2012 Fabulous 50 Blog Awards

Winner - 2011 Fabulous 50 Blog Awards

Winner - 2010 Fabulous 50 Blog Awards

Winner - 2009 Fabulous 50 Blog Awards

Posts by Category

Announcements (posts: 13)
Blogging (posts: 187)
Border Issues & Immigration (posts: 421)
deferred (posts: 4)
Education (posts: 685)
Entertainment & Sports (posts: 483)
Guns & Gun Control (posts: 65)
History (posts: 329)
Humor (posts: 88)
Israel/Middle East (posts: 44)
Medical News (posts: 54)
Military (posts: 273)
News (posts: 1570)
Paid Advertising (posts: 234)
Personal (posts: 108)
Politics (posts: 5261)
Race & Racism (posts: 281)
Religion (posts: 819)
Terrorism (posts: 884)
Texas GOP Platform Reform Project (posts: 4)
The Courts (posts: 310)
Watcher's Council (posts: 482)
World Affairs (posts: 345)


January 2016
December 2015
November 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004
September 2004
August 2004
July 2004
June 2004
December 0000



Creative Commons License
This weblog is licensed under a Creative Commons License.

Powered By

Powered by
Movable Type 2.64

Administrative Stuff

Email Me
Syndicate this site (XML)

Advertising Disclosure


About Me

NAME: Greg
AGE: 50-ish
SEX: Male
OCCUPATION: Social Studies Teacher
LOCATION: Seabrook, TX
DISCLAIMER: All posts reflect my views alone, and not the view of my wife, my dogs, my employer, or anyone else. All comments reflect the view of the commenter, and permitting a comment to remain on this site in no way indicates my support for the ideas expressed in the comment.

Search This Site

Support This Site

Recent Entries

Who Is Regan Theiler And Why Was She Allowed To Spend Public Funds On A Sole Source Contract For Her Part-Time Employer?
Not My Idea Of A Stimulating Evening
About Trump's Liberty University Speech
Do Not Place The Secessionist "Texas Independence" Measure On The 2016 Republican Primary Ballot
Conservatives Vs. Liberal On Those Engaged In Violent Political Activity
Tom Mechler Makes His Case Against Moving The 2016 RPT Convention
Jared Woodfill Makes His Case For Moving The 2016 RPT Convention
Questions About Moving The 2016 RPT Convention
Reject The Call To Move 2016 Republican Party Of Texas Convention
It Is Too Bad That Political Parties Cannot Reject Voters Who Seek To Join, Stop Would-Be Candidates Who Want To Run


Watchers Council
  • Ask Marion
  • Bookworm Room
  • The Colossus of Rhodey
  • The Glittering Eye
  • GrEaT sAtAn"S gIrLfRiEnD
  • The Independent Sentinel
  • JoshuaPundit
  • Liberty's Spirit
  • New Zeal
  • Nice Deb
  • The Noisy Room
  • The Razor
  • Rhymes With Right
  • The Right Planet
  • Simply Jews
  • Virginia Right!
  • Watcher Of Weasels

  • Political & Religious Blogs