Speeches and Debates

by

Congressman William Jefferson’s contention, that all materials in his office are immune from searches and seizures, has been struck down by Federal District Judge Thomas F. Hogan as an improper interpretation of the Speeches and Debates Clause (U.S. Constitution, Article I, Section 6). (Judge Hogan’s opinion is here in PDF format.) The Conclusion follows:

The facts and questions of law presented here are indeed unprecedented. It is well-established, however, that a Member of Congress is generally bound to the operation of the criminal laws as are ordinary persons. The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” Brewster, 408 U.S. at 516. Members of Congress are not “exempt[] . . . from liability or process in criminal cases.” Gravel, 408 U.S. at 626.

The existing broad protections of the Speech or Debate Clause – absolute immunity from prosecution or suit for legislative acts and freedom from being “questioned” about those acts (including privilege from the testimonial act of producing documents in response to a subpoena) – satisfy the fundamental purpose of the Clause to protect the independence of the legislature. The Court declines to extend those protections further, holding that the Speech or Debate Clause does not shield Members of Congress from the execution of valid search warrants. Congressman Jefferson’s interpretation of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial precedent and will not be adopted here. See Williamson v. United States, 28 S. Ct. at 167 (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (quotation omitted).

For the foregoing reasons, the Court has found that the search executed on Congressman Jefferson’s congressional office was constitutional, as it did not trigger the Speech or Debate Clause privilege, did not offend the principle of the separation of powers, and was reasonable under the Fourth Amendment. Accordingly, the Court will deny the motion for return of property. An appropriate order will accompany this Memorandum Opinion.

This seems to bear out what I had written:

It seems to me that Jefferson’s Complaint claims not so much that he is protected by the privilege from Arrest than that his office is immune to searches and seizures because searches and seizures should be interpreted as questioning him about his legislative operations.

…

My guess is that no judge will grant absolute immunity of the sort Jefferson seems to be looking for. I also don’t think any judge will lay down an exact rule as to how a search may be conducted. If anything, the court would probably issue a guideline or a balancing test to help future judges decide whether or not appropriate precautions have been and will be taken before signing off on a warrant.

Judge Hogan’s conclusion seems reasonable, and consistent with what I know of Constitutional Law. If appealed, I highly doubt his ruling will be overturned. At most, it may be remanded for further consideration, if a higher court does formulate a newer guideline.

[Cross-posted at Between Worlds]

2 thoughts on “Speeches and Debates”

  1. Good post.

    A.V. Dicey, writing about the Rule of Law, back in the late 19th Century, said:

    The rule of law … remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man’s legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man’s individual rights are far less the result of our constitution than the basis on which that consitution is founded.

    That second point “every man’s legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm” is critical here. He goes on to say:

    In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority.

    The kind of special treatment that this man was asking for was in direct opposition to the very notion of the Rule of Law.

    Good thing he didn’t get away with it.

  2. I was relieved to hear this decision. The occasional arrogance of our legislators, like the occasional arrogance of ordinary citizens, can be stunning. The fact that Hastert and Pelosi entered into this fray on the side of fellow congressman Jefferson show once again how right Lord Acton was; power corrupts. Hastert and Pelosi want corruption enshrined into law for themselves, whatever flowery justification they try to veil it with. Arrogant bastards.

    Thank you Judge Hogan.

Comments are closed.