Alissa M. Dolan
Legislative Attorney
Todd Garvey
Legislative Attorney
Members of Congress have immunity for their legislative acts under Article I, Section 6, clause 1, of the Constitution, which provides in part that “for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place.” Even if their actions are within the scope of the Speech or Debate Clause or some other legal immunity, Members of Congress remain accountable to the house of Congress in which they serve and to the electorate. In cases in which the Clause applies, the immunity is absolute and cannot be defeated by an allegation of an improper purpose or motivation. When applicable, the Clause provides both immunity from liability (in civil and criminal proceedings) and a complimentary evidentiary privilege.
Recently, two separate and previously unresolved issues arose with respect to the scope and application of the Speech or Debate Clause. The first case concerned claims of employment discrimination brought against Members’ offices pursuant to the Congressional Accountability Act of 1995. Both the Tenth Circuit Court of Appeals and the D.C. Circuit ruled that the Speech or Debate Clause does not automatically prevent such suits from proceeding. Additionally, an appeal to the Supreme Court was rejected because the Court ruled that it lacked a jurisdictional basis to decide the case. These decisions, however, appear to leave unanswered significant questions about the use and introduction of evidence related to “legislative acts,” which are protected by the Speech or Debate Clause. Such questions could ultimately frustrate the ability of potential plaintiffs to pursue their claims successfully.
In August 2007, the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its opinion in a case arising from the execution of a search warrant on the Rayburn House Office of Representative William J. Jefferson. The search was conducted as part of the FBI’s investigation of Representative Jefferson to determine whether he was involved in criminal activity, including bribery and other felonies. Such an action by the executive branch appears to be unprecedented. It raised significant constitutional questions about potential intimidation of the legislative branch and threats to its independence, which the Clause is designed to protect. Although Representative Jefferson lost his initial legal challenge, the appeals court subsequently held that the search violated the Speech or Debate Clause. The court ordered the district court to provide Representative Jefferson with copies of the seized materials and a chance to assert his privilege claims ex parte and in camera. Moreover, the appeals court ordered that the Department of Justice (DOJ) continue to refrain from reviewing any of the seized materials until the privilege claims were evaluated by the lower court.
In 2011, the Ninth Circuit Court of Appeals also weighed in on how to apply the Clause to executive branch criminal investigations of Members. In that case, Representative Richard Renzi was accused of agreeing to support legislation in exchange for a private land purchase agreement benefitting one of his creditors. He was indicted on numerous criminal counts, including extortion and fraud, which he challenged on Speech or Debate Clause grounds. The appeals court determined that his challenged actions were not covered by the Clause. Additionally, the Ninth Circuit appeared to split with the D.C. Circuit analysis in Representative Jefferson’s case on whether the Clause prevents the executive branch from ever viewing protected evidence.
This report examines the constitutional background of the Speech or Debate Clause and these recent developments in jurisprudence.
Date of Report: August 8, 2012
Number of Pages: 22
Order Number: R42648
Price: $29.95
To Order:
For email and phone orders, provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreportsTo Order:
Posts
