Legislative Immunity's Effect on Recent Investigations of Members of Congress

Yesterday's Washington Post has a long article on a topic one would expect to find in a law review: the effect of the Constitution's Speech or Debate Clause on the prosecution of members of Congress.

The article starts out with a strong statement: "A constitutional clash over whether House members are immune from many forms of Justice Department scrutiny has helped derail or slow several recent corruption investigations of lawmakers."

Jerry Markon and R. Jeffrey Smith go on to note that "House members have increasingly asserted the privilege in corruption probes, often citing a 2007 court ruling  that said FBI agents violated the Constitution when they searched the office of then-Rep. William J. Jefferson (D-La.)." FBI officials said that the decision would "seriously and perhaps even fatally" undermine corruption probes of members of Congress.

Has this turned out to be true? According to the article, legislative immunity challenges under the Speech or Debate Clause put an end to an investigation of former representative Tom Feeney (R-Fla.), hampered probes of Rep. Peter J. Visclosky (D-Ind.) and former representative John T. Doolittle (R-Calif.), and slowed a pending corruption case against former representative Rick Renzi (R-Ariz.) (see a second article on what happened to these investigations).

But the worst thing appears to be that leaders of both political parties support this turn of events. "The incoming and outgoing House leaders ... have jointly cited the constitutional clause to challenge much of the indictment of Renzi, who was extensively wiretapped. He is charged with attempting to benefit financially from a land deal." A House brief in the Renzi case compared FBI methods to the wiretapping of J. Edgar Hoover.

It comes as little comfort that Lanny A. Breuer, the assistant attorney general who oversees the Justice Department's Public Integrity Section, has said that legislative immunity "is not a roadblock. If you're corrupt, we're going to look at you, and we're going to prosecute you aggressively."

Is Breuer telling the truth? According to the article, the Obama administration "has abandoned without filing charges at least seven investigations of current or former members of Congress." Not all were due only to legislative immunity challenges, but abandonment doesn't sound very aggressive to me.

This doesn't mean that everyone got away with their unethical or criminal conduct. William Jefferson was convicted (not of what was found in his office, but what was found in his freezer), and despite the fact that his FBI probe was abandoned, Tom DeLay was convicted.

One lawyer, who spoke anonymously, as if talking about the Constitution can get you into trouble, is quoted as saying, "If you can't introduce legislation, a bill, a speech on the floor, how do you make the case?'' In other words, legislative immunity makes life very difficult for prosecutors. And with the decisions of the last few years, this is increasingly true of ethics commissions, as well.

Absolute legislative immunity, such as members of Congress have with respect to their legislative activities, is not something that local government legislators have, at least not yet and not in an ethics context. But if they do get it, there is no reason to believe that ethics commission and inspector general investigations and enforcement proceedings will not be hampered just as much. And if there was no enforcement, would local legislators seek advice, make disclosures, go to training course,  or follow open meeting laws? In other words, would they take part in ethics programs at all?

Robert Wechsler
Director of Research-Retired, City Ethics

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