May 26, 2006

JEFFERSON ON JEFFERSON: Writing in Slate, Akhil Amar writes on the Framers’ views on Congressional immunity:

None of what T.J. said helps W.J. W.J. is a target of a criminal corruption investigation, and if criminally charged, he would have no more Arrest Clause protection than any of the countless other sitting Congress members who have been criminally prosecuted over the years—Dan Rostenkowski, Duke Cunningham, and Tom DeLay, to name just three.

Since W.J. has no immunity from an ordinary criminal arrest, it is hard to see why he has some kind of blanket immunity from an ordinary criminal search to uncover evidence of his suspected crime. If other white-collar suspects are vulnerable to office searches, why is William Jefferson any different?

What about the remainder of Article I, Section 6, which specifically protects congressional “Speech or Debate”? Here, too, the language provides little shelter for W.J.

This is no surprise. The scope of Congressional immunity is, and always has been, narrow. What’s disappointing is that the Speaker of the House, and so many of his colleagues, are either abysmally ignorant of an aspect of constitutional law that’s directly related to their jobs, or that they’re just flat-out dishonest. Either way, they deserve every bit of political damage they suffer.

UPDATE: More from Prof. Rachel Barkow of NYU, interviewed in the WSJ:

What do you make of the arguments from members of Congress?

“They’re reading [the speech and debate clause] very broadly, more broadly than I think is even remotely justifiable,” she says. There have been other cases where members of Congress have been subjected to criminal process for things that take place outside of their legislative duties; Ms. Barkow says she doesn’t see any reason why a search warrant couldn’t be executed on a congressional office.

What about the argument that this FBI raid represents an extension of the power of the executive branch?
The FBI is an arm of the executive branch. But the warrant was approved through the courts, part of the judiciary branch. “It’s not unilateral executive action. It was done with approval of the judiciary in so far as they had to get a warrant,” Ms. Barkow says.

This is not an especially difficult question.