Who Should Read The Constitution?

All this uproar over the search of William Jefferson’s Congressional office is really nothing more than members of Congress trying to assert something that does not exist, at least not in this context. The members who are upset at the search of the office talk about a separation of powers and now Hastert is talking about the privilege of speech and debate. He and many others are trying to claim that this was somehow violated. True, nothing against Jefferson deals with speech or debate but those ideas were extended to cover acts while in committee and several other things. The important thing to remember is that members of Congress are protected from prosecution for results of their actions when their actions are part of the normal legislative process. This idea seems to have escaped them and they are coming unhinged (members of both parties).

“When I raise my right hand and swear to uphold the Constitution of the United States, I mean it,” Boehner said, referring to the oath members take at the beginning of each Congress. “[Justice Department employees] take the same oath, so somebody better start reading the Constitution down there.”

Perhaps the Majority leader should read the Constitution. He and all the others who are making a big deal of this should read the Constitution and the interpretations of the clauses and how this has been viewed as part of case law. You see, the fact is William Jefferson was under investigation for taking bribes. Though we now know that taking bribes is more of a normal legislative process than we want, it is nonetheless, illegal. The justice department executed a search warrant to get information in connection to illegal activity. They did not search for items related to speech, debate, committee actions or any other item that is associated with the normal legislative process. They had a warrant to get items specifically associated with criminal activity. Here is an interesting portion of the interpretation of speech and debate clause of the Constitution. Keep in mind, the clause is designed to protect members from legal proceedings associated with the normal legislative process:

However, in United States v. Brewster, 399 while continuing to assert that the clause ”must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,” 400 the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ”influenced in his performance of official acts in respect to his action, vote, and decision” on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ”Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman’s influence with the Executive Branch.” 401 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution. 402 (emphasis added)

From this passage, one can see that speech and debate clause of the Constitution clearly does not provide any protections to members of Congress who have been accused of committing a crime that (and not an accusation based on a normal legislative function). Ironically, the case cited above deals with bribery which is exactly what William Jefferson, Democrat Louisiana, is accused of. If Jefferson were being sued for voting on a bill that led to someone getting injured or if he were part of a committee that was making an unpopular decision, he would be immune from prosecution (and one would suppose the acts necessary to secure an indictment, like searching for evidence). Here is what the Find Law site says about the speech and debate clause:

The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” 384

The protection of this clause is not limited to words spoken in debate. ”Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.”’ 385 Thus, so long as legislators are ”acting in the sphere of legitimate legislative activity,” they are ”protected not only from the consequence of litigation’s results but also from the burden of defending themselves.”

Notice that the immunities are not for the personal, private benefit of members and that they must be acting in the sphere of legitimate legislative activity. There is no way in hell that what Jefferson is accused of was part of the legitimate legislative activity.

So it is time for the members of Congress to go read the Constitution and research it like I did with the case law. They will then understand that they have no issue here. Perhaps we should be worried that a bunch of lawyers do not know this. Or, even more alarming, maybe they are so use to bribes and other crimes they actually believe that Jefferson was conducting legitimate legislative business. In any event, they will lose this when it goes to the Supreme Court.

Source 1: The Hill

Source 2: Find Law

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[tags]Constitution, speech and debate clause, separation of powers, Congress, Hastert, William Jefferson[/tags]



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