Mr. Jefferson, meet Mr. Jefferson.

The law, lawyers, and the court.
May 26 2006 5:04 PM

Mr. Jefferson, Meet Mr. Jefferson

What the framers would say about raids on congressional offices.

Congressman William Jefferson. Click image to expand.
Congressman William Jefferson

William Jefferson and his congressional colleagues are crying foul about an executive-branch search of his Capitol-complex office. How would Thomas Jefferson and his colleagues—the Founding Fathers—have viewed the matter?

Consider first what the framers wrote about congressional privileges in Article I, Section 6 of the Constitution:

Senators and Representatives … shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

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The opening language here might initially seem promising for (William) Jefferson. The clause seems to broadly immunize Congress members from arrest when Congress is in session. If Jefferson can't even be arrested for various crimes, how can his premises be searched in a criminal investigation?

But on closer inspection, the clause does not insulate sitting Congress members from ordinary criminal arrest and prosecution. No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace"—and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes. Following Blackstone, the U.S. Supreme Court has read the catchall expansively in leading cases decided in 1908and 1972.Thus, sitting congressmen enjoy no special immunity from arrests in ordinary criminal cases.

So, what did the Arrest Clause actually privilege? Basically, it insulated a sitting congressman from certain civil lawsuits brought by private plaintiffs seeking a court order that would physically "arrest" the defendant, with the effect (and perhaps purpose) of removing the congressman from the floor and thus disenfranchising his constituents. As Thomas Jefferson explained in his famed Manual of Parliamentary Practice: "When a representative is withdrawn from his seat by summons, the people, whom he represents, lose their voice in debate and vote." The theory was that one private litigant should not be allowed to undo the votes of thousands.

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.

Essentially, this is a clause about political expression. In 18th-century England, Parliament (whose name derives from the French verb parler, to speak) was a speech spot—a parley place, a venue in which free speech needed to prevail, and thus where no member was properly subject to civil or criminal prosecution for libel as a result of something he said on the floor. In the famous English Bill of Rights of 1689, this principle was codified in language that used the very words "freedom of speech." In the 1770s and 1780s, various state constitutions used similar language to affirm the right of legislators to speak freely.

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