Replies

My only slight departure from Byron's assessment is the observation that Jefferson is not just getting fair treatment; he is getting extraordinary treatment. Suggestions to the contrary are ridiculous, and the claim that there is a separation-of-powers problem here is frivolous. The congressmen and others making it are conducting themselves abysmally. At a time when Americans' regard for congress is at an all-time low, why would anyone want to get behind such low-life criminality?

The Constitution defines the immunity of members of Congress in the speech and debate clause (Art. I, 6), providing that members "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." (Italics mine.)

That's it. They can be investigated and prosecuted just like anyone else, with two exceptions: (a) they presumptively may not be placed under arrest during a session of congress — although arrest is perfectly proper if a felony (or treason or breach of the peace) is involved; and (b) the evidence used to prosecute them cannot include anything contained in a speech or debate during a session. So the privilege against arrest is limited, and the privilege against being investigated is non-existent (anyone out there remember Abscam?).

As Byron relates, the executive branch has apparently made use of an extraordinary Chinese Wall procedure here, having agents unrelated to the investigation conduct the search of Jefferson's office "to ensure the prosecution team does not inadvertently review any potentially politically sensitive, non-responsive items in the office, or information that may fall within the purview of the Speech or Debate Clause privilege[.]"

That is kit-gloves overkill in the extreme. The speech and debate privilege means statments and materials from speeches or debates when congress is in session cannot be used as evidence in court against a member of congress. It does not mean that such statements and materials cannot properly be seen or heard by the investigators, or that if they are seen or heard the investigation is somehow tainted.

Most speech and debate in congress is public — the whole idea of the constitutional protection is to make certain that, since speech will be seen and heard, members will not shy away from saying what they honestly think out of fear of prosecution.

There is no such thing as a "politically sensitive" items privilege. Congressmen, moreover, have no more right to privacy in items that are beyond the scope of a search warrant than you and I do. There was no need to go these absurd lengths for Jefferson.

Yes, there is something offensive about this episode. But it is not the investigation. It is the audacity of public servants to claim a license to betray their public trust with impunity.