Let's first ask the question if it is just that a congressperson can make statements that are immune from prosecution simply because they originate from a person in congressional office.
It is legal, because it is constitutional. Yet, there are limitations.
They 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.
It appears to me in reading the above, that they are not immune if they have committed treason, felony, or breach of the peace.
Next,it appears that for speech or debate IN EITHER HOUSE, they are immune from questioning.
They can't commit crimes and speech that deals with their duties is immune.
To me, the conclusion is inescapable. If Murtha is immune for his pre-trial conviction of the Haditha Marines as murderers, then his duties include the trials of US service members. If that is so, if these trials are his duty, then he MUST BE a source from which Unlawful Command Influence can flow.
If the trials of service members are NOT his duty, then he should be prosecutable for maligning these Vets.
They can't have it both ways. Murtha's comments are either illegal or they constitute meddling in the trials, unlawful command influence.
Very good points, xzins. The reasoning behind why the appeals court upheld Murtha's Westfall Act certification is summarized in this article,
Murtha's immunity claim upheld in defamation suit
............"Drawing on Council on Am. Islamic Relations, Inc. v. Ballenger, in which the dismissal of another defamation suit against a congressman was upheld, Edwards wrote that "the underlying conduct –
interviews with the media about the pressures on American troops in the ongoing Iraq war – is unquestionably of the kind that Congressman Murtha was employed to perform as a Member of Congress.""...........................
Murtha called these Marines cold-blooded murderes and claimed they were not involved in a firefight. He did speak about the pressures on the American troops but only after libeling these specific Marines and pointing out how their conduct would be prosecutable under the UCMJ.
Imagine if I were under investigation for running over my neighbor. I contend that he was standing in my driveway, there was black ice, and I just couldn't stop. Murtha comes out and says, "I know Girlene ran over her neighbor, intentionally. In fact the investigation will show that she never hit her brakes, she accelerated, then backed up over him. It was all due to the pressure of the economy. I tell you, it was the pressure!"
Now Murtha has just defamed me personally. He has claimed personal knowledge of the "facts". The investigation is still ongoing, but unfortunately, he holds the pursestrings over the local law enforcement's and prosecuting attorney's budgets. Should his personal attack be excused because he came up with some insane reason (the pressures of the economy) for his alleged accusation? Absolutely not.
In fact, he has made false claims, he has inserted himself in an investigatory process, the judicial process, and has libeled my good name. He has severely limited my presumption of innocence throughout the process.
Oh, and after several years, several hundreds of thousands of dollars trying to defend myself, still awaiting my day in court, the local prosecutor gives him a Distinguished Service Award for his help in the community. If that doesn't stink to high heaven of Undue Influence in my judicial process, I don't know what would.
The appeals court gave him cover using his inane reason, the pressures of the war, for his outrageuos comments. The appeals court judges should be ashamed.