A little-noticed aspect of an appellate court decision could sharply limit investigations of members of Congress and hamper ongoing corruption probes, the Justice Department said this week in a motion seeking an emergency stay of the ruling.
The appellate court case in question was Jefferson's challenge to the legality of the FBI's search of his Capitol Hill offices in 2005. A three-judge panel ruled that papers seized by the FBI "exposed legislative material to the Executive and accordingly violated" the speech-or-debate clause. It said the FBI is barred from "a location where legislative materials [are] inevitably to be found," unless the member consents.
The speech-or-debate clause states that "for any speech or debate in either House, [members of Congress] shall not be questioned in any other place." In practice, it has limited the use of bribery statutes in the prosecution of lawmakers because legislative acts cannot be used as evidence. Prosecutors have instead pursued cases by uncovering corrupt agreements between lawmakers and those seeking their favors.
This is yet another case of people taking obscure portions of the Constitution which were originally intended to address 18th century concerns and twisting them to game the system for 21st century issues. The speech-or-debate clause was obviously of concern to the founders. Coming from a history in England where free speech was not only unprotected but also a frequent cause for imprisonment, they clearly wanted to ensure that elected representatives could speak freely. There were also concerns about the separation of powers, such that the Executive couldn't restrict or inhibit the speech of Congress.
None of this, however, seems to have been intended to allow elected representatives to shield themselves from proper investigation into illegal activities by proper authorities. Dollar Bill hid his tens of thousands in ill gotten gains in a freezer at his house, which may still come back to bite him. But under this ruling, it would seem that he could stack the money up on the coffee table in his Congressional offices and hand it out with impunity. Since the office is a place where "legislative materials are inevitably to be found" any Congress critter could, it seems, stock the place with bales of heroin and murder enemies, splattering the furniture with blood. If the FBI is forbidden to ever enter the offices to investigate anything, their offices become, in effect, a refuge for any manner of skulduggery they might care to engage in.
The article points out that Justice may appeal this to the Supreme Court. Let's hope they fare better there.