Don’t Tread on My Legislative Privilege

Tongue implanted in cheek, David congratulates Congress for finally finding an illegal exercise of executive power to condemn: an FBI raid on Rep. Jefferson’s offices. However, congrats may be premature, because it’s not entirely clear whether the raid is illegal.

(Usual warning: Lengthy lawyer parsing follows. Proceed at own risk. Short version: there are some good arguments that the FBI raid is illegal, but the case law is far from clear on this point.)

The Speech and Debate Clause provides:

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

Jefferson is under investigation for bribery. Congress itself has expressly made it a crime for members of Congress to accept bribes (18 U.S.C. s. 201). The Supreme Court has held (in United States v. Johnston, 383 U.S. 169 (1966)) that the Speech and Debate Clause does not absolutely immunize members of Congress from prosecution under a valid bribery statute (enacted, remember, by Congress).

To be sure, the Court held that some acts are “immune” from prosecutorial snooping even under a valid bribery statute—that is, they cannot constitute part of the evidence on which the prosecution relies. But, the Supreme Court has held this immunity applies only to the following: (1) “legislative acts”—those generally done in the process of enacting legislation” (United States v. Brewster, 408 U.S. 501, 514 (1971), which includes making speeches on the floor of a House of Congress or in committee, voting on the floor or in committee, contributing to reports entered into the legislative record; (2) other acts that are “integral” to deliberation connected to legislative acts. (Gravel v. United States, 408 U.S. 606, 625 (1972)).

That means a host of legislative business unrelated to enactment of specific legislation—from petitions to agencies on behalf of constituents, to ordinary constituent meetings, to speeches in the home district, at Washington galas, or what have you—are not privileged “legislative acts” and therefore can serve as a basis for prosecution. That also means preparation that goes into these sorts of activities also isn’t privileged. The upshot: many papers and effects contained in Jefferson’s office might be searchable by federal investigators pursuant to a valid warrant. (Caveat: I haven’t pursed the allegations against Jefferson).

Assuming they are searchable, that doesn’t settle the conditions on executive entry onto the physical grounds of Congress, on which these papers are located. The privilege appears to attach to acts, not places. Hence the grounds of Congress themselves aren’t privileged. And the Constitution doesn’t tell us the conditions attached to executive entry into the Houses of Congress, pursuant to a valid warrant.

I haven’t yet seen any recent cases on this point, although I confess I haven’t done much searching. In ordinary Fourth Amendment law, searches of homes, for example, are subject to different rules than searches of cars or searches of persons on the street. For example, police must knock and announce themselves prior to executing a valid search warrant for a domicile. It seems reasonable that some restrictions on entry should also apply when police are seaking evidence related to non-legislative acts on the grounds of (the “home” of) Congress.

That’s consistent with the cases on legislative privilege: Arguably, for example, Congress’s institutional control over the physical integrity of the grounds of Congress is essential to legislative deliberation. Surely, for example, unannounced raids or, say, the fear of unknown FBI bugs and wiretaps could chill legislative deliberation. These concerns suggest the legislative privilege requires an analogue to the knock-and-announce rule. For example, perhaps executive officers should notify House or Senate leadership and Capitol police of intent to execute a valid search warrant prior to entering Capitol grounds. Since separation of powers concerns come into play, there may be an argument that more should be required than would be required in an ordinary domicile search: perhaps, for example, congressional leadership may require executive officers to be accompanied by Capitol police, at least absent exigent circumstances.

I’m not sure whether it would require even more than this (for example, require Captiol police themselves to execute the search). Arguably, participation of Capitol police may be essential to the institutional integrity of Congress and therefore to legislative deliberation, but exclusive congressional control over all aspects of investigation on Capitol grounds isn’t. And, after all, the Framers—by exempting certain crimes from the privilege of arrest—clearly intended to balance institutional integrity of Congress with the larger principle that no branch is above the law and its offices.