Author & Speaker

Speech or Debate Clause Madness

Two current members of Congress are under indictment yet serving the public good in the midst of our current financial/governmental meltdown. Republican Senator Ted Stevens of Alaska and Democratic Rep. William Jefferson of Louisiana both face corruption charges while they sit in Congress and run for re-election.
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Rep. William Jefferson (D-LA)
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Sen. Ted Stevens (R-AL)
The charges against the two men have considerable similarities, and some differences.
Stevens is charged with lying on official Senate forms when he failed to disclose some $250,000 of gifts from VECO Corp., an oilfield contractor that has been convicted of paying bribes to Alaska public officials. The former VECO CEO, Bill Allen, has pleaded guilty to paying off Stevens’ son, Ben, a state legislator, and will be the featured witness against the senator. Stevens is alleged to have helped VECO on several public matters.
Jefferson is charged with receiving hundreds of thousands of dollars in bribes in return for his help in setting up business ventures in West Africa. (You may recall that FBI agents found that the congressman stashed his cash in a freezer in his home, giving fresh vibrancy to the phrase “cold cash.”) Two former Jefferson aides have pleaded guilty to bribing a public official (Brent Pfeffer and Vernon Jackson) and are expected to testify against him.
The two legislators are following very different legal strategies, though. Jefferson is applying a principle I was taught in law practice: “No trial, no jail.” That is, fight hard on every point, appeal every point, and for heaven’s sake, don’t go to trial. They can’t send you to jail until the trial’s over. This week, his lawyer argued before the Fourth Circuit Court of Appeals that 14 of the 16 counts in Jefferson’s indictment should be thrown out as violating the “Speech and Debate Clause” of the Constitution, because they supposedly turn on Jefferson’s official duties.
The Speech and Debate Clause (Article 1, Section 6) states that “for any Speech or Debate in either House, [congressional representatives] shall not be questioned in any other Place.” This guarantee of legislative independence applies to virtually all of the official duties of the representatives, to shield them from harassment with criminal prosecution for performing their jobs. Accepting bribes, though, ordinarily is not included in the job description. The appeal seems likely to fail; even if it succeeds, Jefferson would face charges of obstruction of justice and violating the Foreign Corrupt Practices Act.
Sen. Stevens, in contrast, demanded a speedy trial when he was indicted in July, and finished picking his jury today!!! Opening arguments tomorrow. This high-risk strategy, which is being steered by uber-lawyer Brendan (“I am not a potted plant”) Sullivan of Williams & Connolly, is evidently designed to maximize the senator’s re-election chances in November. Facing a stiff political challenge from the Democratic mayor of Anchorage, the 84-year-old Stevens has chosen to gamble everything on one throw of the dice.
Sullivan’s an extremely good lawyer, and there are doubtless some problems with the prosecution’s case (there always are). But it’s hard to imagine a jury in the District of Columbia finding Sen. Stevens a very sympathetic figure.
Is this what the Framers intended? To have two senior legislators running for re-election while facing criminal charges?
Sort of. The Framers intended all of the underlying principles that lead to this embarrassing state of affairs: (i) that corrupt legislators be subject to prosecution for seeking private gain from abusing their offices, (ii) that they also enjoy the presumption of innocence, and (iii) that they be able to run for re-election so long as they are at liberty. Those are the theoretical points.
The reality triggers all of the fascination and revulsion of a train wreck.