Fortunately for the U.S. Attorney and unfortunately for constitutional law experts, the retired judge selected to hear the Menendez case might be one of the weakest thinkers on the federal bench in New Jersey for constitutional issues. His decision last week to keep the case in NJ reveals the mind of a judge who thinks the case is really about a “crime.”
Most lawyers who struggle with the question about why the US Attorney brought such a weak case against a prominent United States Senator conclude that the case is about something bigger than Menendez. Some view it as a challenge to the U.S. Supreme Court on its decision in Citizen United. Some speculate that the case is the only way to remove a vocal opponent of President Barak’s Obama’s foreign policy of appeasement. Still others suggest that the indictment was brought to weaken protection afforded to Congress by the speech and debate clause which is essential to maintain the separation of powers between the legislative and executive branch of government.
The Constitution’s Speech or Debate Clause
Article 1, Section 6, Clause 1 of the U.S. Constitution states: “ …for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” It provides immunity from arrest to members of the Senate or House of Representatives (and their staff members) for things said or done during a speech or debate in Congress, attendance in Congress, or going to or from Congress (except for the most serious of charges like treason or some felonies). The intent is for lawmakers to be able to speak their minds without fear that the Executive Branch will use its authority to deter members of Congress from taking actions with which the President might disagree.
Dating back the English Bill of Rights of 1689, the privilege has been recognized as an important protection of the integrity of the legislature. As explained by Justice Harlan in United States v. Johnson: “The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the ‘practical security’ for ensuring the independence of the legislature.”
In the American governmental structure, the Speech or Debate Clause also solidifies the separation of powers that is so essential to our democracy. It also reflects the Founders desire to formally address the threat of one branch invading the authority of another. As James Madison wrote in Federalist No. 48:
It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.
The Speech or Debate Clause has remained relevant throughout U.S. history. In 1972, the U.S. Supreme Court clarified the extent of the privilege, holding that the privileges of the clause extended to Congressional aides, but was confined to legislative activities. The case, Gravel v. United States, resulted from Sen. Mike Gavel’s efforts to publish the now infamous Pentagon Papers, a study prepared by the Department of Defense that revealed the government had lied to the American people about the country’s involvement in Vietnam.
Today, the frequently overlooked provision of the U.S. Constitution again takes center stage. In his recent blog post for the Gatestone Institute, Harvard Law professor Alan Dershowitz highlighted its important in preserving Congressional oversight, arguing that that “Senators should not have to fear that the Executive Branch will unleash prosecutors to go after politicians who are critical of the administration.” He further writes: “A questionable prosecution against a disfavored legislator, based on campaign contributions from an old friend followed by actions that might benefit that friend, threatens this balance of power.”