What Does the Speech or Debate Clause Protect?

One product of the contretemps arising from the search of Louisiana Representative William Jefferson's office is the question about what protection the Constitution provides in Article I, Sec. 6, the Speech or Debate Clause.  The protection is different from most any other afforded an individual in a criminal prosecution, and this case may well renew a debate over the protection that has not been seen since the 1970s.  What does the Speech or Debate Clause protect: the individual Congressman by providing an immunity, the Legislative Branch, or is it an evidentiary privilege affecting what can be used in a criminal prosecution?  Resolution of that issue may be important for deciding the acceptability of the Department of Justice's proposal to have a "filter team" of government attorneys, working with Representative Jefferson's counsel, review all the documents and files seized to determine what is protected by the Constitution (see earlier post here).

The Supreme Court has described the Clause as creating an evidentiary privilege that prevents the government from using the legislative acts of a Congressman against that person in a proceeding.  In United States v. Gillock, 445 U.S. 360 (1980), the Supreme Court stated, "The Framers viewed the speech or debate privilege as fundamental to the system of checks and balances."  In that case, the Court rejected a state legislator's claim that a similar evidentiary privilege be recognized for state elected officials because it was unnecessary under the Constitution or principles of comity.  As a privilege, that would appear to make the documents held by a Congressman that relate to legislative acts protected, perhaps in the same way the attorney-client privilege protects the content of communications.  That would seem to support Representative Jefferson's claim that the Executive Branch should not be permitted to peruse records that it cannot use, and the search was therefore unconstitutional. 

In United States v. Helstoski, 442 U.S. 477 (1979), however, the Court viewed the Speech or Debate Clause as only limiting the evidence that can be used at trial, and not as a form of protection for the content of documents related to the legislative process.  The Court stated, "As to what restrictions the Clause places on the admission of evidence, our concern is not with the 'specificity' of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other 'legislative acts' such as utterances in committee hearings and reports."  This statement would appear to support permitting the DoJ to search for records, and only restrict the subsequent use at trial of any evidence that might relate to legislative acts.

In Gravel v. United States, 408 U.S. 606 (1972), a Senator argued that the Speech or Debate Clause could be the basis for quashing a grand jury subpoena to the Senator's aide for testimony related to a legislative act.  While the Court found that the conduct in question -- the publication of portions of the Pentagon Papers in the Congressional Record and arrangement for private publication of then-secret documents -- was not a legislative act subject to the Clause, it did not reject the possibility that a subpoena for such material could require a court to quash a subpoena.  The opinion describes the goal of the protection for the Legislative Branch:

The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer-either in terms of questions or in terms of defending himself from prosecution-for the events that occurred at the subcommittee meeting.

Which way does Gravel cut?  The separation of powers basis for the Clause would argue in favor of finding that a search can be as much of an intrusion on a co-equal branch as the filing of charges, and limiting the Constitutional protection to just a basis to dismiss charges or limit evidence at trial would not be much protection at all.  Interestingly, a claim to dismiss charges on Speech or Debate Clause grounds is one of only three pre-trial orders expressly recognized as permitting an immediate appeal by a defendant under the "collateral order" doctrine, similar to the protection from double jeopardy. That means the trial itself, and not just a conviction, is the real harm because the Congressman's legislative function has been interfered with by the Executive Branch.  Yet, Gravel reflects the language of the Clause, which states that "for any Speech or Debate in either House, they [members of Congress] shall not be questioned in any other Place."  A search is not a matter of questioning a Congressman, and the Supreme Court has held that the Fifth Amendment privilege against self-incrimination does not apply to searches because they do not involve any testimonial communication. 

Does a search simply fall outside the Speech or Debate Clause, so that the offer of a "filter team" by the DoJ is really simply an effort to maintain good public relations but not constitutionally required?  As has been noted, this is the first time a Congressman's office has been searched, so we are on very new ground.  Figuring out what the Speech and Debate Clause protects will be the first order of business if a resolution is not worked out during the 45-day cooling-off period ordered by the President.  (ph)