Stan Brand, a former House general counsel, said that the Justice Department may have “tainted their entire investigation” due to the raid. “They created a huge Constitutional issue now.”
Brand was referring specifically to the Speech or Debate Clause, which is found in Article 1, Section 6 of the Constitution.
The clause provides immunity to Members and staff from all actions “within the legislative sphere,” even if conduct claimed as privileged by Members and Senators could violate civil or criminal statutes if it took place elsewhere. In addition, the clause protects lawmakers from being compelled to give testimony or to turn over privileged documents.
“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,” the Supreme Court wrote in a 1972 case involving the Pentagon Papers. “It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.”
Other court rulings have stated that the Speech or Debate Clause “serves the additional function of reinforcing the separation of powers so deliberately established by our Founders.”
Lawmakers have had a mixed record in recent years when invoking the Speech or Debate privilege while being prosecuted in corruption cases.
For instance, former Rep. Joe McDade (R-Pa.) successfully stood on the privilege during a 1996 corruption probe. At the time, the House ethics committee refused to turn over records it had on McDade, and after a legal battle, the House was able to sustain its position in court. McDade was acquitted on bribery and racketeering charges.
But former Rep. James Traficant (D-0hio) was less fortunate. A federal judge refused to exclude several documents from Traficant’s 2002 trial that Traficant claimed were covered by Speech or Debate. Traficant was convicted on racketeering, bribery and tax evasion and sentenced to eight years in prison.