In early August, the Justice Department closed its investigation into former Rep. Tom Feeney, R-Fla. This development wasn't just newsworthy because Feeney lost re-election — partly due to the cloud of investigation. It also came just weeks after a Washington, D.C., appellate court held that Feeney's statements to the House Ethics Committee were protected by the “Speech or Debate” privilege.
The Feeney decision illustrates why last summer may go down as a seminal season for Speech or Debate jurisprudence. Courts in several jurisdictions actively reviewed the parameters of this arcane constitutional privilege.
The Founders unanimously included the clause in the Constitution to serve as a shield against the intimidation of legislators by the executive branch or lawsuits from private citizens. It is rooted in the parliamentary privilege against coercion by the Crown contained in the English Bill of Rights. It provides members of Congress immunity from civil action and a privilege from being questioned about official matters.
The Justice Department recently argued that adhering to the text of the clause may thwart some criminal investigations. Yet all privileges have the effect of impeding criminal investigations. The government cannot simply water down a privilege because it may make its investigations more difficult.
The greatest example of this constitutional tension occurred in this summer's prosecution of former Rep. Bill Jefferson, D-La. Jefferson was convicted of most of the counts against him on Aug. 5 by a Virginia jury.
That the government was ultimately able to prove its case without using Speech or Debate material is a testament to the balance needed between the privilege and the interests of our justice system. Furthering this balance was the scrutiny the case received by two circuit courts.
While the D.C. Circuit wisely agreed with then-Minority Leader Nancy Pelosi, D-Calif., and then-Speaker Dennis Hastert's, R-Ill., argument that the FBI's raid of the congressman's office had been unconstitutional, the Fourth Circuit prudently agreed with the Justice Department's argument that a grand jury could hear from Jefferson's aides because discussion about congressional activities was not central to the case.
But there is a need for more clarity by the courts. In the Feeney case, the court evaluated two prior decisions, both involving speech in official proceedings. In the first case, the court had held that a senator's statements to the Senate Ethics Committee were protected because they involved official matters. In the second, the court had held that a congressman's statements to the House Ethics Committee were not because they involved private conduct.
Judge Brett Kavanaugh described this test as “fine slicing” and called on the full circuit to replace the arbitrary test with one that adheres to the Constitution's text. The Ninth Circuit should adopt this logic when it inevitably considers Arizona court decisions holding that negotiations then-Rep. Rick Renzi, R-Ariz., undertook as part of land exchange legislation were not protected because they amounted to nonlegislative acts.
Public office is a public trust. That no one is above the law is especially true of those who are serving in our legislatures. But the ability to investigate allegations of public corruption can't be limitless. Our elected legislators must have confidence in their ability to stand unintimidated by federal prosecutors about matters within the scope of their legislative duties.
The third branch is doing our democracy a service when it continues to clarify and respect this essential balance between the first two branches of our government. As the Supreme Court has said elsewhere, an uncertain privilege is little better than no privilege at all.
Elliot S. Berke is a former counsel to the Speaker of the House and the House Majority Leader, as well as a former federal prosecutor.