- The Washington Times - Wednesday, June 10, 2009

When Democrats made their case during the 2006 elections about why they should control Congress, they offered up Republican lawmakers like Mark Foley and Rick Renzi as examples of the “culture of corruption” they wanted to rid from Washington.

Mr. Foley of Florida resigned after being accused of sending inappropriate e-mails to a 16-year-old congressional page. Mr. Renzi of Arizona faced questions about land deals and accusations that he helped a defense contractor that employed his father.

Convinced that many members of Congress had lost their moral compass, voters sided with Democrats and thrust Republicans from power.

But when the limelight faded, the controversies took an unexpected twist: Democrats, now in control, sought to block or limit prosecutors from gathering certain evidence of corruption against members of Congress on constitutional grounds, complicating the criminal cases against the two Republicans.


House Speaker Nancy Pelosi of California and the Democratic leadership joined with top Republicans to continue a years-long tradition authorizing the House general counsel’s office to intervene in outside investigations of its members.

Through court filings, the bipartisan coalition sought the exclusion of evidence it said was obtained in violation of Article 1, Section 6, Clause 1 of the U.S. Constitution. The clause protects the legislative branch from meddling by the other two branches, declaring that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.”

Many see use of the clause as an effort by Congress to protect its own.

“I think the House as well as the Senate tries to overexpand that right,” said Washington lawyer Robert S. Bennett, a prominent white-collar defense lawyer who has served as special counsel to the Senate Select Committee on Ethics in several major cases.

Mr. Bennett said the clause should be used “narrowly” and not “to cover things up.”

“Congress is largely unaccountable. … Ethics enforcement in Congress is largely a joke,” he said.

Mrs. Pelosi’s office makes no apologies. There is “no incompatibility between adherence to the constitutional protections of the Speech or Debate Clause and the effective investigation and prosecution of members of Congress accused of wrongdoing,” her office told The Washington Times.

“On a bipartisan basis, we are negotiating with the Department of Justice to develop protocols that will meet the needs of law enforcement while respecting the separation of powers and the independence of the legislative branch,” Pelosi spokesman Nadeam Elshami said.

In a letter last year, House General Counsel Irving B. Nathan said the positions taken by his office “are not designed and have not had the effect of shielding any member from the criminal justice system,” noting that 35 members of Congress have been prosecuted in the past 30 years.

With at least a half dozen other members of Congress reported to be under investigation in recent years, House leaders and their attorneys haven’t talked about where else they may have intervened. Attorneys for the lawmakers refused to answer questions about congressional intervention, citing the secrecy requirements of grand jury proceedings.

The Speech or Debate clause was designed to protect members of Congress from intimidation by the executive or judiciary branches. It immunizes members from lawsuits and criminal charges for legislative actions and protects lawmakers and their staffs from having to testify about or turn over documents related to their legislative activity.

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