Stephanie’s Fresh Perspective

The Speech or Debate Clause

The Speech or Debate Clause seems to be making a comeback.  Recently, former Congressman Jefferson invoked it in an effort to have his indictment dismissed.  He was unsuccessful.  Now, Baltimore City Councilwoman Holton is relying on its protections in asking a Maryland state court to dismiss a bribery indictment pending against her.  She might have a better chance.

The idea behind the Speech or Debate Clause is that legislators should be free to exercise their best judgment without concern that they will be sued civilly or prosecuted criminally for their official acts.  Essentially, the government can’t use official legislative acts, such as votes or statements at legislative sessions, to charge a legislator with a crime.  Councilwoman Holton is arguing that if any of her charges were based on this type of official act or if the grand jury was asked to consider any of her official acts in returning the indictment, then the indictment has to be dismissed.

Bribery is a very difficult charge to prove, but if the State is going to prove it, it must do so without using acts protected by the Speech or Debate Clause.  And there are many such unprotected acts.  For instance, legislators help constituents make appointments with Government agencies and secure Government contracts, they prepare ‘newsletters’ to constituents and news releases, and they make speeches outside of the legislature.  Although these are entirely legitimate activities, they are political in nature rather than legislative.  Therefore, the State could use these political acts as evidence of bribery.  But official legislative acts cannot be used.

That’s why bribery is a difficult to charge to prove.  Prosecutors have to be able to prove that money was given in exchange for a vote, using evidence other than the vote itself.  For instance, if the government had a tape-recorded conversation of a councilperson agreeing to vote a particular way in exchange for money, the State could use the tape, because such a conversation is political in nature.  But the State can’t use the vote itself, which is legislative in nature.   

The indictment against Councilwoman Holton makes specific references to votes she made and reports she gave to the City Council.  Those facts appear to place her conduct right within the heart of the Speech or Debate Clause, and may spell trouble for some or all of the indictment.  Stay tuned . . .




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