Category Archives: Speech or Debate Clause

“Judge rules Menendez’s prosecutors can’t show ‘critical’ evidence”


Jurors in Sen. Bob Menendez’s corruption case cannot see evidence prosecutors have called “critical” to part of their case, a federal judge ruled Friday.

The decision puts a hole in prosecutors’ ability to prove their central claim: that the New Jersey Democrat took bribes to help send billions of dollars of American military aid to Egypt.

U.S. District Court Judge Sidney Stein said prosecutors could not use evidence they hoped would show Egyptian officials were “frantic about not getting their money’s worth,” despite bribes Menendez allegedly took to help the country access billions of dollars of American military aid and arms.

Stein found the Constitution’s “speech or debate” clause does not allow prosecutors to show jurors the evidence. The clause grants members of Congress a form of immunity that is mostly impenetrable in investigations relating to the official duties of lawmakers, their aides or other congressional officials.

Coincidentally, Stein based his order on a 1979 Supreme Court case about another New Jersey Democrat accused of corruption. In that case, the high court ruled the speech or debate clause barred prosecutors from introducing certain evidence against Rep. Henry Helstoski, who had been accused of accepting bribes.

Share this:

Iowa Supreme Court unanimously finds legislative privilege extends to election law dispute

From the introduction of Justice Dana Oxley’s opinion for the Court in Smith v. Iowa District Court for Polk County:

In an effort to support its constitutional challenges to recent legislative changes to voting procedures, the League of Latin American Citizens of Iowa (LULAC) served subpoenas on several Iowa legislators, seeking discovery of communications the legislators had with third parties related to enactment of the legislation. The legislators, who were not parties to the underlying litigation, objected to the subpoenas, LULAC filed a motion to compel, and the district court granted the motion in part. The nonparty legislators filed a petition for writ of certiorari, arguing they are protected from compelled document production by a legislative privilege under the Iowa Constitution.

This certiorari proceeding presents our first opportunity to address whether the Iowa Constitution—which lacks a speech or debate clause—nonetheless supports a legislative privilege that protects Iowa legislators from compelled production of documents related to the passage of legislation. The district court concluded that the Iowa Constitution provides a privilege, but the privilege is conditional rather than absolute. It then concluded that compelling, competing interests—specifically LULAC’s claims that the legislation amounts to unconstitutional viewpoint discrimination—require piercing the privilege with respect to most of the documents sought in the underlying litigation.

We now hold that the Iowa Constitution contains a legislative privilege that protects legislators from compelled document production and that the privilege extends to communications with third parties where the communications relate directly to the legislative process of considering and enacting legislation. However, we need not, and therefore do not, decide whether the legislative privilege is absolute or qualified. The district court applied the wrong analysis when it relied on gerrymandering cases, where some courts hold that “judicial inquiry into legislative intent is specifically contemplated as part of the resolution of the core issue that such cases present.” Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 337 (E.D. Va. 2015). The district court should have considered the underlying claims—which challenge changes to the voting procedures as violating individual voters’ constitutional rights—through the lens of the Anderson-Burdick balancing test. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). That test balances the “character and magnitude” of the injury to the individual voters’ rights against the state’s justification for the changes, Anderson, 460 U.S. at 789, neither of which turn on legislative intent. Therefore, the individual legislators’ intent has little, if any, relevance to LULAC’s claims. Whether absolute or qualified, the legislative privilege protects the legislators from the requested document production.

Share this:

“Pence to fight special counsel subpoena on Trump’s 2020 election denial”


Mike Pence is preparing to resist a grand jury subpoena for testimony about former President Donald Trump’s push to overturn the 2020 election, according to two people familiar with the former vice president’s thinking.

Pence’s decision to challenge Special Counsel Jack Smith’s request has little to do with executive privilege, the people said. Rather, Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demands.

Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.

“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”

Share this:

Breaking: Supreme Court Declines to Hear Speech or Debate Case Issue Related to Pa. Gerrymandering Cases

From today’s order list:

17-1368 SCARNETI, JOSEPH B. V. AGRE, LOUIS, ET AL. The appeal is dismissed for want of jurisdiction.

Here were the questions presented in the jurisdictional statement:

1. Did the lower court err in holding that the “speech or debate” privilege is a qualified privilege when considered in connection with civil redistricting litigation, and that state legislators must disclose information regarding the crafting and drafting of redistricting legislation in discovery in such litigation?

2. If the “speech or debate” privilege is qualified when considered in connection with civil redistricting litigation, to what extent should that qualified privilege protect against the questioning of state legislators, and the disclosure of documents possessed by state legislators during discovery in such litigation?

Share this:

Would Any Prosecution of Sessions Be Barred by the Speech or Debate Clause?

Putting aside whether perjury could be proven against AG Sessions, there’s another possible hurdle: the Speech or Debate Clause, which gives members of Congress immunity from criminal prosecution for certain legislative acts, for example a speech on the Senate floor.

Would a sitting Senator testifying as an executive nominee get the benefit of the Speech or Debate Clause. Josh Chafetz suggests yes, though I’d like to see more analysis.

Share this:

“Menendez asks Supreme Court to hear case”

Josh Gerstein for Politico:

Sen. Bob Menendez is asking the Supreme Court to consider his argument that federal bribery charges he is facing impermissibly intrude into a legislative activity protected by the Constitution’s speech-or-debate clause.

In a petition submitted to the high court this week, attorneys for the New Jersey Democrat argue that a federal appeals court improperly insisted that he needed to prove his motives were “pure” when he took actions that benefited friend, campaign donor and ophthalmologist Salomon Melgen.

Notable that Paul Clement is on the brief, along with Abbe Lowell.

Share this:

“Robert Menendez Case Eligible for Appeal”


Senator Robert Menendez of New Jersey may appeal his indictment on corruption charges, based partly on his argument that some of the charges stem from routine legislative work protected by the Constitution.

The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled on Friday that Mr. Menendez, a Democrat, may also appeal over his defense’s argument regarding separation of powers. His lawyers argued it would be up to the Senate, not the courts, to punish any violations over disclosure rules stemming from the allegation that Mr. Menendez did not include flights on a co-defendant’s plane on a Senate financial disclosure report.

Mr. Menendez is charged with accepting campaign donations and gifts in exchange for political influence. He has pleaded not guilty and has said his actions were not specifically to benefit a co-defendant, Dr. Salomon Melgen. Dr. Melgen, a Florida ophthalmologist, has also pleaded not guilty.


Share this:

“N.J.’s Menendez says actions that helped friend were legitimate”

Lawyers for U.S. Sen. Robert Menendez argued in U.S. District Court in Newark that his actions on behalf of Dr. Salomon Melgen concerned legitimate policy questions and were not favors for a friend and campaign donor.

In filings submitted late Thursday, Menendez’s lawyers said his actions were protected by the Constitution’s “speech and debate clause,” which prevent lawmakers from being prosecuted for their legislative activities.

“The indictment violates the Speech or Debate Clause by charging that Senator Menendez took various legislative acts and alleging that Senator Menendez received various gifts, and leaving the prosecution to ask the jury to infer that there must have been some sort of corrupt agreement linking the gifts with those acts,” the senator’s lawyers wrote.

Share this: