'Speech or debate' clause invoked in investigations of House members

A Texas jury found Tom DeLay (R), former House majority leader, guilty of money laundering Nov. 24.
Washington Post Staff Writers
Monday, January 17, 2011; 12:19 AM

A constitutional clash over whether House members are immune from many forms of Justice Department scrutiny has helped derail or slow several recent corruption investigations of lawmakers, according to court documents and sources.

At issue is a provision in the Constitution known as the "speech or debate" clause, which shields legislative work from executive branch interference. House members have increasingly asserted the privilege in corruption probes, often citing a 2007 court ruling that said FBI agents violated the Constitution when they searched the office of then-Rep. William J. Jefferson (D-La.).

The Justice Department warned at the time that the court decision would "seriously and perhaps even fatally" undermine congressional corruption probes by limiting the FBI's ability to search for evidence and use wiretaps.

Since then, speech or debate challenges have killed an investigation of former representative Tom Feeney (R-Fla.), hampered probes of Rep. Peter J. Visclosky (D-Ind.) and former representative John T. Doolittle (R-Calif.), and slowed a pending corruption case against former representative Rick Renzi (R-Ariz.), sources familiar with those inquiries said.

The widening assertions of criminal immunity have drawn little notice or controversy on Capitol Hill. In fact, the challenges have produced rare bipartisan agreement: The incoming and outgoing House leaders, for example, have jointly cited the constitutional clause to challenge much of the indictment of Renzi, who was extensively wiretapped. He is charged with attempting to benefit financially from a land deal. A brief filed by House lawyers compares Justice Department tactics in the case to illicit wiretapping under former FBI director J. Edgar Hoover.

House lawyers, who have aggressively countered the Justice Department in a number of investigations, have tried for two years to get the Obama administration to agree to limitations in Capitol Hill searches. But sources familiar with the negotiations said the talks broke down in the fall.

The speech or debate clause derives from 17th-century English law and says that "for any speech or debate in either House, (members of Congress) shall not be questioned in any other place." Until recently, courts had interpreted the passage narrowly.

"Bringing cases now because of the state of affairs of speech or debate makes these cases much more difficult," said Lanny A. Breuer, the assistant attorney general who oversees the Justice Department's Public Integrity Section. But he said that the provision "is not a roadblock. If you're corrupt, we're going to look at you, and we're going to prosecute you aggressively."

In all, the government has abandoned without filing charges at least seven investigations of current or former members of Congress since President Obama took office, many in recent months. They include the inquiries involving Feeney and Doolittle and others that ended for reasons apparently unrelated to speech or debate.

The other dropped investigations were examining Sen. John Ensign (R-Nev.), Rep. Don Young (R-Alaska), Rep. Jerry Lewis (R-Calif.), former representative Alan B. Mollohan (D-W.Va) and former House majority leader Tom DeLay (R-Tex.). Although the federal probe of DeLay was dropped, he was sentenced last week to three years in prison in a separate, state money-laundering case.

Law enforcement officials declined to comment on specific cases but said probes were dropped for a variety of reasons. They cited other court rulings, statutes of limitation and a review by new Justice Department officials who decided that some cases were not progressing.

But lawyers familiar with the issue said speech or debate concerns come up in virtually every congressional probe because many involve legislative acts, such as whether the lawmaker obtained earmarks in exchange for campaign contributions.

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