MONTGOMERY COUNTY officials have issued a revised account of a March 25 incident involving Rep. Louis Stokes of Ohio. Police are still saying that they stopped Mr. Stokes after a car driven by him was spotted going down a six-lane highway the wrong way, making an illegal turn and running a red light; and they still report that Mr. Stokes failed three roadside sobriety tests. But in important respects, so far as Mr. Stokes' conduct is concerned, their new account differs from their original. They had said--and this newspaper had reported and commented on it-- that Mr. Stokes asked for congressional immunity. Now they say he did not assert any such congressional immunity, but that when he showed his congressional identification they believed they could not arrest him.
They were wrong. But why, in this day of increasing public demand for tough treatment of drunk drivers, did the police hesitate and back down? The problem begins with Article I, Section 6 of the Constitution, which provides that members of Congress "shall, in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses and in going to and coming from the same." A quick reading of this clause might lead police departments to believe that they have no choice but to release members of Congress without charge. But a study of the case law leads to the opposite conclusion. The Framers of the Constitution wanted to make sure that individuals could not harass elected federal officials by filing civil suits and having members arrested. Arrest in civil cases, such as bad debt or breach of contract, was common in Colonial times--though it is extremely rare today --and could have been used to prevent members from attending and voting at congressional sessions. But the courts have consistently limited the constitutional protection to such civil arrests. An 1800 case, United States v. Cooper, held that the clause does not apply to the service of arrest warrants; a 1934 case, Long v. Ansell, holds that it does not protect a congressman from service of process in a civil case, and a 1908 case, Williamson v. United States holds that the clause affords no protection from arrest in criminal cases.
In 1976, D.C. Police Chief Maurice Cullinane asked the Justice Department for an interpretation of Article I, Section 6. The department, citing the Williamson case, advised the police that no congressional immunity from arrest for crime was conferred by the Constitution. Since then, the general orders of the District police department have contained a clear statement that members of Congress and all other elected and appointed federal, state and local officials are subject to arrest for crime to the same extent as every other citizen. That's as it should be --no harassment, no unwarranted publicity, but most certainly no special privileges for drunk drivers. That should now be clear to all law enforcement officials in surrounding jurisdictions.
Finally, a word about diplomats. They do have immunity, a privilege accorded by international agreement, which also protects our diplomats abroad. But while diplomats cannot be arrested or prosecuted for crime, serious charges usually result in the accused being recalled to his home country. We have agreed to grant diplomatic immunity in order to get the same privilege for our own envoys in other countries. There is no need for such a bargain with members of Congress, and none has been made.