MORE ON CONGRESS AND THE SEPARATION OF POWERS: What’s frustrating in these discussions is the failure to distinguish between what the law should be in somebody’s opinion, and what it actually is, based on the Constitution and the caselaw. This entry on Congressional immunity from Jerry Pournelle — a smart guy, but no lawyer — is a good example:

Just as each House is the judge of the qualification of its members, each House is responsible for enforcement of ethics and criminal actions of members. The Houses have sufficient authority to do as they will in those cases.

When you bring the executive power into direct enforcement against sitting Members of either house of Congress, you end the separation of powers. It is easy for the executive to fake ‘evidence’ if it chooses. Once the executive power can intimidate sitting Members of Congress, you have an entirely different kind of government.

Now it is required that the Houses inquire into the criminal actions of Members. But that is done by their own agents, or at the request of the Speaker or President pro tem; not by the executive authority.

Now you may think that this is a good idea — I don’t, but Pournelle apparently does — but it is not now, nor has it ever been, the law. In fact, with the sole exception of impeachment (which doesn’t run against members of Congress), the Congress cannot investigate or try offenses, and impeachment is carefully distinguished from criminal prosecution in the Constitution. The Constitution’s prohibition of Bills of Attainder, in fact, explicitly forbids Congress dealing with criminal matters.

A house of Congress can also refuse to seat members it judges not properly elected, and expel members for misbehavior — but even then it’s not immune from outside review, as Powell v. McCormack makes clear. (And note that when a member is expelled, it’s generally after criminal conviction not the result of independent Congressional investigation). The autonomy of Congress extends only to legislative business: Congress could, if it chose, let a convicted Senator or Representative continue to vote and participate in Congressional business from a jail cell, but the Speech and Debate Clause provides no generalized immunity from law enforcement, which is an executive function. It’s just not true that, as Pournelle claims, “Members of Congress and Senators enjoy many of the immunities of the old Roman Tribunes of the People.” At least, not unless “many” means “a slight tinge.”

I don’t know why this, which is and always has been the law, seems so hard for some people to grasp. It’s true, of course, that things are done differently elsewhere: The Russian Duma has immunity from prosecution, for example. But that’s not how it’s done here. And I thought that we weren’t supposed to get our constitutional law from foreign jurisdictions?

There’s a good oped on how unhappy many members of Congress are with the notion of accountability and how anxious they are for special status, by Prof. Bob Turner, in today’s Wall Street Journal. It’s subscription-only, but here’s an excerpt:

Put simply, only Congress can inquire into the motives or content of votes, speeches or other official legislative acts.

But as the Supreme Court observed in the 1972 case of United States v. Brewster, the clause was never intended to immunize corrupt legislators who violate felony bribery statutes — laws that have expressly applied to members of Congress for more than 150 years. In Brewster, the court noted the clause was not written “to make Members of Congress super-citizens, immune from criminal responsibility,” adding: “Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator.”

Such behavior is therefore not protected by the Constitution. The purpose of the Speech or Debate Clause was to protect the integrity of the legislative process, and the Court noted that bribery, “perhaps even more than Executive power,” would “gravely undermine legislative integrity and defeat the right of the public to honest representation.”

A dozen years ago, I testified before the House Committee on Administration on this same basic issue. Newt Gingrich and other reformers were trying to bring Congress under the same ethics laws it had imposed upon the rest of the country, and some indignant legislators seemed confident that the laws were not supposed to apply to them. The hearing was held in a small room in a part of the Capitol Building off-limits to the public, with exactly enough chairs for members, staff and the three witnesses.

Two members of the public who managed to make their way to the room were turned away on the grounds that there was “no room” for public observers.

Critics of the Gingrich proposal did not hear what they wanted. Some seemed genuinely shocked when I informed them that, in Federalist No. 57, James Madison noted one of the constraints in the Constitution to prevent legislators from enacting “oppressive measures” was that “they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”

It is increasingly rare to find a spirit of bipartisanship in Congress these days. So a display of the spirit would have been a good thing to see — especially in a time of war — but for the fact that the issue now uniting Republican and Democratic leaders is an outrageous assertion that members of Congress are above the law, and that the Constitution immunizes legislators who betray their public trust in return for bribes from investigation by the executive branch.

In light of the attitudes held by so many of our legislators, it is no wonder three times as many Americans disapprove of Congress’s job-performance as approve, according to last week’s Gallup Poll. Those are Congress’s lowest numbers since the Democrats were last in power a dozen years ago.

Congress probably has the power, constitutionally, to immunize its members from prosecution while in office. Such legislation would be immensely unpopular, of course, and would cause a lot of people to lose reelection: “Vote for me — I’m in favor of immunity for corrupt members of Congress!” isn’t much of a slogan.

That’s why members of Congress are making a bogus Constitutional argument instead of using their undisputed legislative powers: To avoid the very kind of legislative responsibility to the voters that the Constitution, and separation of powers, places squarely in their laps. Such behavior is reminiscent of what Bill Clinton did in Clinton v. Jones, and I don’t recall many of the Republicans who are taking a pro-immunity position now endorsing Clinton’s approach then.