Here is an interesting question. Were Representative Mark Foley’s “naughty emails” to a former House page absolutely privileged under the Speech or Debate Clause of the Constitution? The question is suggested by articles in the last couple of days indicating that House lawyers have refused to give Florida law enforcement authorities access to Foley’s computers, contending that because the computers “may contain legislative information that is constitutionally privileged … and because Mr. Foley has not waived that privilege … we cannot simply give you access.” No graphic photos found in Foley e-mails – Boston.com
But Foley’s emails to the former page themselves contain “legislative information.” According to this ABC news story, The Blotter: House Lawyers Refuse to Turn Over Foley’s Computers,:
Instant messages reviewed by ABC News last October indicated the one-time
The message, according to its time stamp, was dated April 2003, at approximately 7 p.m. — the same time the House was voting on H.R. 1559, Emergency War Time supplemental appropriations.
Maf54: I miss you
Teen: ya me too
Maf54: we are still voting
Maf54: you miss me too
Maf54: ok..i better go vote..did you know you would have this effect on me
Teen: lol I guessed
Teen: ya go vote…I don’t want to keep you from doing our job
If Foley’s references to voting are enough to bring the emails within the protection of the Speech or Debate Clause (and the House would likely take the position that they were), does this mean that the emails would be privileged from discovery by law enforcement authorities and that the House would refuse to produce these emails if they were requested? Such would seem to be the implication of the absolute non-disclosure privilege advocated by the House and accepted by the DC Circuit in the