Skip to content
 

Foley’s legislative privilege

           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 Florida representative interrupted a House vote to engage in Internet sex with a high school student who had served as a congressional page and had been 18 for just six weeks at the time of the exchange.      

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 Jefferson case.

Leave a Reply