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After Only 499 Years, Have We Forgotten Richard Strode?

Warning: If you are not deep in the weeds of Speech or Debate, this post may not be for you.

With regard to the question of whether the Speech or Debate Clause prohibits former Congressman Renzi’s prosecution in connection with his role in developing certain land exchange legislation, one English precedent stands out as particularly significant. As far as I recall, it has not been discussed in any of the briefs thus far, so it is worth noting as the petition for certiorari is prepared.

The case, which will be celebrating its half-a-millennium anniversary next year, is described thusly by the Supreme Court in footnote 13 of United States v. Johnson, 383 U.S. 169 (1966):

See, e. g., Strode’s Case, one of the earliest and most important English cases dealing with the privilege. In 1512, Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring “That suits, accusements, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.”

Strode’s case shows that a Member of Congress cannot be prosecuted for introducing or supporting a bill, even if he does so for corrupt reasons.

No doubt the prosecution would attempt to distinguish the Renzi case on the grounds that Renzi is not being prosecuted for introducing or supporting land exchange legislation, but for “extorting” private parties by refusing to support land exchange legislation unless it included property owned by his business associate. But this narrow reading of Strode’s case would seem to be inconsistent with Parliament’s broad declaration.

Could Strode have been prosecuted for “conspiring” with private interests in order to draft or introduce the tin mining legislation? Could he have been prosecuted if it were alleged that merely drafting, introducing or announcing his support for the tin mining legislation was a corrupt act? Surely the point of Parliament’s declaration was that Strode was free to draft, introduce and support whatever bill he liked, regardless of his alleged motives for doing so.

If I were Reid Weingarten, I would argue that the Justice Department is trying to overturn 500 years (by the time the case actually reaches the Supreme Court) of precedent on parliamentary independence.

5 Comments

  1. Shag from Brookline says:

    Let’s take Strode in stride – 500 years is a long, long time, with many differing circumstances from those days in Britain than exist today in America, including differing forms of governance. In any event, are there not House rules in place that address the issue? If not, why not?

  2. mstern says:

    I thought you were going to say “I knew Richard Strode, Richard Strode was a friend of mine, and Rick Renzi is no Richard Strode.”

    I don’t doubt that what Renzi (allegedly) did would be punishable as a violation of the House rules. The Speech or Debate Clause protects Members from being questioned “in any other Place” (ie, outside of the House or Senate), not from being held accountable within their legislative body.

  3. Shag from Brookline says:

    And we can expect the GOP controlled House to eat one of its own? Bon appetit!

  4. Shag from Brookline says:

    Is there a 4th Amendment fruit of the poisonous tree issue involved with the Renzi matter? The record of Renzi in the House is presumably public and thus not illegally obtained by prosecutors, while its use as evidence against Renzi may be violative of the Speech or Debate Clause. But what if that record leads to evidence of activities by Renzi in the nature of the possible (alleged) “conspiratorial” or “extorting” activities not directly related to Renzi’s legislative efforts? Or would Renzi’s legislative efforts provide protection regarding evidence of such activities?

  5. mstern says:

    Renzi made a fruit of the poisonous tree argument, saying that there needed to be a Kastigar-type hearing to determine whether the prosecution had made use of any legislative information obtained, for example, from wiretaps on his phone. Since the court found no violation of the privilege in the first place, I am not sure how specifically it addressed this argument, but I had the definite impression that it did not believe that derivative use would be prohibited even if there were a violation of the privilege.

    If a Member of Congress makes a speech on the floor and reveals some incriminating information, the speech is protected by privilege but I cannot imagine that the prosecution would be prohibited from using that public information to launch an investigation. If the information is obtained by violating the privilege, on the other hand, it’s a closer question which may turn on whether one thinks that the privilege is one of nondisclosure or simply nonuse.

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