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Senator Stevens and the Strange Evolution of Speech or Debate

Yesterday was the release date for Henry Schuelke’s report on misconduct in the prosecution of the late Senator Ted Stevens. The report, which I have only skimmed, is available here.  In addition, Judge Sullivan’s opinion ordering the public release of the report may be read here. Judge Sullivan summarizes the case for release by noting:

Mr. Schuelke’s Report chronicles significant prosecutorial misconduct in a highly publicized investigation and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate.

One might think that the Speech or Debate Clause would have a role in preventing this type of prosecution, but, for reasons I discussed at the time, it was of little use to Senator Stevens.

On the other hand, in another Speech or Debate Clause case, currently pending in the same court, the defendant has proved to be much more fortunate. Howard v. Office of the Chief Administrative Officer is an employment discrimination case brought by a former employee of the CAO’s office, who alleged that she was discriminated against based on race and retaliated against for engaging in activity protected under the Congressional Accountability Act.

The question in the employment discrimination case is simply whether Howard was fired for not doing her job, as the CAO contends, or for the illegal reasons alleged by the employee. But because Howard’s job involved “legislative activities” (she prepared budget analyses that the CAO would submit to the Appropriations Committee for use in preparing the legislative appropriations bill), Judge Kennedy held that a court could not inquire into the reasons for her termination without violating the Speech or Debate Clause. Although the court acknowledged Howard’s somewhat tangential relationship to the legislative process, it found “there is not a sufficient basis in precedent to conclude that a task is non-legislative merely because it is performed by staff who are several steps removed from the Members themselves.”

If the purpose of Speech or Debate is to protect “the independence of the legislative branch from intimidation and interference,” as Judge Kennedy wrote, one would think it much more relevant to the Stevens prosecution than to the Howard case. But the courts have struggled to draw the line between “legislative activities” and “non-legislative activities” without giving much thought, it would seem, to whether the results make any sense.

As the court remarked in Jewish War Veterans, Inc. v. Gates, 506 F.Supp.2d 30, 57 (D.D.C. 2007), “[i]s hard enough to draw the crucial distinction between legislative and non-legislative acts, despite the existence of four decades of Supreme Court and D.C. Circuit case law to provide guidance.” True enough, though perhaps more true if “despite” were replaced by “due to.”

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