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Archive of posts filed under the Speech or Debate category.

Virginia Supreme Court Takes on Speech or Debate

The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and [...]

Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?

A Third Circuit panel recently rejected Senator Menendez’s Speech or Debate appeal, thereby clearing the way for his corruption trial to proceed. United States v. Menendez, No. 15-3459 (3d Cir. July 29, 2016) (slip opinion). Menendez, it is reported, may seek further review from the full Third Circuit and/or file a petition for certiorari with the [...]

Update on SEC v. Ways & Means

Judge Gardephe has granted the House’s motion for a state pending appeal of his order enforcing the SEC’s administrative subpoenas to the House Ways & Means Committee and its former staffer. In addition to finding that the balance of hardships weighed in the House’s favor (which seems fair), the court found there to be a [...]

House Mulls Appeal of SEC Subpoena Decision

Judge Gardephe of the federal district court for the Southern District of New York has issued his long-awaited ruling in SEC v. Committee on Ways & Means, an enforcement action by the SEC to require the House committee and its former subcommittee staff director to comply with administrative subpoenas. The court rejected the House’s broadest [...]

Government Not Impressed by Menendez’s “Policy” Approach to Speech or Debate

The government has filed its brief in opposition to Senator Menendez’s Speech or Debate arguments. A fuller analysis will have to wait, but the arguments look to be pretty much as I expected. From the brief’s conclusion: Defendant Menendez’s broad, unprincipled interpretation of the Speech or Debate Clause is a blueprint for immunizing criminal activity [...]

Will Senator Menendez’s Speech or Debate Gambit Work?

Last week Senator Menendez’s legal team moved to dismiss all of the charges against him on the ground that they depend on evidence protected by the Speech or Debate Clause. The key issue is whether the Clause’s protection applies to certain meetings and communications between Menendez (and/or his staff) and executive branch officials, including Secretary [...]

Speech or Debate issues in the Menendez investigation

According to a sealed opinion inadvertently and briefly posted on the Third Circuit’s website, two aides to Senator Robert Menendez are refusing to answer certain grand jury questions based on the Speech or Debate privilege. The opinion is no longer available online, but this New Jersey Law Journal article summarizes the issue before the court. [...]

The Speech or Debate Clause and Protection of Informal Information Gathering

A couple months ago we discussed the question of whether informal information gathering is a legislative activity protected by the Speech or Debate Clause. As I noted at the time, there is case law suggesting that some informal information gathering is protected, but significant uncertainty as to how one defines the type of information gathering [...]

Senator Ervin on Congressional Discipline and Speech or Debate

I have previously explained that the Speech or Debate Clause does not protect members from discipline by their legislative body, up to and including expulsion. Since the subject arose again in the last couple of days (in the course of a Glenn Greenwald initiated thread on Twitter), it may be worth adverting to Senator Ervin’s [...]

Renzi Loses Coming and Going on Speech or Debate

As the Ninth Circuit helpfully explained yesterday (hat tip: Zoe Tillman) in affirming former congressman Rick Renzi’s conviction on various corruption charges, “Congressmen may write the law, but they are not above the law.” In doing so, the panel rejected two Speech or Debate arguments Renzi raised on appeal. (For Renzi’s prior unsuccessful trip to [...]