The constitutional clause at issue in the Menendez trial

The criminal trial of Senator Bob Menendez is well underway, raising a number of important constitutional questions on democratic representation, legislative-executive relations, and the rule of law.

A powerful figure in the Democratic Party, Bob Menendez is serving his second term as a senator from New Jersey as he faces trial for federal corruption and bribery charges. He is accused of accepting numerous gifts from donors in exchange for using the power of his office to influence the State Department, the Centers for Medicare and Medicaid Services, and the U.S. Customs and Border Patrol. Over the course of his trial, Menendez and his lawyers have raised a number of constitutional challenges, including a defense based on the Constitution’s “Speech and Debate” clause and the McDonnell standard for official government acts.

At the heart of the Menendez trial is the question of whether members of Congress can be sued for legislative acts they perform while in office. Article I, Section 6 of the Constitution states that, with the exception of treason, felony, and breach of the peace, members of Congress cannot be arrested for any speech they give in either House. The origins of the provision can be traced back to the Philadelphia Convention, where the Founders modeled the American Congress after the British Parliament. Like the British Parliament, Congress was given the same power to raise taxes, pass laws, and approve executive ministers. The “Speech or Debate” clause is derived from the English Common Law tradition of parliamentary immunity, which protected members of Parliament from prosecution by the English Crown.

Prior to the American Founding, it was common for English kings to imprison members of Parliament who were critical of their policies. Queen Elizabeth I regularly imprisoned members of the House of Commons who questioned her refusal to name an heir and the Duke of York famously arrested Thomas Thorpe, the Speaker of Parliament, on false charges of treason. To protect the sovereignty of the legislature, the English parliament passed the Parliamentary Privilege Act of 1770, which protected members of parliament from execution or arrest for speeches they gave in session.

The “Speech or Debate” clause was written into the American Constitution in the same vein. It prevents the executive from using the color of law to abuse members of Congress who disagree with him. To further protect the independence of the legislature, the Framers also included Article I, Section 5, which made Congress the sole judge of the qualifications of its members and gave Congress alone the power to expel a member once elected (with a two-thirds vote).

The challenge for the Supreme Court has been to draw the line between protected legislative acts and unprotected “political activity.” In Gravel v. United States (1972), the Court found that Senator Mike Gravel’s reading of parts of the classified “Pentagon Papers” on the floor of the Senate was constitutionally protected speech or debate, while his private arrangements to have them published by a book publisher was not. The Supreme Court has also held that the speech or debate clause prevents courts from investigating the motivations behind clearly legislative acts. Thus, in United States v. Johnson (1966), the Court found unanimously that the speech or debate clause protected speeches given on the floor of the House by a member of Congress in exchange for money. And in United States v. Heltoski (1979), the Court found that the speech or debate clause does not allow entering purely legislative acts into evidence at trial.

Of course, this immunity has limits. Members of Congress can still be prosecuted for violating the nation’s highest laws, especially if they are accused of committing treason or felony. The Court has been clear that the speech or debate clause is not a blank check for legislators to be criminals. Though they cannot be arrested for speeches or votes they give on the floor of Congress, they can still be prosecuted for illegal activities they pursue outside of it.

As the Court said in Hutchinson v. Proxmire, the speech or debate privilege was written to protect legislative independence, not supremacy. Any invocation of the clause that goes beyond what is needed to preserve that independence is an abuse of the law. It does not immunize every official act by members of Congress, only those that are an integral part of the legislative process. Thus, the federal court in the Eastern District of Pennsylvania did not find that the speech or debate clause protected Congressman Chaka Fattah’s racketeering and money-laundering schemes, even if he performed those while occupying a congressional seat.

In Senator Menendez’s case, a jury will be asked to determine whether he violated federal bribery and racketeering law by accepting gifts to lobby government officials for donors’ private interests. The challenge for prosecutors will be to show that the Senator’s actions satisfy the McDonell standard for official government acts, while also showing that those official acts are not protected by the speech or debate clause. This case will have major implications for federal bribery cases into the future.

Ugonna Eze is a Fellow for Constitutional Studies at the National Constitution Center.