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New Speech/Debate Clause case

UPDATE Friday a.m.  The case has now been docketed as 08-1059.


Former Rep. William J. Jefferson, facing trial this year in a high-profile corruption case, urged the Supreme Court on Wednesday to block any charges that were keyed in any way to evidence about his work as a lawmaker.  In a new petition (a docket number is not yet assigned), the nine-term Louisiana Democrat who lost his seat last year asked the Court to rule more broadly that federal courts have full power to look behind grand jury indictments to see if they relied on materials protected by the Constitution’s Speech or Debate Clause.

Jefferson is set to go on trial May 26 in Alexandria, Va., federal court, on a 16-count indictment.  His appeal said that, if the Justices agree to hear his case, he will seek to have his trial date postponed.  Lower courts refused to put the case on hold while Jefferson appealed to the Supreme Court.

His petition to the Supreme Court seeks to scuttle 14 of the 16 counts that accuse him of bribery.  The grand jury charged that he took part in multiple schemes, including bribery, to promote business sales and services to government officials in Africa.  The prosecutors’ theory was that Jefferson sold his influence as a legislator.

Defense lawyers contend that, based on their limited opportunity to examine grand jury testimony, evidence of the congressman’s legislative activities was presented to the grand jury.

“The transcripts,” according to the petition, “included testimony by legislative aides describing Mr. Jefferson’s legislative activities in Congress and, particularly, his leading role in the passage of a trade bill known as the African Growth and Opportunity Act.  The transcripts also included questioning by the prosecutors that directly linked this testimony to Mr. Jefferson’s influence with African leaders.”

The new petition in Jefferson v. U.S. is here.  A Fourth Circuit Court decision last Nov. 12 rejecting Jefferson’s challenge can be found here.  The Circuit Court ruled that judges generally are not allowed to go behind the face of a valid indictment to examine the evidence upon which a grand jury had relied.”

The petition raises this question: “Whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.”

An underlying issue in the case is whether two Supreme Court precedents, barring courts from inquiring whether grand jury charges were based on evidence protected by a privilege, would apply to situations other than those involving the Fourth and Fifth Amendment protections.  The Jefferson petition argues that the Speech or Debate Clause provides broader protection to members of Congress.

That Clause, the petition asserts, creates an “absolute privilege” against use of legislative activities as a basis for action against a lawmaker in Congress.   The two Supreme Court precedents on grand jury evidence — Costello v. U.S. in 1956 and U.S. v. Calandra in 1974 — should not apply when evidence is derived from protected legislative activity, the petition argues.

On this key point, it adds, the Fourth Circuit decision is in direct conflict with rulings by the 3rd, 11th and D.C. Circuit Courts.

If the Fourth ‘Circuit ruling stands, Jefferson’s lawyers contended, “a Member of Congress indicted in the Fourth Circuit would have no recourse and would be forced to stand trial even if the prosecution introduced evidence of his privileged legislative acts in the grand jury.”

“The Speech or Debate Clause,” the petition says, “is a unique constitutional provision that creates an absolute privilege for legislative activities within its scope.  It protects legislations not only from conviction based on legislative acts, but also from having to defend themselves as a result of those acts.”

The issue raised, the petition adds, has never been addressed squarely by the Supreme Court.  Under the Court’s rules, the Justice Department will have 30 days to respond to the petition, unless it seeks and obtains a delayed filing date.  Even if the Department does seek more time, it appears that the case could be considered by the Court before the May 26 trial date Jefferson now faces.