Akhil Reed Amar wrote in Slate William Jefferson and his congressional colleagues are crying foul about an executive-branch search of his Capitol-complex office. How would Thomas Jefferson and his colleagues—the Founding Fathers—have viewed the matter? Consider first what the framers wrote about congressional privileges in Article I, Section 6 of the Constitution:Senators and Representatives … shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The opening language here might initially seem promising for (William) Jefferson. The clause seems to broadly immunize Congress members from arrest when Congress is in session. If Jefferson can't even be arrested for various crimes, how can his premises be searched in a criminal investigation?
But on closer inspection, the clause does not insulate sitting Congress members from ordinary criminal arrest and prosecution. No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace"—and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes. Following Blackstone, the U.S. Supreme Court has read the catchall expansively in leading cases decided in 1908 and 1972. Thus, sitting congressmen enjoy no special immunity from arrests in ordinary criminal cases.
Precisely. Congress isn't above the law, and bribery isn't "speech or debate." And when they scream Separation of Powers, remember they feel they have the power to suponea material from the other two branches in their "oversight duties", and this was not just the Executive Branch: they had a warrent issued by the Judicial Branch
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