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Tuesday, November 22, 2005

The Scanlon Plea Hat Trick

I spent a few hours last night researching the "speech and debate clause" to explain how significant Scanlon's plea is to the prosecution of members of Congress involved in the Abramoff mess. And I woke up to find that Bloomberg has beaten me to the punch. (Darn! Hate it when that happens.)

But I'm going to outline the issue anyway, because it is worth the detail to understand how significant this plea deal is going to be for the DoJ in going after the whole of the conspiracy -- wherever it reaches into the halls of Congress. From Bloomberg's article:
Scanlon's testimony may allow the government to overcome a defense based on the "speech and debate'' clause of the Constitution, which protects lawmakers from being prosecuted for legislation they introduce or speeches they make in Congress, Cole and other experts said. Scanlon may be able to testify about deals between lawmakers and lobbyists; such quid pro quos wouldn't be protected by the Constitution.

"The speech and debate clause only prevents you from using a legislative act'' as evidence, Cole said. "The agreement is the crime.''
This is exactly right. The speech and debate clause is something that most folks never give a second thought, but it is a substantial protection for legislators -- and one that was a substantial block to the DoJ Public Integrity Unit until they got Scanlon (and perhaps Ney) to flip.

Having direct testimony of a potential quid pro quo arrangement between monies paid and legislation being proposed is an essential step, and one that likely has a large number of elected officials dealing with acid reflux and then some today.
"It is very tricky to prosecute a congressman,'' said Cole, now a Washington-based attorney for the law firm Bryan Cave LLP. "If a congressman gets on the floor of the Congress and says, "I'm introducing this bill, I think it stinks, but I'm getting paid $100,000 to do it,' that statement can't be used, even though it is in the Congressional Record.''

Scanlon's cooperation may signal that prosecutors have testimony that can overcome this obstacle. "If there is that explicit quid pro quo, that can be bribery,'' lawyer Reid Weingarten said last month. Weingarten, like Cole, served in the Justice Department's Public Integrity Section; he now is an attorney for the Washington-based firm Steptoe & Johnson LLP.

U.S. District Judge Ellen Segal Huvelle accepted the plea agreement yesterday that calls for Scanlon to help prosecutors make their case against Abramoff and investigate his contacts in and around Capitol Hill.

"They're using Scanlon to get everybody,'' said Melanie Sloan, a former federal prosecutor who now heads Citizens for Responsibility and Ethics in Washington, an advocacy group. "That's how it works. You keep rolling people.''
I like the sound of that. And that's how it works in most extensive conpiracy cases -- you roll one, and use that witness to roll the next guy...and on up the chain. The pressure mounts on everyone else involved to flip while there are still deals left to grab. The more people involved who cooperate, the bigger the incentive to cooperate for those remaining.

But what exactly is the "speech and debate clause" anyway?

The speech and debate clause is contained in the US Constitution, Article I, Section 6, Clause 1.
Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They 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.
In other words, members of Congress cannot be arrested in the regular performance of their legislative duties -- but they can be prosecuted if it can be shown that a crime was committed, such as bribery, in order to obtain legislation.

It is a very narrow exception, and one that can cause an enormous amount of difficulty for prosecutors. So much so, that an entire segment of the DoJ's Criminal Resource Manual is dedicated to the legal precedents on this issue.
While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527. The Supreme Court has declared that "past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause," including speeches in committee as well as those on the Floor of the Chamber, the Senator or Representative's votes, and his or her explanations for them. A somewhat wider latitude has been allowed insofar as the admissibility of activities that took place occurred prior to a legislative act. United States v. Helstoski, 442 U.S. 477, 489 (1979). However, the parameters of what constitutes a "legislative act" are quite broad, and can severely impair the ability of prosecutors to prove bribery and gratuity cases where the recipient is an elected Member of the Legislative Branch.
In other words, you have to be able to show that the criminal act was the catalyst for the legislation. As in, there was a quid pro quo deal in place that a member would produce some legislation in exchange for money, favors, etc. -- and thus the deal is the criminal act at issue, and not the legislation itself.

You can see how that sort of hairsplitting can be very difficult to show without someone on the inside providing the substantial details. Getting Scanlon to flip provides a hat trick for the Feds:
1. Scanlon gives the DoJ a connection to the inner workings of Abramoff's operation -- giving them Abramoff, Ralph Reed, and a lot of other money players, and a big window into the whole GOP money machine and College Republican Rethug cabal.

2. Scanlon also provides a window into Delay's operation, having worked for him for several years prior to leaving for a partnership with Abramoff. This gives the DoJ a better look inside Delay's KStreet operations and scheming from someone who would have seen it from the inside.

3. And Scanlon is the breach of the "speech and debate clause" firewall -- providing evidence of deals before legislation was introduced. This is vital for the DoJ, and has clearly rattled Ney enough that he's already talking with them.
With the number of members of Congress potentially involved in this mess, if one of their own has started talking, along with Scanlon, then the DoJ can expect a parade of others. One thing you can count on is a politician's desire to save his or her own hide and political power base above everything else. (At least in most cases, anyway.)

Quite a hat trick, I'd say. Pass the popcorn.

For more on the speech and debate clause:

-- Findlaw's Annotations provide a good case law reference.

-- The DoJ's Criminal Resource Manual provides some great analysis on what the DoJ has to consider.

UPDATE: More on the Scanlon plea details from TalkLeft.