[Posted November 12, 2008] Constitutional scholars, court watchers, and political junkies alike will scour today’s Fourth Circuit ruling in US v. Jefferson, involving an appeal by US Rep. William J. Jefferson of Louisiana. The Congressman has been indicted for conspiracy and fourteen related offenses, most including allegations of bribery, wire fraud, or money laundering. He moved to dismiss the indictment, claiming that the grand jury had received testimony that violated the Speech or Debate Clause of the Constitution. The district court denied his motion, and the Fourth Circuit agreed to consider the question under the collateral order doctrine, which permits interlocutory appeals in very limited circumstances. One of those circumstances is a Speech or Debate Clause claim by a member of Congress.

For everybody except the con law scholars, who already know this, the Clause is contained in Article 1, section 6 of the Constitution. It provides that “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place.” Well, that may be what it says, but what it really means, according to today’s ruling, is that members of Congress get “absolute immunity for their legislative activities.” This immunity, however, comes with limits; it only applies to matters involving truly legislative acts, and doesn’t cover matters that are merely incidental to legislative affairs. Most relevant to today’s inquiry, it doesn’t immunize a member of Congress from taking a bribe, which, the US Supreme Court fortunately has ruled, never constitutes a legislative act.

Fundamentally, this ruling probably could have been concluded by the application of a simple doctrine – the receipt by a grand jury of otherwise objectionable materials does not vitiate an indictment. The court today cites caselaw holding that the exclusionary rule doesn’t apply to grand jury proceedings; nor are Fifth Amendment rights implicated. Even perjured testimony presented to the grand jury won’t result in dismissal. I suspect that that’s because an indictment is only an accusation; no one is put into jeopardy at this stage. (If this evidence had been presented at trial, we would be having a very different cyber-conversation right now.) The court even cites a 1969 case in which it had rejected a similar request by a congressman who claimed that the grand jury had received privileged materials. The court had ruled against the congressman there because of prior rulings “that severely restrict any judicial inquiry into grand jury matters.” Today, the Fourth Circuit takes the same analytical path and affirms the district court’s denial of the motion to dismiss the indictment. As a result, the case will go on in the Eastern District of Virginia.

Today’s opinion goes beyond this narrow ruling, noting that many rights accorded in criminal trials have no application here. For example, the exclusionary rule doesn’t apply in grand jury proceedings; neither are Fifth Amendment rights implicated. Even perjured testimony presented to the grand jury won’t require dismissal of the indictment. . The court reviews and approves of the district court’s limited in camera review of some of the grand jury materials. It also affirms the district court’s refusal to require the prosecution to cough up even more grand jury transcripts. The ruling today will be useful to appellate lawyers seeking guidance on the narrow collateral order doctrine. Still, I sense that but for the identity of the defendant, this one would have been unpublished; the issues are vitally important, of course, but today’s ruling appears to me to break no new legal ground. Sometimes, it seems, who you are is just as important as how novel your lawyers’ arguments are.