Does the Constitution protect congressional staff caught in the crossfire when Congress investigates the Executive Branch? The short answer is yes − depending on the circumstances.
Here are the background facts.
Earlier, on March 11, 2014, Sen. Dianne FeinsteinDianne FeinsteinDems get it wrong: 'Originalism' is mainstream, even for liberal judges Human rights leaders warn against confirming Gorsuch Feinstein sees slipping support among California voters: poll MORE (D-Calif.), Chairman of the Senate Select Committee on Intelligence, gave a remarkable speech on the Senate floor about the committee’s investigation of the CIA Detention and Interrogation Program.
Feinstein focused on a crimes report filed by the CIA’s acting general counsel with the Department of Justice. The crimes report apparently includes allegations of illegal conduct by the committee staff investigating the CIA’s interrogation program. Feinstein said that she does not know the specifics of the criminal allegations against her staff. Nor has she been told whether a criminal investigation actually has been initiated.
The crimes report may deal with the Intelligence Committee staff’s access to and treatment of a document referred to as the Internal Panetta Review. The CIA’s Internal Panetta Review is significant. According to Feinstein, the Review corroborates certain negative findings about the CIA in the Intelligence Committee’s report of its investigation − findings that the CIA apparently disputes.
Feinstein asserts that the Intelligence Committee “need[ed] to preserve and protect the Internal Panetta Review” to ensure that the CIA did not destroy the document. She explained that committee staff transported a redacted, print portion of the Internal Panetta Review from the committee’s secure room at a CIA facility and safeguarded the document in the Hart Senate Office Building.
The senator also said that the committee staff who investigated the CIA are now “threatened with legal jeopardy” by a target of their investigation − the CIA’s acting general counsel, who made the crimes report to DOJ. It thus appears that the CIA is fighting back against Congress’s oversight by lodging criminal accusations against congressional staff.
Congressional staff are immune from prosecution, as long as they were acting within the legislative sphere. The Speech or Debate Clause, U.S. Constitution Article 1, Section 6, shields the legislature from prosecution by a hostile Executive Branch in many circumstances. Courts interpret the Speech or Debate Clause broadly and, when it applies, the privilege is absolute. The Supreme Court’s decision in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), shows that a congressional investigation, such as the Intelligence Committee’s inquiry into CIA conduct, is within the legislative sphere and thus protected. But non-legislative activities, such as preparing news releases or speeches on the stump, are not protected by the Speech or Debate Clause.
The Supreme Court held in Gravel v. United States, 408 U.S. 606 (1972), that members of Congress and their staff are “treated as one” for purposes of Speech or Debate Clause immunity. This means that the committee staff who are the subjects of the CIA’s crimes report are immune from prosecution to the extent that their actions would be protected if performed directly by Feinstein.
Here, a key question is whether or not the congressional staff were acting in the legislative sphere, or whether their challenged actions were non-legislative acts. Based on Feinstein’s version of the events, it seems likely that the congressional staff were acting within the legislative sphere, because they were carrying out an official congressional investigation. The proper business of the Senate Intelligence Committee is, after all, oversight of the intelligence community, including the CIA.
The Speech or Debate Clause also provides Members and staff with a testimonial privilege. Thus, neither Feinstein nor the congressional staff subject to the CIA’s crimes report may be compelled to testify about legislative acts or to produce documents relating to legislative acts. This bar against compelled disclosure applies equally in civil and criminal matters. Because the committee staff are protected by the Speech or Debate Clause testimonial privilege, it may be difficult to gather information needed to prosecute them or enter facts about their legislative actions into evidence.
However, the Speech or Debate Clause does not protect a member or staff from prosecution for a criminal act that is not part of the legislative process. In United States v. Brewster, 408 U.S. 501 (1972), Senator Brewster’s conviction for taking a bribe for an official act was upheld. The Court said that “[t]aking a bribe is, obviously, no part of the legislative process or function. . . .” The Court, straining a bit, concluded that no inquiry into a legislative act was necessary for conviction because taking the bribe was the crime, regardless of whether the Senator “fulfilled the alleged illegal bargain” by performing the act paid for. The Court added, however, that the Clause “precludes any showing of how [Brewster] acted, voted, or decided.”
In the immediate situation, it seems hard to contend that the way the Panetta Review was handled, as described by Feinstein, was not part of the legislative function. The document apparently was removed to, and secured in, the Hart Senate Office Building as part of the Intelligence Committee’s investigation into the CIA’s detention and interrogation tactics. It would be very difficult to prosecute the staff without inquiry into and evidence about the Intelligence Committee’s investigation.
In sum, the Speech or Debate Clause provides significant protection to the congressional staff investigating the CIA Detention and Interrogation Program. Given the separation of powers concerns at play reflected in Speech or Debate Clause immunity, it seems unlikely that the Justice Department will proceed with a prosecution absent strong evidence that congressional staff somehow acted outside the legislative sphere and in blatant violation of criminal law.
Hamilton is a partner at the international legal firm of Bingham McCutchen. He is a member of Bingham’s white collar practice and former assistant chief counsel to the Senate Watergate Committee. Anglin is a litigation associate at Bingham.