Are Senators and Legislators Immune from Prosecution?

The bribery scandal of Rep. Randy Terrill and former Democratic state Sen. Debbe Leftwich and thrust the argument of Speech and Debate clause into the headlines. Attorneys for a former state senator accused of felony bribery maintain their client is immune from prosecution because her activities as a legislator are protected under the state constitution.

That clause is part of Article V, Section 22, which reads as follows:

■Senators and representatives shall, except for treason, felony or breach of the peace, be privileged from arrest during the session of the legislature, and in going to and returning from the same, and for any speech or debate in either House, shall not be questioned in any other place.

Lawyers with the Oklahoma County District Attorney’s Office allege that Rep. Randy Terrill, R-Moore, offered Leftwich an $80,000 job with the Oklahoma Medical Examiner’s Office if she would not seek another term in the Senate. Bribery charges were filed against Leftwich and Terrill in December.

26 O.S. 16-108, one of the statutes under which Leftwich was charged, reads as follows:

■Any person who shall solicit or accept from another anything of value for withdrawing from any political contest as a candidate or nominee for any office at any election shall be deemed guilty of a felony.

In June of this year, the Oklahoma Court of Criminal Appeals denied a petition from Leftwich to have the case against her dismissed, affirming an April trial court ruling.

Leftwich’s attorney based the dismissal motion in part on the argument that the court lacks jurisdiction under the Speech or Debate Clause of the Oklahoma Constitution. However, in its order, the appeals court said the clause includes an express exception for felonies.

The Oklahoma Supreme Court in a 5 - 4 ruling on September 19 said it will not take up a case involving a former state senator accused of bribery so that the parties could "seek the appropriate relief in the Court of Criminal Appeals."

Article 1 Section 6 Clause 1 of the United States is similar in wording. "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."

The U.S. Supreme Court has gradually defined and redefined the Speech or Debate Clause in several cases over the years. The first case concerning the Speech and Debate Clause was Kilbourn v. Thompson 103 U.S. (13 Otto) 168 26 L. Ed. 377 (1880). The Court has interpreted the Speech or Debate Clause to mean that members of Congress and their aides are immune from prosecution for their "legislative acts." This does not mean that members of Congress and their aides may not be prosecuted. Rather evidence of legislative acts may not be used in a prosecution against a member of Congress or a congressional aide. This view has been upheld by a number of rulings since the 1880 case.