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The Arrest Clause:

Reader James Hobson passes along a thought from the Sun Valley Idaho Blog:

If [Senator Craig] had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator’s arrest and guilty plea will have to be vacated.

This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that "Senators and Representatives shall be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." ... The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.

Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.

Nice idea, but no dice. The Supreme Court's decision in Williamson v. United States (1908) holds that "the term 'treason, felony, and breach of the peace,' as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses"; the Arrest Clause thus applies only to arrest in civil cases, a practice that apparently was not uncommon at the timing of the Framing. The sources Williamson points to, including Justice Story's respected 1833 treatise on the Constitution, seem to bear this out:

§ 862. The exception to the privilege is, that it shall not extend to "treason, felony, or breach of the peace." These words are the same as those, in which the exception to the privilege of parliament is usually expressed at the common law, and was doubtless borrowed from that source. Now, as all crimes are offences against the peace, the phrase "breach of the peace" would seem to extend to all indictable offences, as well those, which are, in fact, attended with force and violence, as those, which are only constructive breaches of the peace of the government, inasmuch as they violate its good order....

So no help to Sen. Craig here.

Specast:
Here's a question: does the Arrest Clause prohibit only arrests, or does it also prohibit prosecutions based on conduct taking place (or discovered, etc) while the official is working or in transit? It seems that the goal of the provision is to prevent someone from physically preventing an elected official from carrying out his duties. A prohibition on arrest does that directly. A prohibition on prosecution does that only indirectly, and does it rather inefficiently.

I realize a prohibition on arrest would often make prosecution difficult or impossible, e.g. by preventing effective identification of the suspect. But that's a different issue.
9.10.2007 5:27pm
Guest101:
The blog author has no idea what he (or she-- the site is blocked by my employer) is talking about anyway. Even assuming Craig had a constitutional right against being arrested, constitutional rights are waived all the time in criminal proceedings, and certainly provide no basis for overturning a conviction based upon a guilty plea where the defendant failed to assert the right in question. "It is well settled that a defendant's plea of guilty admits all of the elements of a formal criminal charge, and, in the absence of a court-approved reservation of issues for appeal, waives all challenges to the prosecution except those going to the court's jurisdiction." Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987) (citations omitted).
9.10.2007 5:44pm
Tom R (mail):
So "no ex post facto law" only means "no ex post facto criminal law", but "no arrest" means only "no civil arrest"?

I've often wondered how useful the civil/ criminal distinction really is, now that William the Conqueror has been dead 900 years.
9.10.2007 6:17pm
M. Gross (mail):
By "the blog author" I assume the above poster means Bryan Fischer and not Eugene Volokh.
9.10.2007 6:18pm
BGates (www):
Guest101, Miranda. If anything, this case points out the need to expand the Miranda warnings. I've never seen any reason to believe Congress has any more idea what's in the Constitution than any random vagrant felon.

I don't see how Craig can be charged with a breach of the peace, since he kept his piece in his breeches.
9.10.2007 6:26pm
Tony Tutins (mail):
More recently, Gravel v. U.S. (1972) reiterated that the Constitution "does not exempt Members of Congress from the operation of the ordinary criminal laws," citing Williamson and its predecessor, Burton (which seems on all fours with Craig). Gravel also includes some supporting rationale from Thomas Jefferson.
9.10.2007 6:40pm
Randy R. (mail):
It would be sort of a disaster for Craig if he tries this as a defense, since it would mean that he can't fight the substance of the charge, which is that he tried to pick up another man for sex. At least, that's how the public will view it.

Sorta like claiming the Fifth -- you might have a right to invoke it, but the public has the right to assume you are guilty of something.
9.10.2007 6:41pm
Tony Tutins (mail):
I've often wondered how useful the civil/ criminal distinction really is

Ask O.J. He won in the criminal court, but lost in the civil court. As a result, he's free to seek the real killer on Florida's golf courses.
9.10.2007 6:47pm
Paul Karl Lukacs (mail) (www):

If that's what the case law says, that's what it says, but the Arrest Clause seems a poor protection if any local deputy sheriff can arrest a senator on a criminal charge of "disturbing the peace," particularly if that senator is on the way to the airport to cast a vote on a close, contentious issue.
9.10.2007 6:58pm
Dave Hardy (mail) (www):
Wonder why they didn't just say "except in criminal cases."?
9.10.2007 7:08pm
Guest101:
M. Gross,

Assuming that Bryan Fischer is the author of the Idaho Sun piece, yes, that's what I meant. I certainly didn't mean to suggest that Prof. Volokh's analysis was wrong, but only to add that, even if the Arrest Clause does apply to criminal arrest, it wouldn't entitle Senator Craig to withdraw his guilty plea or vacate his conviction.
9.10.2007 8:11pm
Guest101:
Sorry, the above should read, "assuming that Bryan Fischer is the author of the Idaho Sun Valley Blog piece. . . ." I should have scrolled back up to get the name of the blog right.
9.10.2007 8:13pm
ReaderY:
North Carolina once had a (nameless) Congressman who reportedly regularly evaded arrest for drunk driving on these grounds...maybe there was an equivalent in the State constitution.
9.10.2007 9:23pm
ReaderY:
North Carolina once had a (nameless) Congressman who reportedly regularly evaded arrest for drunk driving on these grounds...maybe there was an equivalent in the State constitution.
9.10.2007 9:23pm
ReaderY:
"Disorderly conduct" would seem to be a species of breach of the peace...
9.10.2007 9:23pm
James Fulford (mail):
I blogged about this on August 29, and I came to the same conclusion. What Larry Craig was arrested for, and originally charged with was Minnesota Statutes 2006 609.746 INTERFERENCE WITH PRIVACY, which in this case means peeping through the stall door. This is a gross misdemeanor which means that it's an actual crime.
9.11.2007 1:31am
Brian G (mail) (www):
Poor Senator Craig. If he were only a Democrat, he'd have no problem finding a liberal judge to rule in his favor.
9.11.2007 2:37am
Cornellian (mail):
Poor Senator Craig. If he were only a Democrat, he'd have no problem finding a liberal judge to rule in his favor.

But being a Republican, he'll just get a pardon instead.
9.11.2007 3:21am
PersonFromPorlock:
If "all crimes are offences against the peace," then why specify treason and felony?
9.11.2007 10:28am
occidental tourist (mail):
Williamson (207 US 425) does loosely stand for the proposition that:


Since from the foregoing it follows that the term 'treason, felony, and breach of the peace,' as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses, the conclusion results that the claim of privilege of exemption from arrest and sentence was without merit, and we are thus brought to consider the other assignments of error relied upon. id at 445


But this is not the actual holding of the case. It does seem to express the court's understanding of the contours of the exception however the case is not examining the lower threshold defined by 'criminal offense'. Rather it focuses on the distinct between a crime having violent or public elements. The case involved a member of the House of Representatives who was accused of taking bribes for preferential treatment in obtaining federal lands.

Indeed the more operative effect was to uphold Story's constiutional analysis of the provision which is cited approvingly:

"'Sec. 865. The exception to the privilege is that it shall not extend to 'treason, felony, or breach of the peace.' These words are the same as those in which the exception to the privilege of Parliament is usually expressed at the common law, and were doubtless borrowed from that source. Now, as all crimes are offenses against the peace, the phrase 'breach of the peace' would seem to extend to all indictable offenses, as well those which are in fact attended with force and violence, as those which are only constructive breaches of the peace of the government, inasmuch as they violate its good order. And so, in truth, it was decided in Parliament, in the case of a seditious libel published by a member (Mr. Wilkes) against the opinion of Lord Camden and the other judges of the court of common pleas, and, as it will probably now be thought, since the party spirit of those times has subsided, with entire good sense and in furtherance of public justice. It would be monstrous that any member should protect himself from arrest or punishment for a libel, often a crime of the deepest malignity and mischief, while he would be liable to arrest for the pettiest assault or the most insignificant breach of the peace.'" id at 444

The court really does not decide that congressional officiers should be arrestable for the most insignificant breach of the peace.

In any event, the use of the phrase criminal offense in this decision and whether this is an actual holding or not is pivotal in my mind as to whether Williamson is a controlling precedent, rather than heresay on the what the courts understanding of the clause was.

Breach of the peace is essentially disorderly conduct by definition, but the petty offense of disorderly conduct is not, or not necessarily, a breach of the peace according to Black's.

James Fulford doesn't have it quite write. Both disorderly conduct and interference with privacy are crimes as in "criminal offenses". Neither of them is a felony. As any legal dictionary will illuminate, misdemeanors are often categorized as a matter of state law but simply because the term here is gross misdemeanor does not mean that this crosses the line of a petty offense.

This law was recently adopted and it would have been quite well understood the difference between making this offense a felony and a misdemeanor.

The analysis in Williamson is based on tracing the english equivalent protection against arrest for members of parliment. It does appear that the english parliment and courts considered misdemeanors arrestable offenses for lawmakers. But if our law has evolved not to consider misdemeanors, or certain misdemeanors to be breaches of the peace I think there a reasonable proposition that this would impact how the court would interpret Article I Section 6 of the Constitution at issue here.

This is about evolution of the underlying law and not evolution of the constitution.

It seems a close enough call that this provision is not the basis for Craig asking that his guilty plea be vacated, nor is it even mentioned by his attorney.

Brian
9.11.2007 1:33pm
Deoxy (mail):
As I understand it, a certain Senator with a famous last name that rhymes with "Zennady" used that very rasoning to get out of any and all penalties after crashing his vehicle in a concreate barrier in Washington while falling-down drunk, so the police certainly seem to think it applies to criminal conduct (the officer at the scene was prtty angry about it, IIRC). It was like 2 AM, the Senate was not even in session, so it was obviously a lie, but it still worked...

Any comment on that, oh all-knowing Guest101?
9.11.2007 5:43pm
arbitraryaardvark (mail) (www):
It's my opinion that Story and Williamson are wrong, that a breach of the peace is historically a set of crimes of violence, which this one might not have been. Williamson, if controlling, is old enough and wrong enough to be worth threatening to litigate, as a negotiation tactic. I was interested to see that the MN constitution privileges its own state reps from arrest, but does not appear to privilege congresspersons.
I have a bit of hands on experience with this issue.
The enforcement of criminal laws can face the odd challenge on election day. In State v. Stewart, 869 S.W.2d 86 (Mo. App. W.D. 1993), Robbin Stewart was stopped for speeding as he returned from voting in a primary election. Stewart argued that the case against him should have been dismissed because article VIII, section 4, of the Missouri Constitution provided that voters should be "privileged from arrest while going to, attending and returning from elections, except in case of treason, felony or breach of the peace."

The Missouri Court of Appeals for the Western District rejected Stewart's argument. The appeals court noted that in the past, the Missouri Committee on Suffrage and Elections had entertained the idea that the clause cited by Stewart should apply to primary elections as well as general elections, and that the committee had refused to adopt the expansion. In a footnote, the court advised that the U.S. Supreme Court had construed the phrase "treason, felony or breach of the peace" as including all criminal offenses (Williamson v. U.S., 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278 [1908]). Such a reading would seem to nullify the objective of Missouri's constitutional clause. Nevertheless, the existence of such an election-day privilege is a testament to the importance of free elections in the United States.
http://www.answers.com/topic/elections?cat=biz-fin
arbitrary aardvark alias robbin stewart
9.11.2007 10:04pm
Guest101:
Deoxy,

None whatsoever, since nothing that I said had anything to do with whether or not the Arrest Clause applies to criminal arrest-- that was Professor Volokh's point, so I'm not sure why your question or your sarcasm were directed to me. I can assure you, however, that if Senator Kennedy had pleaded guilty to a criminal offense in connection with that event, he wouldn't later be able to withdraw that plea on the basis of a constitutional immunity that he failed to exercise at the time.
9.12.2007 12:05pm
occidental tourist (mail):
robin,

great case. too bad it was a primary. looks like you might have prevailed had it been the general election. but you bring up a point that I think also bears on the cavalcade of Republicans eatting their own in this affair. If someone pleads guilty to a speeding ticket while they are in Congress or a DUI to offer a more enticing moral dilemma, ought they to resign?

Larry Craig deserves a reasonable degree of oppribrium from his colleagues for how he has handled this, but suppose he handled very straightforwardly and told everybody that he pleaded guilty to a misdemeanor. Is he supposed to resign?

The most recent obvious example is indeed that congressman whose name rhymes with Zennady. Although he was not charged at the time of the incident, I believe that he ultimately insisted that he be treated like anyone else and was charged with DUI. There was never a whiff of anyone asking him to resign. It had no bearing on his congressional duties other than that he advanced his congressional status as a get out of jail free card at the outset.

Are some people more special than others? To be fair, perhaps some of those who think Larry Craig should resign thought and said that Patrick should resign. I'd certainly be interested to know that. But I am disgusted in an analytical way by squishes like John McCain jumping on Craigs political grave to try and get himself some conservative cred. I think John McCain should resign for supporting campaign finance reform.

Brian
9.12.2007 7:01pm