Newt Gingrich, apparently thinking “What the hell, the voters will never make me president anyway,” made headlines last night by saying Congressman Barney Frank and former Senator Chris Dodd should be arrested for their alleged role in bringing about the financial crisis. Gingrich said that voters have a right to be angry, and if they want to see people jailed for the meltdown, “you ought to start with Barney Frank and Chris Dodd.” Charlie Rose, obviously shocked by Gingrich’s suggestion, offered him the chance to moderate his remarks, but Gingrich didn’t bite. What should we make of this suggestion from the former speaker?
It will surprise no one to learn that this, like almost everything Gingrich says, is half-baked nonsense. Article I, Section 6 of the Constitution contains the “Speech and Debate Clause,” which says that members of Congress “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.” According to the Department of Justice, this clause “provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts.” And as a 2009 article in the UC Davis Law Review explains, “Both the Supreme Court and the D.C. Circuit have interpreted and shaped the Clause to create the current legislative privilege, which provides a broad protection for the legislative process. This protection safeguards not only actual speech and debate on the floors of Congress, but also prevents inquiry into the motivations and reasons for a legislator’s actions, as well as the questioning of any activities legitimately related to legislative actions.” Now, Gingrich did hedge slightly by pointing toward Barney Frank’s ties to some industry lobbyists, but absent any evidence of outright bribery, he’s on shaky legal ground. Maybe the Constitution-venerating patriots in the Tea Party could tutor him on the topic.