Classical Values :: Constitutional cummings and goings.....

September 09, 2007

Constitutional cummings and goings.....

All considerations related to Larry Craig and his guilt aside, I'm fascinated by the idea that the Minneapolis Police Department may have violated the Constitution by arresting him:

If the senator 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." (emphasis mine) 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.

If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.

Well, he did flash his Senate business card -- for which he was severely criticized.

At the time I thought it was pretty sleazy of Craig to do that. But if the Constitution in fact protected him, if he was in fact on official business, might he have been doing his duty (however unwittingly) by showing the officer his card? In any case, the sleaziness notwithstanding, the police can't say they weren't put on notice.

Did Craig vote that day? If he did, it seems they had no right to detain him any longer than might have been necessary to issue a citation. I don't think this provision constitutes a privilege to commit crimes, nor does it supply immunity from prosecution, but if the arrest was invalid, he might now have grounds for invalidating his hurried guilty plea. (The "fruit of the poisonous tree" doctrine comes to mind.)

I haven't researched this so I'm just thinking out loud.

Any ideas?

posted by Eric on 09.09.07 at 10:06 AM

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Comments

Eric,

As you correctly note, immunity to arrest is not synonymous with immunity to prosecution.

Also, Sen. Craig was arrested on June 11, but he didn't enter a written plea agreement until Aug. 1. Seven weeks between arrest and plea doesn't strike me as "hurried."

The "fruits of the poisonous tree" doctrine is inapposite here. That doctrine precludes the introduction at trial of evidence obtained unlawfully. Even if Sen. Craig's arrest violated Article 1, his arrest did not occasion the collection of evidence; it followed the collection. And I've read nothing to suggest that the evidence (such as it is) was unlawfully collected.

Paul · September 10, 2007 01:13 AM

and really, there is nothing in the constitution that says they can't arrest him for the crime/misdemeanor AFTER he was done with Senate business.

i.e., "Senator Craig, we're going to let you go right now because the Constitution says we have to, but when you're done with Senate business, we'll be arresting you for this."

Michael Demmons · September 13, 2007 10:21 AM