Josh Chafetz, guest-blogging at The Volokh Conspiracy, continues his series on the constitutionality of resignations by members of the U.S. House of Representatives with this post. UPDATE: And part V is here. ANOTHER UPDATE: Chafetz responds to commentors today.

Josh Chafetz, guest-blogging at The Volokh Conspiracy, has three separate posts on whether the Constitution permits Representatives in Congress to resign their seats. Looks like my stack of law review articles to read has justs grown. (Apparently he’s a smart fellow from Houston whose dad teaches at U. of H. Just because he’s from Texas does not move his article to the top of the list, though.)

Edward Still at Votelaw has a brief item this morning pointing out this story on Pennsylvania’s “bonusgate” that details how e-mails between House employees are being used to prove the prosecution’s case, including obtaining the indictments. (The prosecution’s press release includes links to the grand jury reports). While the candor expressed in the e-mails is both startling and disturbing in their honesty, I am wondering about the part legislative privilege might play once the case goes to trial if the defense tries to suppress some of the e-mail evidence.

You see, the incriminating e-mails were obtained by “[Attorney General Tom] Corbett’s agents [who] combed through thousands of e-mails between staffers, lawmakers and others within the legislative branch.” How did the AG obtain “thousands of e-mails” without implicating the state’s constitutions speech and debate clause?

In Pennsylvania, legislators, “for any speech or debate in either House[,] they shall not be questioned in any other place.” Pa. Const. art. II, sec. 15. This protection extends to records concerning “activity [that is] an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177, 187 (Pa. Cmmw. 2006) (emphasis added). Both Houses have constitutional authority to “ prescribe by law the number, duties and compensation of the officers and employees of each House[.]” Pa. Const. art. III, sec. 17.

This issue was discussed by the D.C. Circuit in its opinion in the William Jefferson case, where the FBI conducted a full search of a congressional office in the Rayburn House Office Building. The D.C. Circuit agreed with Jefferson’s argument that the mere review of legislative documents implicates the Federal Speech and Debate clause because, to determine which documents were covered by the search warrant, the FBI had to review documents that certainly related to legislative acts of the legislator. And while mere copying of electronic material was permissible, that material could not be reviewed until the legislator had a chance to assert his privilege under the clause.

Jefferson’s case involved looking for records related to Jefferson’s personal business interests that, it was alleged, Jefferson was advancing through his office as a representative. In Pennsylvania, the case relates directly to the management and control of legislative employees, a wholly legislative act within the jurisdiction of the House and thus one designed to be protected by the state’s speech and debate clause. This appears to me to be a distinction with a difference. The indictment does seems to reflect this understanding because it alleges that the conduct furthered the private gain of seeking and obtaining elected office.

I’m not surely exactly how this would play out in the criminal trial on a motion to suppress. The Jefferson court seemed to suggest that the remedy was some kind of exclusion based on the Fourth Amendment once an indictment is handed down. I confess that I haven’t looked at this issue at all. If someone else has, I’d appreciate hearing their thoughts.

Of course, I am not advocating that criminal activity by legislators should be privileged or unreviewable. I am merely saying that there should be some safeguards to allow legislators to fully and freely do the jobs they were elected to do without fear of having the AG or the Governor looking over their shoulder the whole time. As Akhil Reed Amar pointed out in discussing the FBI raid on Congressman William Jefferson’s official office, there should be “special safeguards above and beyond warrants [that] should apply when there is a particularly high risk that various papers will implicate confidential information of innocent third parties—as is likely when a newspaper office is searched, or an attorney’s office, or a priest’s office. I suggested that such searches should be conducted by special judicial masters or magistrates, who would prevent roving executive eyes from snooping into papers that are irrelevant to the investigation at hand.” Since the purpose of speech and debate clauses is to ensure the legislature’s independence free from harassment by the executive and judicial branches, it would seem that there should have been in place some safeguard before the Pennsylvania Attorney General rifled thru thousands of e-mails between legislators, their staff and constituents. Anyone who has worked in a legislative office understands the needs for privileged communication, especially with constituents who disclose personal information. This is definitely one to watch.