Rep. Nick Smith, reluctant witness

Now that the Justice Department has decided to “review” reports of an attempt to bribe Rep. Nick Smith on the floor of the House, Smith seems to be trying to back off. But Tim Noah notes that he’s been caught on tape saying that a $100,000 bribe was offered.

So he can now call himself a liar, or snitch on whoever did it. We’re all watching with interest.

Footnote: A reader asks whether the bribe attempt, apparently from a member of the Republican leadership, would be exempt from prosecution under the “speech and debate” clause because it happened in the House chamber. As far as I know, “speech and debate” applies only to public statements, not to what one Member says to another. Presumably if the bribe had been offered in a speech appearing in the Congressional record, the bribor would be exempt from criminal prosecution, though of course not to discipline by the House. Speaking of which, am I the only person dismayed by the habit of the Congress of deferring its disciplinary cases pending criminal investigation?

Correction Looks as if I spoke too confidently about “speech and debate.” A reader supplies two precedents suggesting that the offer of a bribe by one Representative to another might well be protected, though as I read them neither case is precisely on point:

“In part because the tradition of legislative privilege is so well established in our polity, there is very little judicial illumination of this clause. Clearly no precedent controls the decision in the case before us. This Court first dealt with the clause in Kilbourn v. Thompson, 103 U.S. 168, a suit for false imprisonment alleging that the Speaker and several members of the House of Representatives ordered the petitioner to be arrested for contempt of Congress. The Court held first that Congress did not have power to order the arrest, and second that were it not for the privilege, the defendants would be liable. The difficult question was whether the participation of the defendants in passing the resolution ordering the arrest was “speech or debate.” The Court held that the privilege should be read broadly, to include not only “words spoken in debate,” but anything “generally done in a session of the House by one of its members in relation to the business before it.” 103 U.S., at 204 . “—UNITED STATES v. JOHNSON, 383 U.S. 169 (1966).

“The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.” –UNITED STATES v. BREWSTER, 408 U.S. 501 (1972)

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com