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  • KC Stark

How Do US Lawmakers Get Away with Breaking the Law and Avoiding Subpoenas?

Wouldn't it be nice to be able to write the laws that govern America and not have to abide by them yourself? The concept is based on what's known as 'legilative privilege.' Legislative privilege is meant to protect lawmakers from legal consequences and provides immunities. Recently history has placed this easily abused privilege in new light and raises the question - is it just?


How Do US Lawmakers Get Away with Breaking the Law and Avoiding Subpoenas?

Today, the Georgia House passed a new extreme form of legislative privilege with the intent to shield them and their staff from legal cosequenes.


The state House and Senate adopted rules Wednesday that say legislative privilege — a legal concept rooted in the U.S. and Georgia constitutions that says lawmakers shouldn't face questioning for activities relating to making laws — should shield communications with people outside the legislature. Most majority Republicans voted in favor and most Democrats voted against. The Associated Press

Legilative Privilege: What and Why is It?


Legislative privilege is a legal concept that protects members of a legislative body, such as a Congress, from legal consequences for certain actions they take while performing their legislative duties. This privilege is intended to ensure that legislators can carry out their responsibilities without fear of retaliation or prosecution. It doesn't (or shouldn't) shield anyone from breaking the law.


The Speech and Debate Clause: Immunity from Prosecution


One aspect of legislative privilege is immunity from prosecution for speech and debate. This means that legislators cannot be held criminally or civilly liable for anything they say or do in the course of their legislative duties, such as in committee meetings or on the floor of the legislative chamber. This immunity is intended to protect the freedom of speech and debate in legislative bodies, which is considered essential for the functioning of a democratic government.


The Select Committee to Investigate the January 6th Attack on the United States Capitol sent subpoenas to House Republican Leader Kevin McCarthy of California, Andy Biggs of Arizona, Jim Jordan of Ohio, Scott Perry of Pennsylvania and Mo Brooks of Alabama. The Republican members all had been invited to testify voluntarily. Committe Chariman Bennie Thompson D-Mississippi

Members of Congresss Subpoenad in Jan. 6 Inquiry


  • House Republican Leader Kevin McCarthy, R-Oklahoma

  • Andy Biggs, R-Arizona

  • Jim Jordan, R-Ohio

  • Scott Perry, R-Pennsylvania

  • Mo Brooks, R-Alabama


“Look, my view on the committee has not changed,” he said, according to the Capitol Hill press pool. “They’re not conducting a legitimate investigation. It seems as though they just want to go after their political opponents” House Republican Leader Kevin McCarthy of R-California

The speech and debate clause provides immunity to legislators:


  • For anything they say or do while carrying out their legislative duties.

  • Protects the freedom of speech and debate.

  • Ensures that legislators can carry out their responsibilities without fear of retaliation or prosecution.

  • It has a history rooted in English common law and has been interpreted and defined by the courts throughout American history.


Legislative Privilege: Immunity From Arrest - Get Out of Jail Free Card


Another aspect of legislative privilege is immunity from arrest. In many countries, legislators cannot be arrested or detained for a criminal offense while the legislative body is in session, and in some cases, even when it is not in session, it only apply for certain crimes. This immunity is intended to protect legislators from being taken out of commission or silenced through arrest or detention.


Legislative Privilege Includes Protection from Defamation and Libel Claims for Legislators


The speech and debate clause is a provision of the United States Constitution that is found in Article I, Section 6, Clause 1.


It states that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." The clause is intended to protect the freedom of speech and debate of legislators, so that they can carry out their legislative duties without fear of retaliation or prosecution.

The speech and debate clause has its roots in English common law, where it was recognized that members of Parliament had immunity from prosecution for anything they said or did while carrying out their legislative duties. This was seen as necessary to ensure that legislators could speak freely and openly without fear of retaliation.


When the United States Constitution was written, the framers of the Constitution included the speech and debate clause as a way to ensure that legislators in the new government would have similar protections. They believed that without such protections, legislators would be subject to the political pressure and retaliation and the functioning of the government would be hindered.


Today, one could argue that these privileges are being abused to actually limit and inhibit the functioning of the US Government

American history: Scope and Application of the Speech and Debate Clause Interpreted by the Courts


Initially it was interpreted narrowly, but over time, as the role of the legislative branch evolved and grew more important, the courts have interpreted the clause more broadly in order to protect the independence of the legislative branch and prevent interference from other branches.


The Supreme Court of the United State: Extended Legislative Protections


The Supreme Court has also held that the protection provided by the speech and debate clause extends beyond the confines of the legislative chambers, such as, protects legislative acts including committee reports, resolutions and their drafts, and legislative documents.


IMO, legislative privilege was designed to protect the legal duties of legislators, but it can also to easily be used to shield legislators from accountability. When those that write the law are above the law, justice in America will remain allusive.

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