‘Privilege’ defense not likely in cards for indicted lawmakers

They also may not be successful.

That legal strategy was a loser in 1980 for a state senator charged in a corruption case, and both a political analyst and an attorney for one of four lawmakers arrested last month said it likely would fail now.

“We are researching it,” said William Massey, an attorney for state Sen. Kathryn Bowers, D-Memphis.

In then-Sen. Edgar Gillock’s case 25 years ago, the U.S. Supreme Court disagreed with the Memphis Democrat’s claim that privilege as a state lawmaker should allow him to suppress evidence about legislative acts.

Gillock, who resigned his Senate seat, spent 26 months in prison and became a minister after a federal jury convicted him of taking bribes and abusing his political clout in Nashville.

Last month, FBI agents in the closing days of the General Assembly’s annual session arrested Bowers, state Sens. John Ford and Ward Crutchfield, state Rep. Chris Newton and former state Sen. Roscoe Dixon.

They were charged with taking bribes to influence legislation in a federal and state investigation code-named “Tennessee Waltz.”

The Tennessee Constitution provides that “senators and representatives shall, in all cases, except treason, felony, or breach of peace, be privileged from arrest during the session of the General Assembly, 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.”

Massey said that based on the 1980 U.S. Supreme Court action, “where we stand now is the Tennessee Constitution’s protection is not available to provide protection to state legislators indicted under a federal statute, That remains the law.”

Massey said he would be requesting the government’s evidence at Bowers’ arraignment Wednesday in Memphis.

“It could be that (privilege) issue raised at a different time in a different way will give a different result. Only time will tell,” Massey said. “My gut reaction is it would not be available for protection of Senator Bowers or any of the others.”

Stefanie Lindquist, an associate professor of political science and law at Vanderbilt University, said privilege provisions were included in the U.S. and state constitutions to “protect legislative deliberations.”

She said the protection allows them to “feel free to engage in dialogue over public policy rather than feeling their speech may be used against them.”

Lindquist said such protection for “actions is a more questionable part of that.”

Ford, who has since resigned his seat, and Crutchfield and Dixon, did not return telephone messages seeking comment about legislative privilege. Newton could not be reached by telephone for comment.

Lindquist said Gillock’s attorneys unsuccessfully claimed that he had “legislative privilege that would cover him in the same way as congressional debate.”

She said the Tennessee Constitution provides “no protection” and any claim of privilege or immunity would likely fail.

“In general, that U.S. Supreme Court decision is going to preclude this as a defense,” Lindquist said.

She said such protections in the U.S. Constitution apply only to federal officials and not cases involving felony offenses.

The Tennessee Attorney General’s Office in a 1980 opinion said the state constitution does not even provide privilege or immunity to legislators for traffic violations while they are in session.

The opinion said the “Supreme Court of the United States has held that the exception of the privilege is broad enough to cover arrest for all criminal offenses.”

That attorney general’s opinion, which is not binding the way a court opinion is, said that “under Tennessee law, the term `breach of peace’ is broad enough to include traffic violations.”