Reforming Knesset immunity

When the dust settles from Israel’s current constitutional crisis, the Knesset will have to pass laws to ensure that a corrupt party leader cannot attempt to destroy the country’s democracy.  One law Blue and White proposed would prohibit an indicted MK from forming a government. All for the good.

However, the Knesset must confront an underlying problem that brought about the political chaos — the extent of immunity from criminal prosecution MKs enjoy.  The Knesset should enact a law limiting the scope of immunity. Under current US Supreme Court precedent, law enforcement may not interrogate a legislator regarding the meaning of and motive behind committee activity, floor speeches, or votes. Further than that, constituent service or advocacy before US or foreign officials remains fair game for prosecution.  Notably, so does bribery in exchange for committee activity, legislation, or floor speeches. However, the police must obtain independent evidence of the bribe, as from the co-conspirator or a recording. United States v. Brewster, 408 US 501 (1972), and United States v. Johnson, 383 US 169 (1966). 

Israel faces a serious problem if it fails to act. One can draw a logical conclusion that, after last April’s election, having failed to gain immunity, the prime minister dissolved the Knesset. A second election would enable him to try again.

The issue goes deeper. Indeed, even if the Knesset has to vote for an individual MK’s immunity, the exemption goes too far. For example, at the time the prime minister withdrew his request for immunity before the most recent election, the Knesset allowed an MK to escape accountability for possible crimes in his previous job. That serves no public purpose. Immunity should operate to shield MKs from intimidation, not as a “get out of jail” card for past misbehavior.

Fortunately for Israel, the United States has struck the proper balance between protecting the independence of the legislature and placing legislators above the law. The Founding Fathers learned from the bitter history of tyrannical English monarchs to enshrine legislative immunity in Article I section 6 of the Constitution. They  exempted representatives and senators from arrest (except for treason and similar serious crimes) in route to and from sessions. Relevant here, the Constitution states further that “[F]or any Speech of Debate in either House, [members of Congress] shall not be questioned in any other Place[,]” such as prosecutor’s offices or courtrooms. The Constitution did not define the specific contours of the “Speech and Debate” clause.

Over the past 55 years, US law enforcement has had to confront a number of senators and members of the House  using their offices for private gain in ways familiar to Israelis. Brewster involved a US Senator convicted of taking a bribe in exchange for helping to pass legislation reducing postage rates. The notorious ABSCAM case of the late 1970s ensnared a US Senator and half a dozen House members in a scheme in which an “Arab sheikh” bribed them to introduce legislation allowing him to live in the US.    About 10 years ago, the FBI found cash, wrapped in plastic, in the refrigerator at a congressman’s kitchen in Virginia — bribe money the legislator took for promoting a company’s business interests to US and foreign officials. United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012).

The courts held that they must interpret the  legislative immunity clause to match the threat it guards against, without itself becoming a threat to the rule of law. The Supreme Court showed that, even in England, the sale of immunity (which covered the entourage of MPs) led to its restriction to members only. Similarly, the Court found that Canada and Australia have structured their immunity in light of conditions in their countries.  The US, with its independent judiciary and checks and balances, requires only that prosecutors not pursue members of Congress for their legislative acts. Prosecuting previous crimes or gathering evidence from private citizens or tapes or even mounting sting operations does not intimidate legislators, but keeps them honest.

Experience has proven that correct. Israel, which has an independent Attorney General and judiciary, should follow suit. . Knowing that he could not receive immunity for bribery and breaches of trust, the prime minister loses the incentive to bring the country down with him.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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