Here, again, is Article 21 of the MA Constitution‘s Declaration of Rights:
The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
Set aside the interesting question whether that Article in fact extends to the records at issue here. I doubt it, but I don’t know for sure, and neither does DiMasi — the SJC will eventually tell us all, if it comes to that. What is clear from the text of the Article is that even if it does apply, it does not somehow require DiMasi to keep the records secret. Nor does it even appear to entitle him to do so. To the contrary, the main purpose of the Article is to shield legislators from civil or criminal liability for things that they say in public, on the floor of the legislature. Thus, Sen. Mike Gravel (and his aide) could not be prosecuted for reading the Pentagon Papers into the Congressional Record, because the federal equivalent of Article 21 protected them.
We’re not talking about something akin to the attorney-client privilege, where the content of private communications is protected from public disclosure. Rather, we’re talking about an immunity from liability for statements that may well have been made in public. So DiMasi has no business claiming that Article 21 permits him to keep the records at issue secret — that’s simply not what Article 21 is about. Does Article 21 protect him from liability based on those communications? Maybe, maybe not — like I said, the SJC will tell us. But Article 21 says not a word about shielding communications from public disclosure, since it assumes that most communications it covers (e.g., statements made in House or Senate “speech” or “debate”) will have been made in public anyway.
And so, with all due respect to Rep. Dan Bosley, who opined on the extent of Article 21 over at Outraged Liberal’s place, he’s dead wrong. He posits the following argument:
[L]et’s forget the Speaker and the current controversy and look at the principle behind Article 21 of the Constitution…. [A]ny company that comes into our offices should have a reasonable expectation of privacy. This rule would apply to all and if we start to divulge all of our work product, people and companies would not be forthcoming and our deliberations would suffer…. Unfortunately, we can’t pick and choose when to divulge or not divulge the inner communications of our offices. Once we start to waive that public protection, we can’t then use it on other occasions. It doesn’t apply to one company or conversation, but to all of our deliberations in our offices or with our colleagues.
That is an interesting argument, but it has nothing to do with the “principle behind Article 21.” Bosley is talking about attorney-client privilege, or work-product doctrine, or similar legal doctrines that shield the content of certain communications from public disclosure, because the costs of disclosure is thought to outweigh the benefits. But, as I’ve already discussed, that is clearly not the principle behind Article 21. Article 21 may (or may not) shield legislators from liability for communications like those at issue in the DiMasi/Cognos matter. But it simply says nothing about a “reasonable expectation of privacy,” nor about whether such communications may or should be disclosed to the public.
Speaker DiMasi publicly bemoans the fact that his reputation is suffering from the ongoing investigation and associated news stories. He needs to recognize that he’s the only person who can stop it, and that he has no constitutional basis for not doing so.
Oh, and one more thing. The Globe reported that Article 21 has not been construed by the SJC since 1808, and that on that occasion, “it upheld the legislative protection.” That’s incorrect, or at least misleading. The case, Coffin v. Coffin, 4 Mass. 1 (1808) (note that the date at that link is incorrectly shown as 1803), actually upheld a verdict (for $15) against a representative who was found to have slandered someone on the floor of the House. The Court first explained that Article 21 does indeed shield many statements from legal liability, but went on to hold that the statement in this case was not made in the course of the representative’s duties, and therefore was not protected.
It can be tricky to read decisions of this vintage — they are much more stream-of-consciousness than modern judicial opinions and do not clearly point you to the result in the way that modern opinions do. Still, the “legal specialists” consulted by the Globe should have gotten this one right.
Thank goodness for good lawyers. And for free! Right here at BMG. Plus, you can read the 1808 decision — and read about other things that happened in 1808, like the discovery of Pitcairn Island and the last living Bounty mutineer — with just one click. What a wonderful thing the blogosphere is.
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p>DiMasi’s claims are fatuous. First, his reliance on Article 21, as David demonstrates, is ludicrous. In fact, it is worse than ludicrous, it is disrespectful to an important principle: legislators should be free to say what they want in public, and especially in open debate in the House. It sounds like the kind of ultra-technical defense only a second-rate lawyer would dream up.
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p>Second, he’s the Speaker of House: he has to hew to an exceptionally high standard. If he wasn’t prepared to accept the responsibilities of the office, especially with regard to disclosure and setting a good example, he shouldn’t have run for the office, or he should take a bow now.
Casino lobby or not, this is a hail mary pass by DiMasi. He’s created the appearance of a conflict of interest, and his successors are ready to dance on his grave. His days are numbered.
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p>Mark
The bloviating on this subject by fellow progressives who often seem to lose their standards of justice when it comes to our political leaders is amazing…
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p>1. Too many people seem to think that constitutional principles should be cast aside in consideration of the expediency of the moment. Does this sound familiar?
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p>2. If you sift through all the news and commentary out there, and talk to some real lawyers, you actually find some people who think that defining this issue through the courts is larger than the plight of a single legislator (don’t expect to find that perspective in the Globe).
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p>3. This issue has not been ajudicated here recently and the way the legislature operates in 2008 is a lot different than 200 years ago.
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p>4. We have courts for this very reason. While all the Hot Stove political commentary here makes for interesting, and even at times enlightening reading, this is not the same as judging the Manny trade where everybody can have the right opinion, and often two or three. Judges will decide this issue, as they should.
That sucks- I thought for sure I was going to be the final arbiter of DiMasi’s fate.
Bummer, man.
Do these guys ever deal with human beings anymore, or just corporations? “Expectation of privacy”- for corporate lobbyists. What a comedy.
it’s just a stall tactic, David. Get the house leadership issue under control, then deal with the Cognos issue. That Cognos issue isn’t going to bring him down… but a mutinous Rogers, Deleo and Flynn just may.
he’s got it exactly backwards. As long as Cognos is hanging around, he looks vulnerable, so Rogers and (especially) DeLeo will press on. He needs to defuse Cognos before he can address challenges to his leadership.
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p>Further, if it’s a “stall tactic,” it’s an immensely foolish one. Not only does it appear to lack legal merit, but it looks to all the world to be a technical way of keeping dirty laundry out of sight. What’s the point of that?
I agree. And it’s pissing me off!
Ryan’s could be the explanation for him having big secret meetings with key Reps.
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p>It’s all just so friggin’ frustrating…
Never did get that impeachment I prayed for. Oh well.
Congress cannot effectively investigate the conduct of members of the Executive Branch without impeaching them first. Bush and Cheney basically stalled their way out of accountability for the better part of four years.
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p>that’s what Ted Stevens thought!
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p>Trust me, it’s always better to push off the big scandal as long as you can if there’s something more pressing at hand. He doesn’t need to push it off that long.
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p>And, this is all just my best guess, because I do agree with you – this is flimsy and the courts will say as much. I don’t think he would ignore them.
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p>For now, of course it does. A months from now, or two? People will forget this stuff ever happened. Seriously, when it comes to politics, people forget almost everything. A majority of the population couldn’t tell you that President Bush ran on tax cuts in 2000.
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p>Also, I’m not condoning any of these actions, just giving my best guess at explaining what I think is most likely going on.
If Sal goes down (I hope) then he will be third in a row to step down from that office. If by chance Rogers takes over then he is sitting on a keg of dynamite with his ongoing investigation. What is wrong with our elected officials? Is the addiction to power so strong that they cannot resist the urge to break our laws and peddle their influence? Neither party is exempt from this problem and something has got to be done. I think I speak for many when I say I have lost much faith in our pols and think this cycle will continue forever. I was reminded yesterday about Wilkerson’s predecessors Sen. Bolling and Sen. Owens having legal issues. And this is just MA pols, never-mind the national thieves (stevens, Jefferson…).
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p>When will true ethics reforms become a reality???
What has he been convicted of? At least could you hope for something that isn’t, well, anathema to the American judicial system? He not only could be innocent of whatever mythical charges that may or may not be brought against him, but he probably is, given the fact that it was the executive office that approved Cognos. So, hope for the truth to come out – innocence or guilt or whatever – but hoping for guilt and wanting to oust someone based on a perceived guilt just doesn’t seem a decent thing to me. Dare I say it, un American?
The emails between the Dept of Education fellow and his Cognos contacts, as seen in yesterday’s Globe, seem to tell a more complicated story re: the role of the speaker in the selection of Cognos. The original “trial contract” seems to have been approved by House Ways and Means, at least according to Estes’ story.
to seeing David sort everything out tonight at 8.
First Diane falls. Now we see the audacity of Sal. Innocent until proven guilty really challenges the imagination when it is cited on Beacon Hill.
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p>Sal are you taking lessons from Diane or did she take them from you?
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p>You work it girl! Keep throughing flak out there and sooner or later one will work. Maybe!?!
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p>P. S. Bye, bye; Sal!
it’s Dianne.
Oh snap!