Scot Lehigh channels BMG; commits “speech and debate” gaffe

Scot Lehigh’s op-ed today calls on Speaker DiMasi to “come clean or go,” and urges that “if you can’t or won’t be candid and forthcoming, then you need to face this reality: It’s time to go.” Startlingly reminiscent of BMG’s call to the Speaker from a few days ago: “He’s got to put up, or step down.”

In any event, Lehigh’s column focuses mostly on the political aspects of the DiMasi/Cognos brouhaha. It does, however, make one brief foray into the legal morass into which I’ve been wading for the last few days — and gets it quite wrong. Here’s Lehigh:

[T]he decision to invoke constitutional privilege to withhold information from the Ethics Commission is hardly yours alone.

“Because the privilege is meant to protect the separation of powers, the ultimate decision rests with the House, not the individual,” notes attorney Harvey Silverglate.

With all due respect to Lehigh, and to Mr. Silverglate, the SJC has held precisely to the contrary in our old friend Coffin v. Coffin:

In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house; but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature…. Of these privileges, thus secured to each member, he cannot be deprived, by a resolve of the house, or by an act of the legislature.

It remains unclear whether Article 21 extends to the records DiMasi is attempting to shield. But it is clear that the privilege afforded by Article 21 is personal to DiMasi (and to every other individual legislator), and that “the ultimate decision” as to whether it may be invoked does not rest with the House.

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