They must be arguing she comes under “breach of the peace.” US Constitution, Article 1, Section 6 ….
Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, 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.
Now, one of the things that separates the US from a lot of other democracies is that legislators don’t have broad immunity from prosecution. And that’s a very good thing — especially since there’s little history of the more crass sort of police state political prosecutions in this country and thus little risk that outweighs the danger of allowing corruption to run unchecked. But, honestly, I didn’t remember this passage in the constitution until TPM Reader SS sent it in. Setting aside the particulars of this case I’m curious whether there is much jurisprudence or case law on what this particular passage means.
If McKinney is guilty of battery or resisting arrest of something. My sense, from a constitutional perspective, is that the DC police should be handling it. Something doesn’t feel right about the capitol police proceeding against a member of Congress in this fashion, both for substantive reasons and because of shenanigans by folks in the majority. Anyone out there have any insight on this?
Late Update: This legal analysis at Findlaw suggests that this passage does not apply to criminal infractions and is, for all intents and purposes, a dead letter.
