A Word on the Rep. McKinney Matter

Orrin Kerr speculates plausibly that if Rep. McKinney is charged with an offense relating to her much-disputed altercation with the Capitol Police, it will be a simple misdemeanor, but that it won’t happen

Will the U.S. Attorney’s Office charge McKinney with a federal crime? If she is charged, I gather the offense would be a misdemeanor simple assault under 18 U.S.C. 111(a) or 18 U.S.C. 113(a)(5). I don’t know who makes these sorts of calls within the U.S. Attorney’s Office, or what kinds of cases the U.S. Attorney’s Office in D.C. tends to pursue. As a result, I can only offer amateurish speculation. My amateurish speculation, for what it’s worth, is that the U.S. Attorney’s Office will decline prosecution. Three major reasons: First, McKinney was apparently on official business as a member of Congress at the time, and was well within her rights to enter the building without passing through the metal detectors. Second, the officer apparently wasn’t hurt. Third, the story is already a media circus, and will only become much more of a circus if McKinney is charged.

All that makes sense, but I see it differently: I think it’s a felony or nothing. Why? Art. I, sec. 6 of the Constitution privileges Representatives’ and Senators’ access to the chamber:

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.

For reasons sounding in British history, it was thought important that the executive branch lack the power to block members’ access to the floor. Thus, unless the US Attorney is willing to charge McKinney with felony assault — not an obvious charge under the circumstances — I predict she will win any trial on Constitutional grounds.

It’s true that grabbing hold of McKinney was not an “arrest” in the most common modern sense of “you are going to jail” but it was an “arrest” in the sense of “halting your progress”. (For what little it’s worth, the first OED entry for the noun form of arrest is “The act of standing still, halting, or stopping; stoppage, stop, halt, delay.”) And it’s clear to me that the goal of this Constitutional provision is unimpeded access for our lawmakers — allowing the police to block entry to the Capitol without actually dragging Congresspersons off to the hoosegow would gut this important guarantee that the the executive may not prevent the legislature from meeting.

PS. Might you call it “breach of the peace”? I don’t think so – it’s undisputed that she didn’t start it, and if the cops can stop a Representative who in protesting becomes a “breach of the peace”….

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16 Responses to A Word on the Rep. McKinney Matter

  1. “[T]he terms treason, felony and breach of the peace, as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminall offenses . . . .”

    Williamson v. United States, 207 U.S. 425, 446 (1908).

    “History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only.”

    Gravel v. United States, 408 U.S. 606, 614 (1972).

  2. Michael says:

    Yes, there’s a fair amount of law that this clause isn’t a ‘get out of jail free’ card, and also that it doesn’t operate to privilege members from, say, judicial subpoenas.

    I suggest, however, that these cases are distinguishable from the case of a member actually trying to get into the building and whose only offense was not to stop when asked, or to push off a cop violating her right to enter.

    I recognize a contrary argument: the evil is excessive force, and that excess isn’t privileged. But I dispute the claim implicit in your citations, which is that the privilege is irrelevant here. Williamson is a corruption case about a congressman who was accused of “subornation of perjury” relating to a land deal. Gravel concerned a grand jury subpoena to a congressional aide (it was a very political prosecution, too, for an alleged security breach in arranging the private publication of the Pentagon Papers…after they had been read into the Congressional Record).

  3. bricklayer says:

    You make an interesting point that jurisdiction over the matter and appropriate charge, if any, is a cloudly legal area. But even assuming a valid constitutional immunity defense, are you defending the congresswoman’s behavior? I don’t understand why blue-collar folks like the UNICCO employees deserve liberal sensitivity and the benefit of the doubt, whereas the security guard just doing his job is being branded a racist stormtrooper.

    I don’t find her reaction to the security guard so terrible, every airline passenger would love to do the same or worse to the TSA simpletons. You are misreading conservatives if you think it was merely the initial act of a democrat that has drawn condemnation.

    It was nonetheless uncivil behavior, for which she should apologize. Instead, the “KKK-is-everywhere” troops have been rallied and now the likes of Harry Belafonte and Danny Glover are crying racism. Liberal legal scholars are even now trying to craft this into some kind of rediculous notion that that executive is trying to stop the legislature from functioning, and that this is some kind of foreboding precedent.

    The Capitol is surely a terrorist target, and DC is filled with nutjobs anyway, so security is tight. She got held up and lost her temper. This was no socio-racist-political event. It was everyday life. She lost her temper, nobody was seriously injured…if she had just apologized this would have never been a story. Say sorry and play nice from now on. They say Bush has a hard time admitting when he makes a mistake, but how is this any different?

  4. Michael says:

    I don’t believe I expressed any view as to the underlying merits and I am quite sure that I don’t have enough reliable facts to form one. (Please don’t put words in my mouth.)

  5. passerby says:

    Bricklayer, as usual, spins it. Not only isn’t there a gram of politics in Prof. Froomkin’s post (or subsequent comments), but Rep. McKinney showed absolute respect for the police’s work and *deeply regretted* the incident, on her website, the very same day:


  6. Thomas says:

    Note that the Capitol Police don’t work for the executive; they work for Congress.

    So, on Michael’s reading of the law, one lawmaker might assault another, and, so long as that assault falls short of a felony, the assaulting lawmaker would be free from the risk of prosecution.

    If that’s not right, then Michael would need to explain why an agent of the Congress would be accorded less respect than another member.

    I would think that the Congress is perfectly capable of setting procedures for admission to the Capitol, including rules for its members. You suggest that that’s not the case, for constitutional reasons. So now there’s some constitutional “right to enter” the Capitol that overrides the power of the Congress to set its own rules. Without even an argument–it’s enough to simply say it. How odd.

  7. bricklayer says:

    “Please don’t put words in my mouth.”

    Given how prone this blog is to crucifying conservatives based on the flimsiest of cases, not to mention frequent ponderance of tin-foil-hat conspiracy theories, how can you feel justified in making such a request?

    I read your post as an implied (albeit couched) defense of the congresswoman, as if irregardless of the simplest of common-sense security measures (wearing a pin) she had an absolute right to enter the chambers. I read it as a veiled attempt to champion her as some kind of civil rights hero when the incident demonstrated nothing more than a quick-temper.

    You can trumpet your post as merely the hypothetical musings of a law professor, but your regular readers know you better.

  8. Michael says:

    Thomas has a point: the fact that the Capitol Police serve at the pleasure of Congress is something that I hadn’t taken due account of.

    If each house is free to make its own rules — with the extent (if any) of even minimal due process review still an unsettled question — it might well follow that the Speech and Debate clause shouldn’t be understood to speak to their behavior in fixing rules regulating the entry and exit of elected officials. Although it’s a much, much closer question than the one I addressed above, I think I’d still want to read the words “in all Cases” to include actions approved by one or both Houses.

    The key to the argument would be that the Constitution spells out a specific procedure by which either chamber can suspend a member, and that allowing any other means of keeping them from the floor would in effect open an end run around that procedure. Certainly that’s a pretty good formalist argument, but it is only an adequate purpositive argument, and thus not as compelling as one could wish (it’s better when it works well both ways).

  9. william says:

    Passerby accuses Bricklayer of spinning it, yet he says McKinney “showed absolute respect” for the Capitol police and “deeply regretted” the incident that very day. Give us a break–that was her spin doctor’s makeover, and insincere at that. She has done nothing whatsoever to calm the predictable, race-based firestorm from the left and the minorities. In fact she has since made a media circus out of it by fawning to those like Belafonte and others who use any opportunity to assault this country and the majority. Any other white member would have been treated the same way when trying to skirt the line and/or without a pin. She has proven herself no different than any number of black politicians who are always ready to throw down the tired and worn race card when faced with vanilla facts.

  10. bricklayer says:

    Under your theory, could she have shot (and killed?) the guard who “arrested” her, so as to secure her right of congressional attendance, and still win on constitutional grounds? Battery OK but shooting not OK? Could she have climbed the roof, chiseled a hole in it, and fast-roped down into her seat like a ninja, and win a charge of destruction of federal property on constitutional grounds?

  11. Eli Rabett says:

    This is far from the first time this issue has arisen, most recently http://www.c-span.org/questions/week145.asp

  12. Ryan Walters says:

    And it’s clear to me that the goal of this Constitutional provision is unimpeded access for our lawmakers — allowing the police to block entry to the Capitol without actually dragging Congresspersons off to the hoosegow would gut this important guarantee that the the executive may not prevent the legislature from meeting.

    For what it’s worth, McKinney was attempting to enter the Longworth House Office Building, not the Capitol itself. See this article in The Hill. Her office is in Cannon.

  13. Michael says:

    Oh, I think we can certainly treat the offices as the functional equivalent of the chambers themselves; that is where they do most of their work (it’s the same logic that leads courts to extend the Speech and Debate Clause to protect parts of what staffers do).

    Bricklayer’s hypo about the the Representative who shoots a pesky police officer is a good one. It is in fact the sort of thing I had in mind when I wrote earlier noting the “contrary argument: the evil is excessive force, and that excess isn’t privileged.” I didn’t refute it then, and I wouldn’t now. I’ll say it more clearly: excessive force isn’t privileged.

    But the interesting question is what is “excessive” under these circumstances. I don’t think the line is the same in these circumstances as it would be if one of us were stopped. If I’m stopped by a Capitol Cop, I have basically no right to resist arrest at all even if the stop is utterly spurious (I suppose if he tries to kill me without provocation I have a right to self-defense, but try selling that to the jury…). If the privilege works like I have been suggesting, then I think that Senators and Members of Congress are in a different position: arguably, they do have a right to resist arrest. In which case, I suppose that the force allowed is merely that proportionate to the need. Plus reasonable doubt.

    (I suppose I should say again that I haven’t paid much attention to the actual facts such as we know them, so I’m not expressing a view on the amount of force used by either party–and indeed don’t know what they were. What interests me is what the legal rule is or should be.)

    PS. I recommend the c-span site noted by Eli Rabett — lots of interesting background.

  14. Thomas says:

    See Williamson v. U.S.


    This is the case mentioned in the c-span bit. A very good discussion of the issue. A conclusion that I found surprising.

  15. Joe says:

    Three points:

    1) The Capitol Police force in DC has the fewest number of non-white supervisors of any police force, federal, county, or state, in the National Capitol region.

    2) Terry Gainer, chief of the Capitol Police force, has known issues with minority members. That’s the real reason that Gainer left the Washington Metropolitan Police Force at the time he departed.

    3) Cynthia is a flake, but the people have the right to elect flakes. Tom Delay, Bob Ney, Bob Trafficant, ad nauseum.

  16. Brett Bellmore says:

    Nothing in the Constitution says she couldn’t be prosecuted for this. Merely that she can’t be arrested for it while the chamber is in session. They could, hypothetically, wait around with cuffs, and slap them on her the instant the chamber adjourns.

    Not very likely, of course, since members of Congress enjoy a level of immunity far beyond any that the Constitution implies, due to their status as, well, more equal than the rest of us.

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