Argentinians Cry Out “Cambiemos,” But Can They?

In early January 2018, five prominent Argentinian officials were arrested on corruption charges, including Amado Boudou, Argentina’s former vice president. These arrests come on the heels of President Mauricio Macri’s landslide victory on a “Cambiemos,” or “Let’s Change,” platform—a promise to root out public corruption. Late last year, Argentina’s Congress passed a new anticorruption law, which punishes companies for corruption by blacklisting them from public contracts and levying fines of up to five times the amount companies have obtained by illegal means. The new law also requires corporate compliance programs for the first time. But, while these reforms are welcome, the Argentinian judiciary remains an obstacle to genuine progress in eradicating the rot of corruption.

While the Macri government should be praised for making steps in the right direction, its efforts will fall short unless something is done about Argentina’s judicial system. More specifically, Argentina’s judicial institutions suffer from three problems that impede effective anticorruption efforts: Continue reading

The Right Amount of Legislative Immunity

It many ways, legislative or parliamentary immunity seems an anathema to the fight against public corruption. Legislative immunity shields legislators from prosecution for acts taken within their legislative ambit, sometimes even shielding them when those actions are corrupt. As my earlier post on Senator Menendez hints, even when it seems clear that legislators’ actions are not protected, the very existence of legislative immunity gives legislators room to argue and prolong their court cases – all the while continuing to serve in the legislature. Legislative immunity can undermine public confidence in lawmaking and perpetuate a sense of impunity in public officials.

That said, there is a reason most democracies have some form of legislative immunity: not because individual legislators should be shielded from prosecution, but because the legislature as an institution should be protected from intrusion and second-guessing by prosecutors and the judiciary. Of particular concern are politically-motivated prosecutions brought by the government against legislators from opposing parties. Turkey provides a recent example. This past May, Turkey’s legislature voted to lift parliamentary immunity and pave the way for prosecution of pro-Kurdish legislators accused of supporting terror (see here). While concerns about terrorism are very real in Turkey, this move falls clearly within President Erdogan’s broader efforts to consolidate power and move away from democratic rule.

Ultimately, both concerns about impunity and legislative independence are valid. The question is how to strike the appropriate balance. Legislative immunity can take many forms, and there is likely no single “best” model. The most appropriate form of legislative immunity will likely depend instead on a range of contextual factors. Here I consider several critical ones:

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Senator Menendez and the Great Speech or Debate Clause

The corruption allegations against Senator Robert Menendez (D-NJ) have the hallmarks of a classic Capitol Hill scandal. The Department of Justice’s Public Integrity Section indicted Senator Menendez last spring for allegedly using his official position to promote the business and personal interests of his friend and long-time donor Dr. Salomon Melgen, a Florida ophthalmologist. According to the allegations, Dr. Melgen provided Senator Menendez with lavish trips to Florida, Paris, and the Dominican Republic, as well as political contributions to allies. In exchange, Senator Menendez allegedly interceded with immigration authorities to help Dr. Melgen secure visas for his foreign girlfriends, sought to influence an administrative enforcement action against Dr. Melgen for $8.9 million in Medicare overbilling, and pressured the Executive Branch to intervene in Dr. Melgen’s contract dispute with the Dominican Republic.

Unsurprisingly, this legal fight has been ugly. Senator Menendez and his legal team have accused the prosecution of gross misconduct in the grand jury investigation, of “misapplying” and “making up from whole cloth” certain legal standards, and “disparaging defendants’ motives and defense counsel.” The prosecution, for its part, has accused the Senator’s camp of deploying “vituperation” instead of substance and of advancing “false factual premises and specious legal reasoning.”

The latest iteration of this saga is taking place at the appellate level, where the Third Circuit recently heard oral arguments on Senator Menendez’s assertion that his actions on behalf of Dr. Melgen are entitled to immunity under the U.S. Constitution’s “Speech or Debate” Clause (an argument the trial court rejected). The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” Like many legislative immunity clauses in other countries, the Speech or Debate Clause was born in part out of a desire to protect legislators from political prosecution for the views they express when legislating, and to encourage free and informed debate.

U.S. courts have interpreted the Clause quite generously over the years, reading it to cover not only actual speeches and debates, but also other “legislative acts” (such as voting on legislation, authorizing an investigation by a Congressional Committee, preparing reports, and holding hearings). Senator Menendez, however, argues for an even broader understanding of the conduct that qualifies as “legislative acts” shielded by the Clause. These arguments should be rejected. Not only are Senator Menendez’s claims legally dubious under existing precedents, but, if accepted, they would also hamstring the prosecution of classic quid pro quo corruption.

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