It's going to come down to that sooner or later anyway. Her lawyer may advise her not to testify. In that case, we need criminal trials. Because if she can't respond to a Congressional hearing, then Cheney and Bush and other principles will not be able to answer questions in that milieu either.
I don't know how her Constitutional right to immunity for anything she says in Congress (because she is a member of Congress) would apply to protect her from prosecution for her testimony. In fact, I do not know to what extent her immunity as a member of Congress protects her from prosecution for anything related to her performance of her duties as a member of Congress (which could include her attendance at meetings at which torture was discussed).
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.
http://www.usconstitution.net/const.html#Article1The Constitution provides that members of Congress “for any Speech or Debate in either House … shall not be questioned in any other Place” (Art. I, sec. 6). This protection, which grew out of centuries of struggle between the English parliament and throne, grants immunity to members against civil or criminal action stemming from the performance of their legislative duties.
During the sixteenth‐ and seventeenth‐century reigns of the Tudor and Stuart monarchs, the Crown had sought to intimidate unsympathetic legislators through legal action. The English Bill of Rights in 1689 sharply limited this practice by providing that “the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.”
In the American Constitution, the Speech and Debate Clause, which protects legislators from punitive executive or judicial action, reinforced the separation of powers among the government's three branches. Interpretation of this clause has centered on a definition of “legitimate legislative activity.” Such activity had been commonly held to extend beyond debate on the floor of the respective chambers to include views expressed in committee deliberations and reports and to encompass the act of voting as well. In Kilbourn v. Thompson (1881), the Supreme Court gave this clause its broadest interpretation, defining protected actions as “things generally done in a session of
by one of its members in relation to the business before it” (p. 204).
http://www.answers.com/topic/speech-or-debate-clause
Do you remember hearing about Gravel v. United States during the recent Democratic primary?
Here is a discussion (one person's opinion) about that case:
On June 29, 1971 Senator Gravel convened a night-time meeting of the subcommittee on Buildings and Grounds, which he chaired, and placed the 47 volumes of the Pentagon Papers (a study of the causes and conduct of the Vietnam war) into the public record. The Justice Department commenced a grand jury investigation into possible criminal conduct in the release and publication of the study by Beacon Press and subpoenaed an aide to the senator. Senator Gravel intervened on his behalf and asserted that questioning the aide about his involvement in the committee hearing or the subsequent publication by Beacon Press contravened the Constitution’s “speech or debate” clause, which provides immunity to Members of Congress for their performance of legislative acts. The Court held that neither the Senator, nor his aide, could be questioned concerning their preparations for the hearing, communications between the Senator and aides relating to that meeting or anything said or done at the hearing. The Court also held that the grand jury could question the arrangements with Beacon Press concerning private publication of the Pentagon Papers because efforts to disseminate the study outside of Congress didn’t constitute protected legislative activity.
The Court protected the conduct of the hearing, even though the hastily convened night-time meeting was a none too subtle attempt to shield the dissemination of classified material, and even though such acts of dissemination, if performed outside of Congress, would be subject to criminal prosecution.
Under Gravel, Senator Rockefeller (nor any other member of Congress) need not have been either so secretive or reticent to use official channels to question the surveillance program, or for that matter any other subject of national security. Indeed, he could have officially communicated with relevant Executive officials, shared that correspondence with his colleagues on the Committee, or even taken to the Senate floor to speak about the issue. (Whether such conduct would have been consistent with Senate and Committee rules governing classified information would be a matter only for the Senate and could play no part in any Executive branch examination of his conduct). The "Speech or Debate" clause protection is based on its English antecedent, the product of several centuries struggle by Parliament to attain independence from the Crown. In this country it was adopted without debate at the constitutional convention to provide the same independence to legislators to be free from intimidation by the executive, or accountability before the judiciary.
The Rockefeller episode illustrates how too often legislators are cowed into acquiescence or timid supplications with respect to issues involving classified documents or matters by an aggressive or threatening Executive branch. Of course, over 30 year ago in a case eerily reminiscent of the current controversies, the Supreme Court laid to rest the notion that legislators could be questioned by the Executive branch for doing their job. Every member of Congress needs to read the Gravel decision to appreciate the broad constitutional protection they have been afforded by the Framers to inquire into the Executive’s administration of our national security apparatus.
http://communities.justicetalking.org/blogs/day09/archive/2008/01/11/speech-or-debate-clause-a-protection-for-legislators-conducting-national-security-oversight.aspx
So, one question is whether Pelosi is immune from prosecution.
Another is whether the executive actually had the authority to force her to remain silent about what was going on. I don't know the answers to either question. Does anyone else have any ideas?
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