Outside the Beltway

Can Cynthia McKinney be Arrested?

James Joyner · Thursday, April 6, 2006 · 3 comments

Jeff Quinton notes that Cynthia McKinney has issued a rather lame apology for her assault on a Capitol Hill police officer. What struck me as interesting, though, was that she has cited the first clause of Article I, Section 6 on her Website (note: I don’t see it now)

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.

Since she was going to and from the House, is she exempt from arrest? The plain language would seem to imply just that.

According to FindLaw, though,

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ”treason, felony or breach of the peace” is interpreted to withdraw all criminal offenses from the operation of the privilege. 379
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[Footnote 376] Long v. Ansell, 293 U.S. 76 (1934).

[Footnote 377] Id., 83.

[Footnote 378] United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).

[Footnote 379] Williamson v. United States, 207 U.S. 425, 446 (1908).

So, neither McKinney nor any other Member is free to assault people on their way to work. Not even the white ones. One would have thought that a mere technicality but it’s apparently a very good thing.