Jose Luis Magana/AP Photo
Rep. Henry Cuellar (D-TX) walks from his office to the House chamber to vote, May 15, 2024, on Capitol Hill in Washington.
Let’s assume that the same considerations the Republican Supreme Court justices voiced when Donald Trump’s request for blanket immunity came before them might also affect their considerations of immunity for any crimes that New Jersey Sen. Bob Menendez and Texas Rep. Henry Cuellar (both now indicted for bribery) may have committed.
We’ll begin by noting that during the Trump oral arguments, these justices sought to make distinctions between crimes committed as president—and hence protected because it involves acting in an official capacity—and crimes committed while president, like stealing from the collection plate in church (unless, of course, those funds were then used to close the budget deficit, which would then become a crime as, rather than a crime while).
By this standard, Menendez and Cuellar have a strong case that their (allegedly) accepting bribes was clearly a crime as. After all, were they not members of Congress, those (alleged) bribes would not have been tendered. And after all, their subsequent actions to promote the policy results they’d pledged to help along in return for their (allegedly) taking those bribes were clearly undertaken as members of Congress.
If that’s not dispositive enough for these Supremes, consider their comments during the oral arguments in the Trump case that the laws Trump is alleged to have broken didn’t specifically reference the president as being subject to them. The same logic clearly applies to Menendez and Cuellar. Do the bribery statutes specifically single out members of Congress as subject to their strictures? And even if they do, do they specifically apply to members of Congress from New Jersey, or the border regions of Texas? No? Case closed!
But wait—there’s more! The justices also entertained arguments that even if convicted of a crime, the laws under which Trump would be found guilty weren’t “self-executing,” and thereby required additional congressional action to be put into effect. Surely, the same requirements must apply to sitting members of Congress. Even should Cuellar and Menendez be convicted and sentenced to jail, those sentences should be stayed, then, until Congress passes enabling legislation. Perhaps Congress may wish to appoint a committee of senators and representatives to escort C&M to prison, much as they appoint senators and representatives to escort presidents to the dais before State of the Union addresses. One wouldn’t want to leave such matters to the unelected bureaucrats of an overreaching administrative state.
But there are weightier issues in play here, as the Republican justices noted in considering Trump’s pleas for immunity. “We’re writing a rule for the ages,” Trump-appointed Justice Neil Gorsuch noted during oral arguments, then proceeding to bypass the particulars of Trump’s case (the January 6th attack on the Capitol, the effort to overturn the 2020 presidential election, and so on) to the more fundamental issues of whether future presidents might be held accountable for offenses, even on the flimsiest of charges.
By the same token, the consequences of not granting C&M immunity could result in future members of Congress shunning the input of their constituents, not to mention a marked decline in the campaign finances that power our government. Who’s to say where this could end? Such a ruling could deter future members of Congress from, say, accepting commemorative quilts or hearty handshakes of praise for their actions. Democracy itself might tremble in the face of such discouragements to popular feedback.
Finally, Congress is the subject of Article I of the Constitution, while the president is the subject of Article II. Originalists, take note!
There are, to be sure, some differences the Court might want to consider should C&M ask it to grant them the same kind of immunity that Trump sought. Trump, after all, appointed Justices Gorsuch, Kavanaugh, and Barrett, while Menendez, like virtually all Senate Democrats, voted against their confirmations, and Cuellar didn’t vote at all, as judicial confirmations don’t come before the House. I don’t think the justices would actually weigh such distinctions, but I note it here as a theoretical possibility.
