America's Criminal Class - Part IV
Robert Byrd: Invoking an ancient rule to avoid a modern law
By the staff
of Capitol Hill Blue
August 19, 1999
In early May, Senator Robert
C. Byrd, a longtime and powerful Democrat from West Virginia, was
following a van too closely on U.S. Route 50 in Fairfax, Virginia,
when the van stopped for traffic.
Byrd's 1999 Cadillac slammed into the rear of the van. It took
a tow truck more than an hour to pry the vehicles apart.
Byrd's car was not drivable and suffered an estimated $7,000 in
damage. The driver of the 1990 Ford Econoline van, Chris Lee, 42,
a house painter from Fairfax, said he didn't hear any sounds indicating
that Byrd hit the brakes or swerved.
"Just boom," Lee said.
The Fairfax County police officer who investigated the accident
had started to write the 81-year-old Senator a traffic ticket when
Bryd pulled a copy of the U.S. Constitution out of his pocket and
pointed to a section that he said the cop prevented the cop for
ticketing him for anything because he, as a member of Congress "shall
in all cases, except treason, felony and breach of the peace, be
privileged from arrest" both while attending a session and
traveling to or from the Capitol.
Byrd spokeswoman Ann Adler says the Senator, an acknowledged Constitutional
scholar, "almost always has one (the Constitution) in his pocket."
Byrd was taken to the nearby Fair Oaks police station where the
shift commander put in a quick call to Fairfax Commonwealth's Attorney
Robert F. Horan. Horan told the cop that if the Senator wanted to
claim Congressional immunity for the ticket, the cops would have
to honor it. With everything else that had happened in Washington
in recent months, a traffic accident probably couldn't be classified
as "treason, felony or breach of the peace."
Horan said he was familiar with the immunity clause -- Article
1, Section 6, of the Constitution -- because he had encountered
it once before during his 32 years in office. Another member of
Congress, also from West Virginia, invoked the clause to escape
a speeding ticket 20 years earlier.
The constitutional provision was written in 1781 to protect members
of Congress from harassment as they traveled across the country
(usually by horseback), and to discourage people from trying to
prevent the members from casting unpopular votes.
Constitutional scholars say that while the law has little use in
modern times, it is often used by Washington area police as a way
to avoid arresting members of Congress.
"It's a common misconception that it (the law) prevents ticketing,"
says Georgetown University professor Paul Rothstein. "Police
departments in this area are frequently under that misapprehension.
I think it's a way to do a favor for people of influence and stature,
but it does smack of unequal treatment under the law."
"I've stopped Senators who were so drunk they couldn't remember
their own name," says one Fairfax County police officer. "And
I was ordered to let them drive home."
During late-night Congressional sessions, Representatives and Senators
often spend time between votes in the private Republican and Democratic
clubs or any of a dozen other Capitol Hill watering holes. One Capitol
Hill police officer says he has had to jump out of the way more
than once to avoid being run down by a drunken member of Congress
roaring out of a House office garage.
"But there's not a damn thing I can do about it," he
says, "Not if I want to keep my job."
Sgt. Joe Gentile of the D.C. police admits city police do not issue
traffic tickets to senators and representatives while Congress is
in session. Alexandria and Montgomery County claim members of Congress
receive no special treatment for traffic violations, but records
show 47 members were released without tickets last year. Arlington
and Prince George's county refuse to reveal their policies, but
records show members are rountinely released without charge in both
Members of Congress feel no compulsion to obey the law. District
of Columbia police issued 2,912 parking tickets to cars owned by
members of Congress in 1998. None were paid. The financially strapped
District, which actively pursues and "boots" cars belonging
to ordinary citizens, does not go after members of Congress.
But Representatives and Senators are not the only privileged class
in Washington. More than 20,000 foreign nationals living and working
in National Capital area carry cards issued by the U.S. Department
of State that grants them "diplomatic immunity" from arrest
For years, members of Congress exempted themselves from many of
the laws they passed for the rest of the country. Most bills carried
a statement that said, "Exempted from the provisions of this
act shall be the legislative and executive branches of the federal
government." The exemptions allowed, among other things, members
to work employees for long hours without overtime or to discriminate
on the basis of sex, political affiliation, age or other reasons.
The federal Occupational Health and Safety Administration (OSHA)
can shut down a private company for safety violations, but OSHA
has no jurisdiction over Congressional buildings and inspectors
are not even allowed on Capitol Hill.
Changes made after Republicans took control of Congress in 1995
were supposed to bring Congress into compliance with the laws that
governed the rest of the nation, but those who work on the Hill
say little has changed.
"Congress is America's last plantation," says former
GOP staffer Jonathan Luckstill. "Staffers are still used to
run personal errands for members, women staffers are hired on the
basis of looks and can be fired on a whim," he says.
"There really isn't much recourse," Luckstill adds.
Sometimes, however, recourse comes through hindsight. A week after
he claimed Congressional immunity for his traffic accident, West
Virginia Senator Robert C. Byrd's staff contacted the Fairfax County
police and told them to reissue the ticket.
So the cops again called Commonwealth's Attorney Horan.
"I said, if you can waive your rights under the Fifth and
Sixth amendments you certainly can waive your rights under Article
One, Section Six," Horan said "If the senator wants his
day in court, he's entitled to it."
So the Senator got his ticket and appeared in court on July 19,
pleading "no contest" on a charge of failing to keep control
of his car. The judge levied $30 in court costs, but Bryd was not
fined, a sentence that observers said was unusually light for a
Fairfax County traffic court that is known to be tough on first-time
Even when he tried to act like a normal citizen, a member of Congress
still got a break.
(This report was coordinated and written by Capitol Hill Blue
editor Jack Sharp with assistance from researcher Marilyn Crosslyn
and private investigator James Hargill.)
Tomorrow - Wrapping it up. What it all means.