If the President does it, that means it’s not illegal.
–Richard Nixon, 1977
One of the most famous quotes to come out of the Watergate / Nixon era was the above quote, spoken during a set of interviews Richard Nixon did with David Frost. The quote sums up the attitude that Nixon seemed to hold: that executive power takes precedence over the rule of law.
We’ve now had a judicial decision in Frankfort that appears to apply the same logic to the legislative branch of our government.
On Wednesday, Franklin Circuit Judge Thomas Wingate ruled that House speaker-elect David Osborne did not have to testify in the case contesting Jim Glenn’s election to the House. The challenge has been brought by D.J. Johnson, who bypassed the normal recount process and appealed to the House to do the recount.
Anna Whites of the Glenn legal team had subpoenaed Osborne to testify about the use of House attorneys and House funds to pay for the challenge, contending that such use would be illegal. The judge ruled that the process Osborne was using was legislative business, and legislators cannot be compelled to testify about “legislative business,” a term that, as far as I know, is not accurately defined.
This is a troubling and far-reaching precedent. Essentially, the judge has said that whatever the members of the General Assembly do cannot be examined, even if illegal, if it can somehow be tied to legislative business.
There is no doubt that the recount process itself is legislative business. But breaking the law to carry it out? Breaking ethics rules? These are allowed now, as long as they are done somewhere in the Capitol building?
Suppose a legislator is bribed to vote a certain way on a bill. That’s obviously legislative business, so now that action is outside the reach of a subpoena? Or supposed that House leadership (of either party) uses LRC staff to do mailings that are obviously campaign-related, but talk about legislation. Is that also legislative business, and outside the reach of the courts?
If the judge had ruled that the subpoena dealt with a criminal matter, and needed to be enforced as part of a criminal trial, then the decision would be less troubling. But to rule that all actions of all legislators are outside the reach of the courts if they deal with “legislative business” is to put the actions of the General Assembly seemingly outside the rule of law and ethics. This ruling will come back to haunt Kentuckians in the future.
Because now, apparently, if the leaders or members of the General Assembly do it, that means it’s legal.