McDade tests whether courts can try a congressman

June 02, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun Contributing writer Nelson Schwartz provided information for this article.

WASHINGTON -- Any day now, a year after a Pennsylvania congressman's bribery case was due to go to trial and two years after he was charged, a federal appeals court in Philadelphia is expected to decide whether he may be tried at all.

The case of Republican Rep. Joseph M. McDade of Clarks Summit, Pa., illustrates the time it can take to prosecute a member of Congress for alleged wrongdoing in office -- the kind of delay that appears likely to slow the Justice Department's newly filed case against Democratic Rep. Dan Rostenkowski of Illinois.

The prosecutor who sought the indictment of Mr. Rostenkowski, U.S. Attorney Eric H. Holder Jr., used the McDade case Tuesday to illustrate to reporters why he could not estimate how long it would take to get to a trial of Mr. Rostenkowski.

Indicted in May 1992

Mr. McDade has been under indictment since May 1992 and was due to go to trial last June.

His plea to dismiss the charges, based on a claim that the Constitution gave him legal immunity for activities he performed as a legislator, was denied by the trial judge in May 1993. That issue is on appeal to the 3rd U.S. Circuit Court of Appeals in Philadelphia.

Prosecutors and defense lawyers have said that it is likely the McDade case ultimately will go to the Supreme Court before any trial can be held. That could take another year or more. Mr. McDade, 62, is one of the most powerful Republican members of the House, just as Mr. Rostenkowski is one of the House's most influential Democrats.

Mr. McDade is the top-ranking Republican on the House Appropriations Committee; Mr. Rostenkowski has been chairman of the House Ways and Means Committee.

Both are able to continue serving in the House while facing criminal charges.

Supreme Court ruling

The Supreme Court ruled in 1969 that it would be unconstitutional for Congress to add any qualifications for membership in Congress beyond the few spelled out in the Constitution. That means that Congress cannot refuse to accept a member who has been charged with a crime.

The Constitution, though, does allow the House or Senate to expel a member for "disorderly behavior" -- providing it wins a two-thirds vote.

But there is a difference in Mr. McDade's status as a key committee leader and Mr. Rostenkowski's: Mr. Rostenkowski had to give up his chairmanship immediately after being indicted Tuesday, but Mr. McDade has not faced a similar loss of position.

The House Republicans, like their Democratic counterparts, require their members to give up committee leadership positions after being indicted. But when the GOP lawmakers adopted their rule in August, they made an exception for Mr. McDade, so he still holds the position as ranking member of the Appropriations Committee.

Running for re-election

Mr. McDade, who has represented the Scranton-area's 10th District since 1963, was re-elected two years ago by a margin of more than 90 percent. He is running for re-election this year, after being renominated without opposition in the state's primary election May 10.

A federal grand jury on May 5, 1992, accused the Pennsylvanian of five charges of bribery, racketeering, and an illegal conspiracy.

Prosecutors contended that he used his influence on the Appropriations Committee and its defense subcommittee to obtain $100,000 in campaign contributions, vacations, honorariums and gifts, including $7,500 to pay college tuition for his son, Joseph Jr.

Nicholas Harbist, the assistant U.S. attorney in Philadelphia, said yesterday the trial mainly has been delayed by the dispute over Mr. McDade's claim to immunity.

Limited immunity

Under the Constitution, members of Congress "shall not be questioned in any other place . . . for any speech or debate in either" the House or Senate. The Supreme Court has said that this provides legal immunity only for legislative actions.

Mr. McDade's defense lawyers early last year asked U.S. District Judge Robert S. Gawthrop III of Philadelphia to dismiss the charges against him.

He argued that prosecutors relied upon legislative actions by Mr. McDade and based the racketeering charges on a conclusion that lobbyists viewed his legislative influence as a reason for giving him money. This, the defense alleged, crossed the line into protected "speech or debate" activity.

Judge Gawthrop rejected that challenge May 6 last year, and set a trial for last June. The trial was postponed automatically when Mr. McDade appealed the immunity issue. The Circuit Court held a hearing Dec. 2.

Most rulings by trial judges on pretrial issues cannot be appealed until the trial is over and a verdict is in.

But a judge's decision on the congressional immunity issue may be appealed immediately, according to a 1979 Supreme Court decision.

Lawyers in the case said they had expected a ruling by March, but the appeals court has yet to announce a decision.

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