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Stealing the Statehouse

Yes, A Legislator Can Be Arrested During Session and Other Fallacies

By Bill Britt
Alabama Political Reporter

MONTGOMERY—Rumors, rumors and more rumors. That is the state of affairs surrounding the Lee County Grand Jury.

One thing that most people are confident of is that Speaker Mike Hubbard is the central figure in the Attorney General’s white collar crime division investigation. The rumor du jour is that Hubbard cannot be indicted or arrested while the legislature is in session.

But, according to Alabama law that is not the case:

“Members of the legislature shall, in all cases, except treason, felony, violation of their oath of office, 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 shall not be questioned in any other place.” Art. IV, § 56.

If Hubbard were to be charged by the AG with a felony, or violation of their oath of office, he can be arrested.

Additionally, § 29-1-7, Ala. Code 1975, provides:

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“(a) Members of the Legislature of Alabama shall in all cases, except treason, felony and breach of the peace, be privileged from arrest and shall not be subject to service of any summons, citation or other civil process during their attendance at the session of their respective houses and in going to and returning from the same.”

“(b) Whoever knowingly and willfully denies to any member of the Legislature the privilege and immunity granted herein is guilty of a misdemeanor and, upon conviction, shall be punished by fine not exceeding $1,000.00 or by imprisonment for not more
than one year, or by both.”

However, they can be arrested while going to dinner, going to the gym, going to the grocery store, or other such activities. So, for the rumor mill to say that a legislator cannot be arrested during session, shows a tremendous lack of understanding of Alabama law.

Another questionable situation is Hubbard’s use of campaign finance contributions to pay his personal legal fees. According to an opinion issued in 2010 by AG Bill Pryor, the first question here is has Hubbard been charged with an offense?

The opinion states that use of the legal fees be “incurred pursuant to the defense of a criminal  prosecution”

Hubbard has not admitted that he has been charged with a criminal act. So, how does he justify using his campaign funds to “play offense” as his attorney J. Mark White has asserted?

Secondly, was the charge, if any, “reasonably related to performing  the duties of the office held?”

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The opinion cites 2 U.S. C. § 439a.:

“The Federal Election Commission has  ruled  in an advisory opinion that legal fees incurred pursuant to the defense of a criminal  prosecution relative to official conduct in office  m ay be paid from campaign funds.”   

For example, would taking a bribe from XYZ company to pass legislation friendly to the company be related to the performance of the duties of Speaker of the House? Several attorneys who did not want to be identified because they have work within the State House, found the assertion of taking a bribe being in the prevue of the execution of office laughable.

Finally, the opinion states that the campaign funds must be “Excess campaign funds.”

Hubbard has paid his legal fees out of currently raised funds.

These questions raise serious implications that Hubbard’s use of campaign funds, to say the least, is improper.

As for the rumors, there seems to be little to prevent Hubbard or any legislator from being charged during the period of the legislative calendar.

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Bill Britt
Written By

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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