[Congressional Record (Bound Edition), Volume 149 (2003), Part 9]
[Senate]
[Pages 12300-12301]
[From the U.S. Government Publishing Office, www.gpo.gov]




                AUTHORIZING LEGAL COUNSEL REPRESENTATION

  Mr. WARNER. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of S. Res. 148 which was 
submitted earlier today and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The assistant legislative clerk read as follows:

       A resolution (S. Res. 148) to authorize representation by 
     the Senate Legal Counsel in the case of John Jenkel v. 77 
     U.S. Senators.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. WARNER. Mr. President, I ask unanimous consent that the 
resolution and preamble be agreed to, the motion to reconsider be laid 
upon the table, and any statements relating to this matter be printed 
in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 148) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

[[Page 12301]]



                              S. Res. 148

       Whereas, in the case of John Jenkel v. 77 U.S. Senators, 
     No. C-03-1234 (VRW), pending in the United States District 
     Court for the Northern District of California, the plaintiff 
     has named as defendants seventy-seven Members of the Senate;
       Whereas, pursuant to sections 703(a) and 704(a)(1) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a) 
     and 288c(a)(1), the Senate may direct its counsel to defend 
     Members of the Senate in civil actions relating to their 
     official responsibilities: Now therefore, be it
       Resolved, That the Senate Legal Counsel is authorized to 
     represent the Members of the Senate who are defendants in the 
     case of John Jenkel v. 77 U.S. Senators.

  Mr. McCONNELL. Mr. President, these resolutions concern pro se civil 
actions commenced in the United States District Court for the Northern 
District of California by the same plaintiff. The first resolution 
concerns a suit that the plaintiff has brought against seventy-seven 
Members of the Senate claiming that their votes approving the joint 
resolution authorizing the use of military force against Iraq violated 
the law. Included among the 77 defendants plaintiff has sued are the 
new Members who were not even in the Senate at the time of the vote on 
the resolution authorizing the use of force.
  This suit is without merit as the court has no jurisdiction over the 
matter and the Speech or Debate Clause bars suits against legislators 
for the performance of their legislative duties under the Constitution. 
There is simply no legal basis for suing Senators for their role in 
authorizing the use of military force against Iraq. While a Senator's 
vote on whether to authorize the use of military force by the President 
is an appropriate subject for political debate, it cannot be the basis 
for filing a lawsuit against the Senator in court.
  The second resolution concerns a lawsuit filed by the same plaintiff 
against Senator Frist for allegedly failing to schedule for 
consideration by the Senate the repeal of provisions enacted as part of 
the Homeland Security Act of 2002. This suit is also without any merit 
as the court has no jurisdiction over the matter and the suit is barred 
by the Speech or Debate Clause. Senator Frist's decisions on the agenda 
and schedule for the legislative business of this body do not present a 
justiciable issue for the courts.
  These resolutions authorize the Senate Legal Counsel to represent the 
Senate defendants in these two actions.
  Mr. REID. Before we go into the quorum call, I ask unanimous consent 
that I be allowed to speak as in morning business.
  The PRESIDING OFFICER. The Senator from Virginia has the floor.
  Mr. WARNER. I yield the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.

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