Americans have had to endure many insults to the Constitution in recent months and years. This week brought yet another, in the aftermath of the impeachment inquiry that recently began in the House: that is, the idea of the executive branch investigating members of Congress, hauling them into court, and criminally punishing them for things they say in legislative debate. The Constitution explicitly forbids this, and for very good reason.
Yesterday, in front of the world, the President made the following public claim about Representative Adam Schiff, chair of the House Permanent Select Committee on Intelligence (HPSCI): “they should look at him for treason.” When pressed on this bizarre claim at a subsequent press conference, the President did not disavow his earlier treason language, and stated that this was because Schiff “lied” when describing the President’s controversial July 25 phone call with Ukrainian President Volodymyr Zelenskyy. At a HPSCI hearing following release of a memo that summarized the contents of the call, Schiff attempted to paraphrase the relevant portions by stating what he believed was the real meaning behind the President’s conversation with Zelenskyy.
At no point did Schiff represent that this interpretation of the call was a literal description of it; indeed, Schiff stated explicitly that he was interpreting the “essence” of the President’s remarks, which were “in not so many words” (video of Schiff’s opening statement is available here, from PBS). Moreover, everyone already had access to the call memo at the time of Schiff’s summary interpretation, so it should have been obvious to anyone paying attention that he was not literally quoting the President. Nonetheless, the President said it should be “illegal” and “treasonous,” and earlier in the week, had Tweeted about Schiff’s speech, ending the Tweet: “Arrest for Treason?”
As is his habit, the President has completely and unapologetically misunderstood even the very basics of treason law. Every so often, I am compelled to post about this phenomenon (see, e.g., here and here). In fact, I have a new article forthcoming in the Hastings Constitutional Law Quarterly that addresses the problem of modern treason rhetoric (I don’t focus my criticism solely on President Trump — others are also offenders — but he plays a starring role nonetheles, because as President he oversees federal law enforcement, making his rhetoric uniquely problematic). However clumsy or inartful Schiff’s tactic may have been, Schiff did not levy war against the United States, nor did he “adhere” to any “enemy” of the United States by giving them “aid and comfort.” That ends the treason inquiry.
The Framers crafted a very narrow definition of treason and explicitly rejected things like compassing and lese majeste. Although President Trump’s behavior often seems to suggest that he views himself as the embodiment of the Nation, such that disloyalty to him is by definition disloyalty to the Nation, American treason law has never taken this view of the presidential office. And I am confident that no one in the Justice Department — not even the President’s most obsequious sycophants — would pursue this.
But set aside, for the moment, the President’s ignorance of treason law. The President was actually suggesting criminal investigation and potential prosecution of a member of Congress for speech that occurred in the course of legislative debate over a matter unquestionably within the House’s jurisdiction. But the Speech or Debate Clause of Article I, section 6 says that “for any Speech or Debate in either house, [Senators and Representatives] shall not be questioned in any other place.”
The Clause offers multiple protections for Members of Congress, and one of them is that Members cannot be sued or criminally prosecuted for actions that form “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings,” as well as acts “with respect to the consideration and passage or rejection of proposed legislation or with respect to matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625 (1972). Although the Supreme Court has placed some limits on the scope of the Clause, see, e.g., Hutchinson v. Proxmire, 443 U.S. 111 (1979), there is no question that Schiff’s statements in the hearing were plainly within the Clause’s protections. So while the Clause does not cover everything that a Member of Congress does, where it applies its protection is absolute.
The Clause has its origins in English practice, to prevent the monarch from using threats of official punishment as a way to intimidate Parliament and coerce compliance with royal preferences or demands. Josh Chafetz’s excellent Congress’s Constitution ably describes the history of the Clause and explains why it is significant: if members of Congress could be subjected to lawsuits or criminal prosecution for their legislative acts, their ability to have meaningful debate about important matters would be “seriously hampered” and their ability to confront the executive and judicial branches would be compromised. Imagine, for example, if President Trump could facilitate criminal prosecution of, or sue in tort, a Senator or Representative who did not accede to his wishes or who publicly criticized him. Real debate would be stifled, and the President would have effective control over the legislature. The Speech or Debate Clause safeguards the Congress against such intimidation and coercion, and thereby helps to ensure that Congress can perform its constitutional functions, including investigation and oversight of the other branches, without fearing official retribution from overzealous prosecutors or unfriendly judges.
What the President suggested this week — in addition to demonstrating a profound and dangerous misunderstanding of treason — is emphatically what the Constitution’s Framers sought to forbid. We should add to the President’s reading list not only the Treason Clause of Article III, but Article I, section 6, as well. Or, perhaps, the impeachment inquiry could also consider this new presidential offense against the Constitution.