And this is why we have the Speech or Debate Clause

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.

 

Would the Speech or Debate Clause protect a sitting Senator in confirmation hearings for a Cabinet post?

With the news that at least one poll shows a majority of Americans believe that Attorney General Jeff Sessions committed perjury and should resign, the question of General Sessions’s criminality has not yet entirely died, though it has weakened significantly since the President’s tweet about being “wiretapped” by President Obama.  As I explained previously here, I am confident that no prosecution will result.  Still, the lingering question about whether he lied to Congress and what his answers meant raises — as I mentioned last time — another interesting issue: because he was a United States Senator when he met with the Russian Ambassador, and when he testified at his confirmation hearings, would the Speech or Debate Clause of Article I, section 6 protect him from prosecution arising from his confirmation testimony?

To be clear, I think he is safe from prosecution, but for other reasons.  So here is my admittedly quick and ugly Speech or Debate Clause analysis.  Steven Calabresi has a very good piece here at The Hill, and Michael Stern has a characteristically thoughtful piece here at Point of Order.  I could be wrong about this particular constitutional problem, so, as always, I welcome other wisdom.

The Speech or Debate Clause says that for “any Speech or Debate in either House,” a Representative or Senator “shall not be questioned in any other place.”  It covers more than floor speeches, but it only protects “legitimate legislative activity,” according to the Supreme Court.  Activities beyond floor speeches, “must be an integral part of the deliberative and communicative processes” by which Senators and representatives fulfill their constitutional functions.  See Hutchinson v. Proxmire.  It is arguable that when then-Senator Sessions met with the Russian Ambassador in Cleveland, this was not a legislative act protected by the Clause.  That, of course, might depend upon what they discussed, which we do not know.  But a stronger argument exists that the meeting in Sessions’s Senate office was covered by the Speech or Debate Clause to the extent that it related to his work on the Armed Services Committee or otherwise to American foreign policy.  Of course, as the Court said in Gravel v. United States, not every act that is performed by a Senator or Representative, even in his official capacity, is a protected act.  See also United States v. Brewster.  But let us assume for the sake of this piece that each meeting was within the sphere of legitimate legislative activity covered by Article I, section 6.

Then there is the question of his testimony: would his testimony before the Judiciary Committee be protected?  I think not, because his testimony before the committee did not constitute an integral part of his legislative functions as a Senator.  So while his questioners would be protected because they were fulfilling their constitutional role of advice and consent, Sessions’s statements before committee were unrelated to his constitutional role as a Senator and therefore not “legitimate legislative acts.”

So here’s the problem: the Sessions controversy does not concern a prosecution for the meetings themselves; it concerns his testimony about those meetings.  Could it be, then, that as long as an activity is within the scope of the Speech or Debate Clause, a Representative or Senator does not have to truthfully answer questions about that activity under oath in a congressional committee?

It’s a complicated issue.  First, the Clause is essentially a separation of powers provision.  It protects the legislative branch against vindictive or abusive prosecutions by the executive branch.  See Gravel.  It also constitutionalizes a testimonial privilege, id., so that even the judiciary cannot compel a Senator or Representative to give over testimony or evidence arising from his or her legitimate legislative acts.  But in the Sessions case, the questioning was not done by the other branches.  It was done by the Senate itself.  Not only do the words “any other place” suggest that the Clause does not forbid questioning by the legislative branch, the separation of powers concerns underlying the Clause also suggest that the Clause should be read to limit only the executive and judicial branches from questioning members of Congress.

So one plausible reading of the Clause, based on both text and history, is that it does not forbid a Senator from questioning another Senator about his or her legislative acts and using those answers as a ground for decision-making.

This raises the next problem: while it is true that the initial questioning was done by the legislative branch, a perjury or false statements prosecution would be done by the executive, and would use his answers about a legislative act as evidence.  Is that forbidden?  This is much trickier.

The Court has said that the Clause would be undermined by admitting against a Senator or Representative evidence that references a past legislative act.  See United States v. Helstoski.  Still, if my premise above is correct, then one could argue that the evidence of Sessions’s alleged criminality derives from a proceeding in which he lacked the protection of the Speech or Debate Clause.  Again, using this line of argument, he had no testimonial privilege under the Clause when answering either Senator Franken’s question or Senator Leahy’s.  Therefore, on this line of argument, his answers to those questions — quite apart from the substance of his meetings with the Ambassador —  should be admissible against him.  I confess, though, this is a harder problem because it means using evidence (his testimony) concerning a presumptively (for these purposes) legislative act, which the Supreme Court has expressly forbidden.  If his meetings with the ambassador were legislative acts, then there is a good chance, as others have argued, that the Clause would forbid the Justice Department from using any evidence about those meetings, even derivative use.

A final question arises, though it is a different one than I have addressed above: can the Speech or Debate Clause protection be waived?  If his activities were protected, did Sessions waive the privilege by voluntarily testifying about those activities?  The Supreme Court assumed, without deciding, in Helstoski, that the Clause could be waived.  But the Court said even if a waiver is appropriate in this context, it requires “explicit and unequivocal renunciation” of the Clause’s protection.  See Helstoski (also describing the standard as “clear and unambiguous”).

In Attorney General Sessions’s case, if the above analysis is correct, it might be unnecessary to decide whether he waived the privilege because, at least in the Judiciary Committee, he did not have its protection in the first place (and thus there was nothing to waive).  But in an ordinary legal proceeding in which he was subject to questioning (under oath or not), or investigation, what would such a waiver look like?  Based on the language in Helstoski, it would seem not encompass implied waivers (such as in the Miranda context; in fact, the standard is more like invocation, rather than waiver, in the Miranda context).  So if, arguendo, Sessions had the protection of the Clause, merely agreeing to answer questions would not be adequate for a waiver of Speech or Debate protection.  He would have to offer a clear and unambiguous statement that he was not relying on the protections of Article I, section 6.

Still, the threshold question is the most important one: were Sessions’ meetings with the ambassador legitimate legislative acts?  To know that, in this context, we would have to have evidence of what was discussed.  Barring testimony from someone else, or some other evidence, it is almost as if, to establish protection under the Clause, Sessions would have to agree to reveal the substance of the meetings.  In other words, Sessions would have to agree to waive the Speech or Debate privilege in order to assert its protections.  To avoid this dilemma, it might be better to simply start with the presumption that the meetings were covered by the Clause — but nothing in the Supreme Court’s cases suggests that such a presumption applies to any and all acts by a sitting member of either house.

Again, this problem is of mostly academic interest, for now.  Still, given the frequency with which members of Congress are nominated for Administration posts, it is a problem worth considering in future confirmation hearings.