I imagine that future historians, when pondering the failure of the American Republic, will find it strange that a number of Republican elected officials sought to avoid accountability for their role in the failed coup of 2020 by referencing a protection that traces its roots to the 1689 English Bill of Rights. How did truth and accountability come to be constrained by a 330-year-old copypasta designed to protect the Lord of Bumblemuckshire from a tyrannical king? Yet here we are, with Republicans like Trump-boot-licker Lindsey Graham arguing that the Constitution’s Speech and Debate Clause grants him immunity from a lawful subpoena asking him to testify about his role in Trump’s apparent attempt at election fraud in Georgia.
The Speech and Debate Clause appears in Article I, Section 6 of the Constitution. It reads: “The Senators and Representatives…shall in all Cases, except Treason, Felony 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, they shall not be questioned in any other Place.” It means that members of Congress cannot be arrested or sued because of statements they make or actions they take as part of their legislative duties. It can be traced back to the Bill of Rights that was signed after the English Revolution to ensure that the new monarchs didn’t follow the old monarchs’ handbook of arresting legislative bodies or trying legislators for treason. In 1689, preventing the king from rounding up members of Parliament and throwing them in a dungeon was a pretty big deal.
In present-day America, however, we’re not talking about the Speech and Debate Clause because Joe Biden is threatening to put Kyrsten Sinema in jail until she detoxes from all the Big Pharma money she’s addicted to. Instead, the clause is in the news because a number of Republican members of Congress and the Senate are in the hot seat for their insurrection-related activities. There’s debate about whether some could face prosecution; others are already being asked to testify. In both cases, there’s chatter about whether the the Speech and Debate Clause shields them from either of those eventualities—prosecution or testifying.
The latter possibility is the reason Lindsey Graham is testing the limits of the clause. Graham was subpoenaed by Fulton County DA Fani Willis to testify about his role in helping Trump try to pressure Georgia Secretary of State Brad Raffensperger into “finding” 11,000 more votes so Trump could win the election. In court documents, Graham claimed total legal immunity from this inquiry; he said his actions, which allegedly included getting on the phone with Raffensperger, were part of his legislative duties and were thereby protected by the Speech and Debate Clause. He asked the court to “quash” (which means dismiss) the subpoena.
The district court rejected Graham’s request for total immunity, ruling that Willis was looking at post-election activity that likely fell outside of Graham’s legislative chores. But a three-judge panel on the US Court of Appeals for the 11th Circuit Court—a panel that included two judges appointed by Donald Trump—partially overruled the lower court and asked it to revisit Graham’s case to see if he was entitled to partial immunity. The 11th Circuit believes that some testimony could be protected by the Speech and Debate Clause if Graham’s action involved a legitimate legislative purpose; Graham had to submit his arguments for partial immunity to the district court today.
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I don’t think the 11th Circuit made the right call, but it’s not necessarily as flagrantly illegitimate as it might seem. The 11th Circuit applied the most important precedent on this issue, Gravel v. United States, to the Graham situation. Gravel was the 1971 case involving the leak of the Pentagon Papers to Senator Mike Gravel and his subsequent inclusion of the papers in the Congressional Record. Since the Pentagon Papers were classified, a federal grand jury subpoenaed one of Gravel’s aides and tried to make him testify about how those documents came to be included in the Congressional Record. The Supreme Court, by a vote of 5-4, ruled that the aide could not be compelled to testify, because the aide (and the senator) were protected by the Speech and Debate Clause. That protection, the court said, extended to discussions about the motivations behind legislative acts (like the reasons Gravel put the documents in the record).
However, the Supreme Court did not rule that the Speech and Debate immunity was absolute. Instead, the court said that it extended only to legitimate legislative acts and couldn’t be used to prevent testimony about actions that had nothing to do with legislation. In the Gravel case, that meant the aide could be questioned about Gravel’s decision to leak the Pentagon Papers to the press. The four dissenters disagreed on this last point and would have granted Speech and Debate immunity even for talking with the press.
Gravel was decided over 50 years ago. The difference, of course, between Gravel and Graham is that Senator Gravel was exposing the development of a war strategy specifically designed to circumvent congressional approval, while Senator Graham is suspected of trying to strong-arm a state official into stealing an election.
Unfortunately, one person’s trash is another person’s treasure—and therein lies the potential problem: Legislative purpose can be construed broadly. A range of actions might be considered legitimate legislative acts, but illegitimate conduct should not be protected just because the bad actor happens to be a legislator. Beating the snot out of a senator filibustering a bill, for instance, might have the legitimate legislative purpose of making him shut the hell up, but we all intuitively understand that physical intimidation is not protected by Speech and Debate immunity. I doubt the 11th Circuit would have entertained Graham’s claim for fisticuffs immunity; why is suspected election fraud any more legitimate?
The deeper problem here is that applying the Speech and Debate Clause to subpoenas and testimony is an antiquated protection that makes it even easier for politicians to avoid telling the truth—to stall, as Graham is currently succeeding in doing, if not to escape it altogether. I think the American Republic would be perfectly functional and tyranny-free if legislators merely had the same free speech rights as everybody else. If legislators like Graham don’t want to testify in an ongoing criminal investigation, they should invoke their right against self-incrimination, just like anybody else. One thing we should have learned from the English is that having a special class of citizens with more rights than everybody else is stupid.
