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?
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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.
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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.
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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.
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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).
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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.
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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.
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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.
Elie Mystal @ The Nation
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