If recent reports are true, Sen. Adam Schiff could have some explaining to do. According to newly-released documents, a Democratic whistleblower told the FBI that Schiff approved leaking classified information regarding the alleged Russiagate scandal to smear President Donald Trump. According to the report:
“When working in this capacity, [redacted staffer’s name] was called to an all-staff meeting by SCHIFF. In this meeting, SCHIFF stated the group would leak classified information which was derogatory to President of the United States DONALD J. TRUMP. SCHIFF stated the information would be used to indict President TRUMP.”
If this information is accurate, Schiff could potentially face legal consequences. However, before entertaining this possibility, questions remain as to whether this alleged conduct would enjoy immunity under the speech or debate clause of the Constitution.
Article I, Section 6, Clause 1 of the United States Constitution states, “…for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” According to legislative attorney Todd Harvey, one purpose of this provision is to “protect the independence, integrity, and effectiveness of the legislative branch by barring executive or judicial intrusions into the protected sphere of the legislative process.”
One of the leading cases discussing the speech or debate clause is Eastland v. United States Servicemen’s Fund. There, the Supreme Court explained that a broad interpretation of the relevant clause protects legislators acting within the sphere of legitimate legislative activity from litigation, the results thereof, and the need to defend themselves.
In rendering its decision, the Supreme Court in Eastland discussed the types of activities that fall within the legislative sphere other than those involving actual speech or debate. Specifically, the Court stated they must decide whether the activities are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.”
As the Eastland court explained, legislators acting within the sphere of legislative activity enjoy absolute immunity from interference. Moreover, the motivation behind those acts is also typically protected.
In another case, Gravel v. United States, the Supreme Court explained that the clause protects acts like voting by members, committee reports, and a member’s conduct at legislative committee hearings. However, as the court noted, “While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.”
Therefore, in line with Gravel, the speech and debate clause does not provide free rein to engage in illegal conduct or to violate one or more laws. According to The Heritage Foundation:
If a Member’s actions meet the “legislative process” test, his immunity is absolute; and that is so even if he has acted contrary to law. Accordingly, although the government may prosecute a Member for a criminal act, such as accepting a bribe in exchange for a vote, it may not pursue the case if proof of the crime “depend[s] on his legislative acts or his motive for performing them.” Thus, the government may not prove that the Member voted a particular way on the House floor in exchange for a bribe; the government, however, may prove (by other means) that the Member promised to vote a particular way in exchange for the bribe. The former (the vote) requires proof of what happened on the House floor whereas the latter (the promise to vote) does not.
This is in line with what the Supreme Court said in Johnson. There, the court stated that the government should not be barred from bringing a prosecution “purged of elements offensive to the Speech or Debate clause through the elimination of all references to the making of the speech.”
Schiff’s alleged statements or orders to leak classified information about Trump to the public for the purpose of smearing and hurting Trump could be shielded if they are deemed to be within the sphere of legitimate legislative activity. Yet, aside from allegedly taking place at a formal meeting, it is unclear how the alleged order to intentionally leak classified information to the public constitutes legitimate legislative activity.
The only nexus between the activity and the legislative process is the fact that it allegedly occurred during a meeting. In United States v Brewster, the Supreme Court stated, “The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.” The court also distinguished between legislative acts, which are protected, and acts that are political in nature and do not have such protections.
While the motivation behind this activity cannot be considered, the activity itself must still fit within the legislative framework described by the Supreme Court. For example, if the same meeting involved a plot to kidnap someone, rather than to leak classified information, would the discussions involving this plot be considered part of the legislative process merely because they took place during a formal meeting?
Tangentially, it is unclear if any other related activity allegedly took place at any other time or place, and outside the legislative sphere. If so, this could remove the insulation provided by the clause.
Finally, if any laws were broken by leaking this information or putting the idea in motion, the clause may not afford protection if evidence of this alleged wrongdoing can be established independent of what transpired at the alleged meeting. Schiff should lawyer up.
Mr. Hakim is a political writer and commentator and an attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications. https://thoughtfullyconservative.wordpress.com and Twitter: @ThoughtfulGOP.
