Constitutional Clauses The Speech or Debate Clause

Nia and Aughie discuss the Speech or Debate Clause in Article 1, Section 6 of the U.S. Constitution.

What is Civil Discourse?

This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.

Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now, your host, Nia Rogers, public affairs librarian and Dr. John Aughenbaugh, political science professor.
Nia Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
Nia Rodgers: I'm starting to get that I'm going to get sick this fall feeling. I'm not there yet, but I'm going to get there because I've now been around 10 billion students, and they are bound to have coughed on me or sneezed on me or whatever as I was passing through. How about you?
J. Aughenbaugh: So far, I'm doing fine, but we are getting to that point of the seasonal weather in Richmond, where we have two or three days where it's nice and comfortable and then it returns to really hot and humid weather. Then we have mornings where the temperature is 60 degrees. Then we go into buildings that still have not converted over to central heat, so you got full blast air conditioning going on.
Nia Rodgers: Have the joy of working at a university that's a 100 years old.
J. Aughenbaugh: Then you got all the students. Though we love working with our students, it is an age population that, at times, is not always very careful in maintaining their physical health, which means that, when they get sick, the teachers and staff that work with them also get sick, but so far, I'm doing well, listeners, despite Nia and I doing the stereotypical old person thing and talking about the weather and health.
Nia Rodgers: Old people. Y'all are lucky, we're not talking about how our knees creek and that kind of stuff. Side note when I say university as 100 years old, parts of the university are 100 years old. Medical college is old, RPI is old, but the university itself is actually a baby university. It only came together in 1970 as VCU joined all the parts, but most all of our buildings are old buildings, been in Richmond forever.
J. Aughenbaugh: We're going to be doing a series of episodes about clauses of the US Constitution.
Nia Rodgers: We figure we can break it down for you four or five words at a time. We're just going to read the Constitution to you really slowly over many episodes.
J. Aughenbaugh: These are clauses that you occasionally hear, but you probably don't know all that much about.
Nia Rodgers: You guys all know the Commerce Clause because you have heard us. If you've heard more than one episode of this podcast, you have heard us mention the Commerce Clause because it's one of the ones that's super common. It gets used all the time. We're talking about the ones that slip in when you're not looking. They come in from the side as opposed to from the front, and you're, like, wait, what?
J. Aughenbaugh: These are backdoor clauses. They don't get them through the front door, but somehow they're there.
Nia Rodgers: They're in the kitchen eating the last bit of your cereal and drinking the last of your milk, and you're, like, wait, how did you get here? They're, like, I was in the Constitution the whole time. You just didn't notice.
J. Aughenbaugh: In this particular clause, it's one that's near and dear to Nia and I because we have a podcast that's entitled Civil Discourse, which is about talking. What we're going to be looking at is what's known as the Speech or Debate Clause. This is found in Article 1, Section 6, and it's Clause 1. Article 1, listeners, deals with the legislative branch, and it specifically protects US senators and representatives for any criminal or civil liability for speech or debate in either House. The idea behind it is, we should encourage members of our national legislature to engage in speech and debate before they pass legislation.
Nia Rodgers: Can I read the clause?
J. Aughenbaugh: Sure. Go ahead.
Nia Rodgers: The clause states that, "The senators and representatives of Congress 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 from the same, and for any speech or debate in either House, they shall not be questioned in any other place." It says a couple of things.
J. Aughenbaugh: Sure. Yes, it does.
Nia Rodgers: They cannot walk into the Senate and arrest you. They can wait outside and arrest you outside, but they can't arrest you on the floor of the Senate or the House, I guess, except for treason. Nothing protects you from treason.
J. Aughenbaugh: If you went on the floor of the Senate and went ahead and said, by the way, we're in a war, and the United States is planning on doing X to our wartime enemy, you could more than likely be brought up for charges of treason.
Nia Rodgers: Or, hey, Iran, here's where all our troops are, in case you wanted to bomb them. You would definitely get in trouble. The other thing, I think is breach of peace, which I think is interesting. When that one guy caned that other guy in the Senate when he started beating the guy with his cane, they could arrest you for doing that because you're clearly, one, off your rocker.
J. Aughenbaugh: You're engaged in assault and battery, which is disturbing the peace of that House of Congress. Now, its overall purpose, according to constitutional law scholars, is to maintain separation of powers and protect the independence and integrity of the legislative process. For instance, a president cannot go ahead and have the FBI arrest members of the opposition party who go onto the floor of either the House or the Senate and say, we have a terrible president, and this policy stinks.
Nia Rodgers: They can't arrest you to keep you from saying that because you're allowed to say that. They also can't arrest you before a vote to keep you from?
J. Aughenbaugh: From voting in ways that the president would not necessarily want you to vote.
Nia Rodgers: If you were going to vote no on a piece of his favorite legislation, he can't have you arrested, so you can't vote no. What is sad to me is that somebody had to put that in writing because clearly it crossed their minds to do that to their opponents, and somebody said, we need to rule about that.
J. Aughenbaugh: Nia, your comment right there is based on the experience the colonies had with the British crown because the British crown would sometimes arrest their opponents either in Parliament in Great Britain or have British agents in the colonies.
Nia Rodgers: It had been done to them. They were, like, we're not going to have this.
J. Aughenbaugh: So much of the verbiage of the US Constitution is rooted in the colonial experience.
Nia Rodgers: I guess that makes sense. If they were, like, we're not going to allow that here because that's not an acceptable way to deal with your opponents. As Aughie and I have often discussed, it is not an acceptable way. You don't get to jail your opponents. You don't get to abuse your opponents. You don't get to prevent them from being your opponents. It's just not done.
J. Aughenbaugh: What it does provide is absolute immunity for legislative acts, speeches, voting in both the House and the Senate committee hearings. Again, let's just say, for instance, the Senate Judiciary Committee has members of the Justice Department testifying about a recent, if you will, policy shift to prosecution, and you, Nia, as a member of that committee, as a senator, start asking some really tough questions, the back and forth between you as a senator and me as a representative of the Justice Department. Afterwards, the US Attorney General can't go ahead and have the FBI show up in your chambers and say, you talked mean to our representative. Now we're going to arrest you. No.
Nia Rodgers: You heard Aughie speak [inaudible] , and he's not having it, but really, in fairness, we've had presidents that would have arrested their opponents. I'm not just talking about our current president. I'm talking about probably multiple presidents, several that I can think of, would have had their opponents arrested if they could have.
J. Aughenbaugh: Nixon, Johnson, FDR.
Nia Rodgers: Kennedy, Roosevelt.
J. Aughenbaugh: Lincoln during the Civil War most definitely.
Nia Rodgers: Ulysses S. Grant with the losers. It would have been inordinately tempting to do that, I would think, so it's a good thing that they gave the rule. The other part of the rule, though, that I think is interesting is that for any speech or debate that you give in the House, so Senator Aughenbaugh gets up in the Senate, and he gives a speech, and he says, this war is the dumbest thing I've ever seen. He's talking about war at Vietnam. It's during the Vietnam era. He's like, we're never going to win, and it's terrible, blah, blah blah. They don't get to arrest him later to yell at him about his speech in the Senate. He doesn't get to be questioned about that because that's part of his speech as a senator is that he's allowed to stand on the floor and within reason. I think there are things you can't do, again, going back to treason, but there's also rules about language and stuff, although I don't know. I would love to see
Aughie as a senator because we have the f-bombs everywhere. I think there's some stuff about civility of language and yada yada yada, but for the substance of your speech, they cannot convict you.
J. Aughenbaugh: They can't use your words after the fact to go ahead and bring a prosecution because the threat of prosecution can act as a chilling effect, again, on what we want our members of Congress to do.
Nia Rodgers: On future speech, if Aughie gives this speech, blah, blah, blah, and then he walks out of the Senate chambers, and they rightfully arrest him out of the Senate chambers because he can be arrested anywhere. Then nobody else is going to give a speech like that because they're going to say, look what happened to Aughenbaugh. He got arrested, and now his cadre of lawyers trying to figure out how to get him out of there. I'm glad that it does that. I'm a little concerned about its reach.
J. Aughenbaugh: We'll get to its reach in just a moment. Unless you were going in this direction, not only does it cover members of Congress, it also covers their staff members.
Nia Rodgers: That's what I mean. I'm a little concerned about that, about its umbrellaness. Its umbrella is big. It is a big umbrella. Sometimes these clauses apply very narrowly. You're, like, that applies in this one instance. This applies to anybody who works in their offices, which I'm like, I don't know if I think that's a great idea or not. I don't know. I'm torn, and I'd like to hear your thoughts on it.
J. Aughenbaugh: I can understand your concern because staff members are not elected by the public.
Nia Rodgers: They're not held responsible in any other way.
J. Aughenbaugh: Again, using the example of I as a member of the Senate, and I have three or four staffers. None of those staffers are picked by the citizens of my state who elected me. If they go ahead and abuse the Speech or Debate Clause, it's not like the voters can go ahead.
Nia Rodgers: Vote him out. Neither can you.
J. Aughenbaugh: They can go ahead. On the other hand, members of the House and the Senate can't do their jobs without staff. At times, staff members are going to be acting on behalf of the senator or of the representative, and they should feel free to be able to go ahead and engage in speech or debate in furtherance of helping their boss, whether it be a member of the House or Senate.
Nia Rodgers: They're doing their job.
J. Aughenbaugh: I am a little bit torn. It's like, Nia, you and I have discussed on this podcast the important but somewhat troublesome role of the clerks of Supreme Court justices.
Nia Rodgers: It's a similar thing in my brain. They're very smart, they understand the justices, they know what they're doing and all the other stuff, and they know the ins and outs of the court, they know the ins and outs of that, but they shouldn't be deciding, I think, some pretty important things that they could decide, like, what goes before the justices.
J. Aughenbaugh: They're the ones who make recommendations on which cases the Supreme Court should hear.
Nia Rodgers: Should that talk to some clerks?
J. Aughenbaugh: They're only a year or two out of law school. It's not like they've been practicing law for a couple decades, so they're experienced lawyers. No. Then they draft opinions. Some of the justices rely upon their drafts. In fact, almost all of them do today. I'm just, like, but we hired you. Miss or Mr. Justice because of your knowledge and expertise, not some kid out there.
Nia Rodgers: A fievel, a person who's two years out of law school. At that point, why don't we just have AI do it, which I'm sure will be coming at some point. I have some qualm, but I also understand that if you don't give those people space to get the job done, then there will be a lot of stymied effort. There'll be a lot of things they won't be able to do.
Nia Rodgers: Is it common in a lot of state constitutions to have a similar clause?
J. Aughenbaugh: Yes.
Nia Rodgers: Does that trickle down?
J. Aughenbaugh: A majority of the state constitutions. In some cases, Nia, state constitutions had it before the federal Constitution.
Nia Rodgers: Trickled up?
J. Aughenbaugh: Yeah.
Nia Rodgers: [inaudible] effect.
J. Aughenbaugh: But most state constitutions have a similar clause.
J. Aughenbaugh: Again, it's based on this idea of parliamentary immunity. Because, again, so many of our legal constructs flow from British common law in the experience we had with the Brits. But state legislatures do similar work to our Congress. We want them. The hope is before they pass significant legislation that can affect.
Nia Rodgers: Did all fight about it?
J. Aughenbaugh: That can affect a whole bunch of people's lives. They may have gone ahead and debated with one another.
Nia Rodgers: Debate's better than fight, but that they've had a reasoned discussion where they say, "Yes, we understand there are some risks. We recognize those risks." As opposed to just not doing anything. That's the whole point of debate. The whole point of debate, the entire point to me, is that if Aughie and I are senators, we're senators, he's from Pennsylvania. I'm from North Carolina. If we're debating a point in Congress, we're debating it based on our understanding of our constituencies and what the needs are in our states. He might say, we want this coal bill where we don't care if coal dust gets all up in people's lungs and blah, blah, blah because it's really great for Pennsylvania to have lots and lots of coal mining and we don't want any regulations on at all. Then there's me who doesn't have
as many coal mines in North Carolina going, Wait. What about your workers' lungs? What about children's lungs, who live near the coal mines? It's up to me to bring up those questions, so that Aughie has to either answer them or at least acknowledge that there's the question. That's why it's so important to have this pure debate and the ability to purely debate. But then there's things like, I'm going to filibuster or I'm going to stand here and read into the record, maybe things that nobody expected to be read into the record.
J. Aughenbaugh: Listeners, Nia's most recent comment is going to allow us to pivot to three court cases which have explored or set the parameters of what this clause actually protects. It's funny you gave the example of the Vietnam War era. The first case arose in the early 1970s, Gravel versus the United States. It looked rather specifically at the issue of congressional aides and the publication of classified material. In June of '71, Senator Mike Gravel, a Democrat from Alaska, received a copy of the Pentagon Papers from an editor at the Washington Post. For our listeners who don't know, the Pentagon Papers was a study commissioned by the Department of Defense to look at the history of the United States' involvement in Vietnam. What the study showed was the United States got involved in Vietnam as early as the Truman administration, escalated a little bit during Eisenhower, then really escalated during the Kennedy administration, and then Johnson, we went to war. It was very critical. Again, this was a classified study, but it exposed that the United States government had not been transparent with the public about how active we were in Vietnam because both Truman and Eisenhower had decided that during the Cold War, the United States was going to stop the spread of communism, even if it did not threaten or encroach upon US borders and national security, the infamous domino theory. If one country in a region goes communist, then perhaps other countries will.
Nia Rodgers: Absolutely. It did things like it obfuscated the number of people who died in Vietnam. Because if you're dying there, it means there's some kind of war there. There were some sleight of hand about where people passed away, and they died in Germany, or they died in wherever. They would say things like that instead of saying they died in Vietnam. If you ever want to read them, they are public now. Well, they're redacted public.
J. Aughenbaugh: The Washington Post and the New York Times got leaked excerpts, which they attempted to publish. The Nixon administration went to federal court to force those newspapers to stop. The editor of the Washington Post, Ben Bagdikian, went ahead and gave a copy of the Pentagon Papers to Gravel, who he knew was vehemently against the Vietnam War. Because he hoped that Gravel would either read it into the congressional record on the floor of the Senate, or, as Gravel eventually did, he actually read parts of the Pentagon Papers during a subcommittee hearing. He was a chair of the Senate subcommittee on public buildings and grounds, and he convened a meeting of the subcommittee and spent an hour reading part of the Pentagon Papers. His reading was slowed because Gravel was dyslexic. Gravel, who wanted to get this information out in the public, then reached out to Beacon Press, which is a publishing company, in an attempt to have it publish the full Pentagon Papers. At that point, the Nixon administration had already convened a federal grand jury to find out who initially leaked the Pentagon Papers.
Nia Rodgers: It should be noted, by the way, that they're still classified at this point because they only got declassified in 2011. They only got fully unredacted in the last five years or so. This was not material that any old schmo could find. It was seriously covert.
J. Aughenbaugh: Because people were breaking the law in publishing.
Nia Rodgers: To do this.
J. Aughenbaugh: Because it was a classified report. Here's where it gets even more complicated. The federal grand jury that the Nixon administration had impaneled asked for one of Gravel's aides, Leonard Rodberg, to testify. He was subpoenaed. This is where the case gets to the federal courts. Gravel intervened and asked the federal courts to quash the subpoena on the grounds that Rodberg, because he worked for Senator Gravel, was protected by the speech or debate clause.
Nia Rodgers: A federal court rightly gave that a little bit of side eye because that had not been decided by the Supremes yet.
J. Aughenbaugh: Yes.
Nia Rodgers: Gravel was grasping at a straw there. But they did say, "We don't believe that's the case, but we do think there are questions you can't ask." Didn't they say, you can't ask who you got it from.
J. Aughenbaugh: The district court gave a little bit to Gravel and a little bit to the Nixon administration. The District Court went ahead and said there were certain questions that could not be asked of Gravel's aide, Rodberg, because he's protected by the speech or debate clause.
Nia Rodgers: They had to show up and answer some questions.
J. Aughenbaugh: Questions. The publication by a private press of the Pentagon papers was not protected by the speech or debate clause.
Nia Rodgers: Which makes sense.
J. Aughenbaugh: Yes. Because, again, it's classified material.
Nia Rodgers: You wouldn't want people just smuggling it out and then everybody publishing it, Willy Nilly.
J. Aughenbaugh: The Appeals Court basically, once again, gave a little bit to Gravel and a little bit to the Nixon administration.
Nia Rodgers: Like you do.
J. Aughenbaugh: Like you do. Which then led both Gravel and the Nixon administration to appeal to the Supreme Court.
Nia Rodgers: To be crabby. That makes sense. I don't like it. I don't either. Let's take it to the Supremes.
J. Aughenbaugh: The Supreme Court in a closely divided ruling in 1972, the vote was 5:4 held that the privilege of the speech or debate clause did extend to congressional aides. "The privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senate himself."
Nia Rodgers: In reading something into the record.
J. Aughenbaugh: That's right. Again, Gravel needed that help because he was dyslexic. However, the court did refuse to protect congressional aides from either prosecution for criminal conduct or from testifying at trials or grand jury proceedings involving third-party crimes.
Nia Rodgers: The publication?
J. Aughenbaugh: Yes.
Nia Rodgers: If he takes it to the publisher or for the senator, he can now be criminally liable for that, and he can be questioned about that in court.
J. Aughenbaugh: Yes. The Supreme Court did uphold the district court ruling regarding private publication. Publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate, nor does questioning as to the private publication threaten the integrity or independence of the Senate.
Nia Rodgers: I do like, though, that the court said you can't let them ask some questions and not others because either the privilege is absolute or it is not.
J. Aughenbaugh: That's right.
Nia Rodgers: It's not partial. You can't give partial privilege. They said, whatever questions the grand jury asked, you can't use those answers.
J. Aughenbaugh: That's right. Yes.
Nia Rodgers: We're saying that aides are covered, then aides are covered. Not aides are kind of covered, or sort of covered. It's like sort of pregnant.
J. Aughenbaugh: That's right.
Nia Rodgers: It's a binary, it's a yes or a no. There's very few instances where you could argue a middle ground.
J. Aughenbaugh: I like that. It's like some of my classmates in my youth. "I'm kind of hung over." That always confused me.
Nia Rodgers: You're probably not kind of hung over.
J. Aughenbaugh: Either you're hungover.
Nia Rodgers: Or you're not?
J. Aughenbaugh: I'm kind of in shape. No, either you are in shape or you're not. You might be in the process of getting in shape, but that doesn't mean you are actually in shape. But our next case is one of me and Nia's favorite, because we've covered this in the previous podcast episode, bad things that members of Congress have done. In 2000 the name of the case is United States versus the Rayburn
House Office Building. It concerns the searches of congressional offices. In May of 2006, the FBI, the Federal Bureau of Investigation, raided the office of one representative, William J. Jefferson.
Nia Rodgers: We love names. That's a great name.
J. Aughenbaugh: Yes, it is. William J. Jefferson.
Nia Rodgers: When he was a kid, he went by Billy J. We just know he did, anyway.
J. Aughenbaugh: He was a Democratic member of Congress from Louisiana.
Nia Rodgers: That's why I say that, Louisiana.
J. Aughenbaugh: The raid took place during the 14th month of an investigation into Jefferson's business ventures in Africa. Some of you may know of Representative Jefferson because not only did the FBI search or attempt to search his office building in the Rayburn building. They also searched his DC home, and they found cash where, Nia?
Nia Rodgers: In the freezer.
J. Aughenbaugh: In the freezer.
Nia Rodgers: Cold, hard cash.
Nia Rodgers: I know that's not what they mean by that.
J. Aughenbaugh: It was accurate. The reason why it was accurate because they were blocks of cash.
Nia Rodgers: We're not talking a couple hundred bucks.
J. Aughenbaugh: Bucks, no. We're talking about thousands of dollars.
Nia Rodgers: We're talking about the way it comes from the government with the wrapper on it. That paper wrapper around the middle that keeps it together. That's what he had in his freezer, dude. Somebody went to a bank and got a stack of cash to bring to your house and put in your freezer. He put it in the freezer, I'm sure.
J. Aughenbaugh: The FBI raid of his offices just sent both parties in a tizzy, in an uproar.
Nia Rodgers: In fairness.
J. Aughenbaugh: The Republican speaker at that time, Dennis Hastert, stated, "The actions of the Justice Department in seeking and executing this warrant raise important constitutional issues that go beyond the specifics of this case. Insofar as I'm aware, since the founding of our republic, which at that time, 219 years, the Justice Department has never found it necessary to do what it did Saturday night, crossing the separation of powers line in order to successfully prosecute corruption by members of Congress. Nothing I've learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over these 219 years."
Nia Rodgers: They raided his congressional office. That is a bridge very far. They didn't need to because the cash in his house was enough. They didn't need to cross the line. They didn't need to push this rule.
J. Aughenbaugh: The Congress challenged the search. The DC Circuit Court of Appeals ruled unanimously that the FBI search was unconstitutional and ordered the FBI to return privileged documents seized in the raid. Interestingly enough, Nia, did the Supreme Court ever take this case?
Nia Rodgers: I don't think so.
J. Aughenbaugh: No. The Supreme Court declined to take the case, and as we already pointed out, Jefferson was later convicted on the basis of other unrelated evidence.
Nia Rodgers: The stuff in his house, they didn't need to do all that. The other thing too is, I think, didn't the FBI take some of his legislative documents that had nothing to do with this? If you've never been subjected to an FBI raid, and I have not, and I'm very grateful, but I have seen them, and they will take everything. They take anything that is not nailed down. If you have a cat in your office, they will take your cat. They take everything. Then they return to you what they didn't find useful. Didn't the court say, give back all that stuff?
J. Aughenbaugh: The determination of what is useful is conducted by what's known as a filter team who has been specifically trained to determine which documents are relevant to their investigation and which ones aren't, which by the way, at that time, very few Americans knew that the Justice Department had a "filter team."
Nia Rodgers: Which is scary.
J. Aughenbaugh: Some of our listeners are, like, I didn't know it existed today, some 20 years after.
Nia Rodgers: Here's what happens. If the FBI doesn't sweep everything away and take it away to their filter team, if they do it in the office, then the congressman can say, no, that's part of my legislative privilege. They can claim privilege on certain documents, but when somebody just walks out with everything, you have no idea what they got and what they didn't get. They may have gotten everything from your lunch order to some legislation that you've been writing, which is covered under this clause. I'm not surprised that the legal world went, "You can't do that. What are you doing?" I am a little surprised the Supremes didn't take it. Why do you think that's the case? Do you think that's because they thought it's so obvious the other stuff is going to end in a conviction that we don't need to worry about this?
J. Aughenbaugh: In particular, the DC Circuit relied rather extensively on gravel. It wasn't like the DC Circuit was breaking new ground and ruling in favor of the United States Congress. Let's be very clear here. Speaker of the House Hastert or House Minority Leader, who at the time, Nancy Pelosi, neither of them were defending Jefferson, claiming he was not a criminal.
Nia Rodgers: There are rules, man.
J. Aughenbaugh: There are rules that protect one institution from another. Just because one of our members might be a chucklehead, allegedly is, does not mean you go ahead and throw out the rules for everybody else who works in this institution.
Nia Rodgers: You are an alleged chucklehead until some evidence determines you to be a chucklehead, and you could just act.
J. Aughenbaugh: How you gain that evidence as the government, there are rules that govern that. In addition to the Speech or Debate Clause for the rest of us who don't work in Congress, we have this thing called the Fourth Amendment. There are rules.
Nia Rodgers: I would like to tell you something while we're on recording because I think you'll appreciate it really quickly. I was working with some grad students. They wanted to approach an agency and get a document from that agency, and I said, you should tell them that you're a student working on a paper and ask nicely for this document. You'll probably get it. It's not a FOIA, it's not declassified, or anything like that. I think they probably won't have any trouble, but I said, if you don't make clear you're a student, they may think you're a lawyer, and there are different rules for that. One of the students said, couldn't lawyers just pretend to be students? I said, sure, they could do that, but it wouldn't be admissible in court because there are rules about how you get evidence. There are rules called discovery that are about how you get evidence. You don't get to just lie to the person to get the evidence that you want to then prosecute them. That's entrapment, and we don't allow that. They're like, oh, so lawyers going around pretending to be students is not a thing. It's always good for the person to know who they're dealing with. That's why I suggest students because a lot of times they will be kinder to you if you're a student, and you tell them that, than they would be if they thought you were a lawyer. Why do you want to sue us? What's going on? They get all prickly, but if you're, like, I'm a student, and I'm interested in this, they are more likely to help you. They were, like, can lawyers pretend to be students?" No. Not unless you don't want to keep your bar association, in which case, do what you want.
J. Aughenbaugh: If you don't want to keep your license, okay. We could mention a couple other cases, but really, Nia, because we're running short on time, what I would like to do is to get to examine criticisms of the clause. There are some rather significant ones, and we've touched upon this.
Nia Rodgers: Wait, can I ask one question before you go away from the court cases?
J. Aughenbaugh: Yes.
Nia Rodgers: What about the vice president? The vice president is both a member of Congress, technically, the breaker of ties. That's a great name. That's what we should call the vice president from now on, the breaker of ties.
J. Aughenbaugh: The breaker of ties, I wonder if that's on their business card.
Nia Rodgers: That would be really cool, wouldn't it? JD Vance, breaker of ties, it would make him sound way cooler than he is.
J. Aughenbaugh: I know that many people no longer use business cards today, but when they were still using business cards, it's like private detectives. They would have really nice art on the corners of their business cards. Breaker of ties.
Nia Rodgers: Can you imagine on Dick Cheney's to be breaker of ties and knees because I think he was rough and tumble, or LBJ, breaker of ties and crusher of handshakes. You could do some really good ones.
J. Aughenbaugh: President Johnson, the treatment. [inaudible] .
Nia Rodgers: That's it. Everybody would just be afraid. Your card would be black with white writing. It would so stand out. Anyway, as the vice president, do they have privilege under this?
J. Aughenbaugh: This came up with former Vice President Mike Pence. After the 2020 presidential election, the Biden administration was elected. The Justice Department hired Special Prosecutor Jack Smith to investigate Trump's handling, or mishandling, of classified documents. His investigation expanded into Trump engaging in criminal behavior on, what was it, January of 2021, when there was the riot/insurrection at the US Capitol, and Smith wanted Mike Pence to turn over evidence and/or appear in front of a grand jury.
Nia Rodgers: Side note, he was there that day because they were certifying the election, which he does as the vice president. It's not like randomly, let's ask Mike Pence because he just seems like the guy who would know. No. He was in the Capitol when this was happening.
J. Aughenbaugh: There were press reports that indicated that Trump either ordered or attempted to persuade Pence to not certify the electoral college votes because, per federal law, the vice president is to oversee the counting of electoral college votes in the United States Congress. Pence resisted on the grounds that, because he is the president of the United States Senate, which is a legislative role in a legislative body of the United States government, he is covered by the Speech or Debate Clause, and a district court judge ruled in 2023 the clause does apply to the vice president when they are serving in their role as the president of the Senate. For instance, any conversations a vice president would have in the lead-up to casting a tie-breaking vote in the Senate would be covered by the Speech or Debate Clause.
Nia Rodgers: In this instance, the paperwork he was doing to count the ballots would count as covered because it is speech by written method on the floor of the Senate.
J. Aughenbaugh: Yes. He was performing a legislative function described in a law passed by Congress.
Nia Rodgers: Jack Smith probably didn't fight that right because he was, like, I'm not getting into this fight.
J. Aughenbaugh: He did not fight. This case did clarify that when the vice president is acting in some role or capacity associated with being the president of the Senate, they don't have to comply with any subpoena, grand jury testimony, etc. They don't have to.
Nia Rodgers: Curious about this because you've worked in the Congress. Does the vice president have an office at the congressional buildings?
J. Aughenbaugh: Yes.
Nia Rodgers: Or does he just sit out on a bench in the lobby and work in there?
J. Aughenbaugh: He hangs out in the men's room.
Nia Rodgers: You have an office somewhere else. Go work there.
J. Aughenbaugh: He just hangs out in the men's room until they need him to cast that breaking vote. He hangs out in the cafeteria sucking down coffee. No. Yeah, he has his own office.
Nia Rodgers: He actually has two offices.
J. Aughenbaugh: Yes, he does, and he has a residence.
Nia Rodgers: Which is fabulous, maintained by the Navy.
J. Aughenbaugh: The Naval Observatory. That's actually pretty cool. You get two offices. You get your own private residence.
Nia Rodgers: Most of the time you are not the target of people's eye or bullets. Most of the time, you're not the one they're coming for, but which one of them said this job is worse than a warm bucket of spit?
J. Aughenbaugh: That would be Roosevelt's first vice president.
Nia Rodgers: You're basically waiting for somebody to die. That's your job. You're waiting for somebody to die, and you're occasionally casting a tie-breaking vote. We've already described one of the things we think is wrong or not wrong with it. One of the criticisms of it is that it casts a wide shadow in terms of numbers because you have the 535 members of Congress and all of their office clerks and aides and stuff like that. It's not a small number of people.
J. Aughenbaugh: I often wonder if it also covers committee staff.
Nia Rodgers: Has that been questioned yet? I guess that hasn't come up yet.
J. Aughenbaugh: It's not come up in a court case, but all the committees have staff members, too.
Nia Rodgers: Are they separate from books and pages?
J. Aughenbaugh: They don't necessarily work for a member of Congress.
Nia Rodgers: They work for the committee.
J. Aughenbaugh: I've had former students work just for committees.
Nia Rodgers: We may have to accost one of them and see what happens. We could say we were experimenting for greater knowledge. Let's not do that. I don't think we should accost people for no reason.
J. Aughenbaugh: I don't think that that would be an adequate justification if we were ever arrested.
Nia Rodgers: That's true. We were trying to figure out what would happen.
J. Aughenbaugh: Because the Constitution's not clear about that, so we're actually doing this for posterity's sake.
Nia Rodgers: This is for everybody's knowledge. We're doing good acts here, and they'd be like, "No, you're not. Sit down."
J. Aughenbaugh: There are some criticisms and some legal uncertainties because they haven't come up yet in cases like the hypothetical we just mentioned. First of all, immunity for criminal acts. Though members of Congress have attempted to use the speech or debate clause in regards to protecting their words used in bribery in kickback schemes. The courts have said, bribery, I love this. Bribery is not a legislative act.
Nia Rodgers: It's not a protected legislative act. I love that. I absolutely. When I saw that in your notes, I laughed out loud. I was like, it is such a congressional member thing to say, Oh, no, the bribery was part of my part of my work as a congressperson. It's protected. Like, are you sitting there with a straight face suggesting that bribery is part of your job? What are you talking about? Of course, if you're brazen enough to take a bribe, you would be brazen enough to say that.
J. Aughenbaugh: Yeah. Right. Because, you know, in for a penny in for a pound.
Nia Rodgers: What's going to stop you from saying, "Well, I thought it was covered under the speech or debate clause."
J. Aughenbaugh: If I'm going to take a bribe or take a kickback, then I'm going to look for something in the constitution to go ahead and provide cover for my criminality. Another criticism, and this is one that Nia and I have made at length about the US Constitution. It does not define terms, right?
Nia Rodgers: No. It leaves them deliberately vague, I think.
J. Aughenbaugh: It doesn't define what is a legislative act. It could be read narrowly voting committee investigations, or is it broad? If you give a speech on the floor of the House where you're extolling all the good work you've done because you've got an upcoming election, is that actually legislative?
Nia Rodgers: I don't think so.
J. Aughenbaugh: Employment liability. Courts have ruled that the clause does not automatically prevent employment discrimination lawsuits against congressional offices. Because sometimes members of Congress are like, "Well, yeah, I went ahead and treated you like crap because I'm a member of Congress and I need you to go ahead and work hard. And yes, it could border into harassment, but at the same time, I'm a member of Congress. I can say whatever I want to you."
Nia Rodgers: Even more subtly, if you are opposite gender or same gender, depending on the inclinations of all the individuals involved, so I should not say gender comes into it. But if you are working for a member of Congress and they're going to write legislation about sexual harassment and they want to talk with you in depth about it in a way that makes you deeply uncomfortable, there's no
protections for you. If Aughie wanted to, well, he would never do this, but if he wanted to talk to one of his colleagues in depth about some new harassment policy at VCU, there would be certain lines he would not be able to cross because then it would move into harassment itself of the individual. Whereas they're saying, No, if it's part of the legislative process, which I have to wonder how many times that has been the underhanded way that old men have talked to young people of whichever persuasion they were interested in.
J. Aughenbaugh: Yeah, exactly. Then we got accountability in business
Nia Rodgers: Yeah, we talked about that. The clerks cannot be held accountable, can't be held responsible. If Aughie is a senator and I don't like what he does, I campaign against him and I get him booted out of his Senate seat.
J. Aughenbaugh: But the accountability issues also occur within the Congress. Remember, it protects members of Congress and their staff from people outside of Congress wanting to prosecute them, investigate them. It does not protect members of Congress and their staff from being investigated by Congress.
Nia Rodgers: So the Ethics Committee can still investigate its own?
J. Aughenbaugh: Yes.
Nia Rodgers: It doesn't protect you from that. Oh, that's good.
J. Aughenbaugh: Well, on one hand, it's good. On the other hand-
Nia Rodgers: I hunt my political enemies. Oh, yeah, I didn't even think about that till you just said that. I hate it when you do that to me. I'm like, oh, I've got this point, and you're like, oh, here on, let me turn that just six degrees, and I go, oh, Crudge. I didn't even think about that, but yeah, that would be a way to chase your political enemies without doing it from the outside.
J. Aughenbaugh: That's right.
Nia Rodgers: That just means a president comes to a member of Congress that they're pals with and says, I want you to investigate Aughenbaugh cause I don't like him.
J. Aughenbaugh: Yes.
Nia Rodgers: I want you to make his life in the Senate an utter unliving hell for the next three years until he decides he's not going to do it.
J. Aughenbaugh: Yeah, or you guys go ahead and expose all of his peccadilloes so that his voters won't reelect him.
Nia Rodgers: That coffee drinking swine.
J. Aughenbaugh: Yes, right? Okay.
Nia Rodgers: That's what would be on your business card. Senator Aughenbaugh coffee drinking swine. Or coffee coffee swilling swine, because then it would sound cooler.
J. Aughenbaugh: Then the last one is the clause has been criticized for being used to hide information during investigations. This gets back at one of the criticisms of the United States Congress during the William J. Jefferson affair. Many Americans did not make a distinction between Hastert and Pelosi trying to protect the institution, and Hastert and Pelosi seemingly protecting Jefferson.
Nia Rodgers: We'll cover for each other and keep each other safe so that they can get away with all kinds of crap. And they're like, "No, we're just trying to make sure that everybody gets due process. It's not fair if some people get due process and some people don't.
J. Aughenbaugh: Yes.
Nia Rodgers: But you're right. The American public is not often that nuanced.
J. Aughenbaugh: Yes.
Nia Rodgers: In seeing-
J. Aughenbaugh: The distinction. These are important distinctions because we want Congress to police its members for bad behavior.
Nia Rodgers: The institution needs to be able to function without threat constant interruption because it could prevent them from doing their work. If there was a concerted enough effort, it could prevent them from doing anything.
J. Aughenbaugh: Yeah. Again, this clause really does highlight the tension between we want an independent legislature, but we also want to make sure that members of that legislative body are accountable for unlawful conduct.
Nia Rodgers: That's the key.
J. Aughenbaugh: Yes. Being a member of Congress is not a get out of jail card free.
Nia Rodgers: It's also not the assumption that every single thing that you do is unlawful. I know that on a regular basis, we as Americans tend to think they and by they, we mean all 535 members of Congress as one individual are corrupt. There's a tension in American politics where I think Congress' approval ratings are slightly lower than that of malaria born mosquitoes. We just hate them as a group. That temptation to treat them all as one thing could really be abused. We need these kinds of rules to say, "No, just because they're in Congress doesn't mean they're a criminal." Those two things are not automatic.
J. Aughenbaugh: As we've often said on this podcast, we would like to see more discussion, more debate, more conversation among members of Congress, not less. That's one of the purposes of this clause. We want members of Congress to actually go ahead and say, this is why I'm in favor of this piece of legislation, or I like these parts, but not others. I want to say this publicly, so that if you are interested in seeing what the Congress is doing, the speech or debate clause is designed to go ahead and allow us
to do this because we hope that their speech will be in the congressional record, then we can go ahead and see what they are saying. What questions are they asking in committee hearings? Are they showing up to committee hearings? Are they showing up for congressional votes? But that's the purpose of the speech or debate clause. We want them to have the hearings to ask tough questions of members of the executive branch.
Nia Rodgers: Then C-SPAN is the method by which we watch to see if they're doing it.
J. Aughenbaugh: That's right.
Nia Rodgers: That's the great thing about C-SPAN. If you haven't watched C-SPAN, it's a super awesome thing to just put on the background while you're working on stuff because you will hear some things and you'll be like, wait what? What did that person just say? But also, you get to see the actual working of Congress, how does this thing play out? Who here talks to each other? It's fascinating to watch the side conversation. You can't hear what they're saying. But you think, I didn't realize those two people ever spoke to each other. They look like they're pals.
J. Aughenbaugh: Yeah.
Nia Rodgers: It's very enlightening.
J. Aughenbaugh: Yeah.
Nia Rodgers: It's enlightening to go online. Almost all of the committee meetings have their meetings online, except for the ones that are involved with intelligence or classified material. But the ones that are doing, budgetary work and all that kind of stuff, a lot of those are online, and boy, it is interesting to watch those. You're like, Oh, these people are feisty in their committee meetings.
J. Aughenbaugh: There is a natural tension here. We see this with a governing document for a democracy because there are explicit trade offs. But I really enjoyed this conversation. Again, long term listeners, I know you've heard us say this. But every time we go ahead and research a topic or a document or whatever the case may be, we always end up finding out something we didn't know previously.
Nia Rodgers: I was today years old when I learned about filter teams.
J. Aughenbaugh: Yes.
Nia Rodgers: I learned about that from your notes. Who knew that there was a special group that's their job is to do the filtering of materials when they get the huge amounts of the FBI. Because when the FBI raids, they just take everything because the guy on the ground doesn't decide what's important and what's not. He puts everything in a box, everything. And he brings everything to the filter team, and then they decide.
J. Aughenbaugh: They put it in boxes and bags, they seal it. They sign the seal. Then somebody else goes through it and says, this is relevant, this is not relevant.
Nia Rodgers: Why'd you pack a ham sandwich? What are you talking about?
J. Aughenbaugh: You went ahead and had the entire desk shipped back to the FBI building.
Nia Rodgers: What? It's funny because it's seemingly innocuous clause, but it's not very important. I think we're going to find that with most of the ones we're going to talk about is that you think, well, that's not really hard to understand and they're like, oh there's a lot to that. Thank you Aughie.
J. Aughenbaugh: Yeah. Listeners, this is going to be part of a series because that's what we're fond of doing on this podcast.
Nia Rodgers: We do like to like to get into a rut and explore the rut and then move to the next rut and explore that rut.
J. Aughenbaugh: You guys ever heard of rabbit holes? Nia and I, we're rather fond of sticking our heads down-
Nia Rodgers: Of our mental rabbit holes.
J. Aughenbaugh: Yeah.
Nia Rodgers: What's in here?
J. Aughenbaugh: What's in here? Oh, hey, there's a whole family of rabbits here. What's your name?
Nia Rodgers: Occasionally, the rabbits are Vorpal rabbits and they come at us. And we're like, uh oh. This was a mistake. This is too much. If you don't know what a Vorpal rabbit is, look it up. Thank you.
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