Would Speech or Debate Protect Attorney General Sessions from Prosecution?

It is being alleged that Attorney General Sessions gave untruthful testimony in his confirmation hearing. Specifically, in response to a question from Senator Franken about communications between Trump surrogates and representatives of the Russian government in the course of the 2016 presidential campaign, Sessions responded: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.” In fact, Sessions apparently did have two discussions with the Russian ambassador during 2016, although it is unclear whether they discussed anything regarding the election.

For present purposes, we will skip the (serious) issue of whether there is a plausible basis for viewing this testimony as perjury or a material false statement that could be the basis of a criminal prosecution. Assuming that such a basis exists, there is an interesting legal question that arises. Would Sessions be immune from prosecution under the Speech or Debate Clause? For the reasons set forth below, the answer is probably no.

At the time of his confirmation hearing, Sessions was still a sitting United States senator. It could therefore be argued that his testimony falls within the Clause’s protection for matters that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625 (1972).

Does it make a difference that Sessions was testifying as a nominee, not as a senator? I am not aware of any authority directly on that point, but an analogous issue has arisen in the context of congressional disciplinary proceedings. In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009), addressed the question of whether prosecutors could subpoena testimony given by a congressman to the House Ethics Committee in connection with the committee’s investigation of his allegedly improper congressional junket. The district court rejected a motion to quash the subpoena on grounds of Speech or Debate, holding that “the congressman was not acting in his legislative capacity but in his personal capacity as a witness to facts relevant to the committee’s investigation.”

The D.C. Circuit, however, reversed, holding that Speech or Debate applied. The lynchpin of the majority opinion was that the committee’s investigation was into an official or legislative matter. Although the government argued that the Ethics Committee was investigating “personal” misconduct (i.e., receipt of a privately funded vacation in violation of House rules), the congressman’s lawyers argued that the trip was for purposes of legislative fact-finding. The D.C. Circuit held that this contention (whether it was true or not) meant that the subject of the investigation was not simply a personal matter but a question of whether the congressman had “abused” his official powers in accepting the trip. It therefore concluded that the Speech or Debate Clause applied.

As I noted at the time, the distinction between investigations into personal matters and those into official matters does not make much sense (see here and here), and it is not entirely clear how this reasoning would apply in the Sessions situation. Should the confirmation hearing be viewed as a “personal” matter with respect to the nominee since it involves the nominee’s personal qualifications for the position in question? Or should the characterization depend on whether a particular question delves into official conduct by a sitting senator? In the latter case, one might make a case that Speech or Debate applies to the Sessions situation, given that Sessions contends that his meetings with the Russian ambassador were in his official capacity as a senator.

Although the matter is not free from doubt, my guess is that the D.C. Circuit would distinguish confirmation hearings from disciplinary hearings. The latter involve purely internal proceedings in which the question is almost always whether a member has complied with the rules and standards established by the legislative body. A confirmation proceeding, on the other hand, involves a nominee’s fitness for an executive or judicial office, and it is hard to see why a nominee’s testimony on this subject should be treated differently simply because he happens to be a sitting senator. Therefore, Speech or Debate should not apply to a senator/nominee’s testimony in a confirmation hearing.

It should be noted that in the D.C. Circuit case, Judge Kavanaugh issued a concurring opinion in which he argued that the majority’s distinction between personal and official matters was inconsistent with the text and purpose of the Speech or Debate Clause. He argued instead that “courts must protect, without qualification, a Member’s speech in an official congressional disciplinary proceeding.” He criticized the majority’s “fine splicing” of a Member’s speech, stating that it “does not square with the text of the Constitution, which gives absolute protection to ‘any Speech’ by a Member in an official congressional proceeding.”

Read literally, this language would suggest that Speech or Debate would apply to a senator’s testimony in his own confirmation hearing. For the reasons noted, however, a confirmation hearing is quite different from a congressional disciplinary proceeding. I am not sure that Kavanaugh would take his reasoning quite that far. But perhaps he would. (I note that Professor Josh Chafetz, whom Kavanaugh cites in his concurrence, believes that Speech or Debate protects Sessions’s testimony).

If in fact the Speech or Debate Clause did apply to Sessions’s testimony, it would raise some interesting additional questions. How, if at all, could a senator who committed perjury in his confirmation hearing be held to account after his confirmation to the position in question? The Senate could exercise its disciplinary power with regard to a former member, although this would be highly unusual if not unprecedented step, and it is not clear what penalties it could impose. It could exercise its power of inherent contempt (i.e., trying the former senator before the bar of the Senate for perjury), although this would raise some practical and separation of powers problems when the alleged contemnor is an officeholder in another branch, never mind the chief law enforcement officer of the nation.

Finally, Congress could exercise its power of impeachment. But this would raise another novel question. Would impeachment by the House for conduct committed while a senator itself violate the Speech or Debate Clause? That is, would the House constitute “any other place” within the meaning of the Clause? That remains an open legal question, which fortunately we do not have to resolve today.