A Discussion of Congressional Legal Issues
On a Lawfare Podcast this week, I spoke with Molly Reynolds of the Brookings Institution and Donald Sherman of Citizens for Ethics and Responsibility in Washington about congressional oversight, the confirmation process and the “recess appointments gambit” (as Molly has termed it) floated as a means of circumventing advice and consent for the incoming Trump administration.
Sure to be an instant Thanksgiving classic!
As you have probably heard, the president-elect (well, the expected president-elect) has expressed the intention to nominate Matt Gaetz as the next attorney general of the United States. Gaetz’s qualifications include some experience with the criminal justice system, though more on the criminal than the justice side, as well as being possibly the most-disliked person on Capitol Hill.
Until two days ago Gaetz was also a member of the U.S. House of Representatives and the subject of a long-running ethics investigation, which was announced by the Ethics Committee on April 9, 2021:
The Committee is aware of public allegations that Matt Gaetz may have engaged in sexual misconduct and/or illicit drug use, shared inappropriate images or videos on the House floor, misused state identification records, converted campaign funds to personal use, and/or accepted a bribe, improper gratuity, or impermissible gift, in violation of House Rules, laws, or other standards of conduct. The Committee, pursuant to Committee Rule 18(a), has begun an investigation and will gather additional information regarding the allegations.
If these allegations do not scream “chief law enforcement officer material” to you, well I guess we know why the voters did not decide to entrust you with the nuclear codes.
Continue reading “Can Senate Judiciary Compel the Production of the Gaetz Ethics Report?”
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.
Continue reading “Would Speech or Debate Protect Attorney General Sessions from Prosecution?”