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Congressional Release of Classified Information and the Disciplinary Power

In reference to my last post, it has been suggested by one of the more faithful commenters at Balkinization, Shag from Brookline, that the Speech or Debate Clause might bar a house of Congress from taking disciplinary action against a member who unilaterally releases classified information without authorization. Shag asks: “Can action by Congress trump the specific Speech and Debate [sic] clause? Is such Speech and Debate permitted to be questioned in a house of Congress with such action but not in any other Place? Does the First Amendment speech clause enhance or detract from the right (privilege) of a member of Congress under the Speech and Debate [sic] clause?” Shag goes on to ask how the original understanding of and historical practice under the Speech or Debate Clause might be applied in the context of “the fairly recently evolved national security state.”

As legal questions go, the ones Shag asks with regard to the Speech or Debate Clause have very straightforward answers. The text of the Clause is clear that it applies only in “any other Place,” i.e., outside the legislative branch. See, e.g., Howard v. Office of the Chief of Administrative Officer, No. 12-5119 (D.C. Cir. June 28, 2013) (“because the Office of Compliance process occurs within the Legislative Branch, not in a ‘other Place,’ the Speech or Debate Clause does not pose an issue in those cases”) (Kavanaugh, J., dissenting); see also United States v. Brewster, 408 U.S. 501, 517-21 (1972) (discussing the fact that misconduct protected by the Speech or Debate Clause may nonetheless be punished by either house under its disciplinary power). As far as I know, no member has ever asserted the Speech or Debate Clause, either as a defense or as a protection against inquiry, in the course of a congressional disciplinary proceeding. Nor has any scholar, court or anyone else with expertise on the Clause suggested that it could apply in a congressional proceeding. Put simply, a member who faces disciplinary action as the result of disclosing classified information can take no solace in the Speech or Debate Clause.

The question with regard to the First Amendment is slightly more complicated. We recently discussed, in the context of the Rangel case, the question of whether and to what extent constitutional protections apply in congressional disciplinary proceedings. As Outside Counsel’s report indicates, even if such protections apply, they cannot be applied in a rigid manner that ignores the unique nature, purpose and history of congressional disciplinary proceedings. Thus, while one can imagine a plausible First Amendment defense in a congressional disciplinary proceeding (say, for example, if the House or Senate sought to punish members who give interviews to a disfavored press outlet), it is unthinkable that the First Amendment would prevent the House and Senate from enforcing rules that are broadly consistent with traditional limitations on member speech. For example, members cannot claim a First Amendment right to violate rules of decorum and debate, by say interrupting another member who has the floor, using foul language in congressional proceedings, or insulting the President.

Is there a colorable argument that disclosure of classified information by a member deserves First Amendment protection from congressional discipline, perhaps because of the importance of such disclosure in checking “the fairly recently evolved national security state”? Put me in the deeply skeptical camp on that one. Both the House and Senate have had specific prohibitions against unauthorized disclosure of classified information for decades. Punishing members for unauthorized disclosure of secret information goes back even further. On December 31, 1810, it is reported: “The Senator from Massachusetts (Mr. Pickering) was censured for reading from confidential documents in the Senate in open session before the injunction of secrecy had been removed.” Riddick’s Senate Procedure 270 n.1. It is hard to imagine the House and Senate intelligence and ethics committees agreeing that individual members have a constitutional right to violate congressional secrecy rules just because they believe the public interest requires it.

Whatever the merits of such a constitutional argument, however, it will be weaker if a member makes it without first attempting to use the established congressional procedures for releasing classified information. This was my original point, and if Professor Ackerman or anyone else disagrees, they should explain why.

3 Comments

  1. Of all the things covered in the comments in Balkinization, the thing that piqued my interest most was the question (phrased a different way), “What if the government chose to charge Wyden with violating the Espionage Act (a felony)?” The Speech or Debate Clause seems to potentially carve out an exception for that (although it could be worded better), and there isn’t a whole lot of case law on point to my knowledge.

    So here’s a hypo I’d like your take on. Assume that Jeffrey Sterling is found guilty of violating the Espionage Act in his criminal case (http://legaltimes.typepad.com/blt/2013/07/fourth-circuit-voids-protection-of-reporter-in-leak-case.html). For the purposes of this hypo, let’s assume that he actually did everything that he is accused of doing and actually is the leak.

    Now imagine that instead of giving the information to Jim Risen directly, Sterling gave the information to Ron Wyden, who then revealed it during an open Senate hearing.

    Does the Speech or Debate clause protect Wyden from a felony prosecution for violating the Espionage Act?

    This all depends on what that semicolon means. If the second half is completely independent from the first half, then even felonious speech or debate that constitutes treason and a breach of the peace is protected from prosecution because it is “any Speech or Debate,” but if the “except Treason, Felony, or Breach of the Peace” applies to both halves, then it gives a completely different result.

    Gravel and Williamson before it seem to suggest that the semicolon completely separates the first clause from the second, such that even felonious speech or debate is protected. They don’t come out and say that, but Williamson says that the term “Felony” in the Constitution means all crime, not just what we call “felonies” now, and Gravel refers to the second clause as “another vital privilege.” If “Felony” does indeed mean all crime, then the ruling in Gravel doesn’t make a lot of sense.

    I just wish that they made it a little clearer than this (my emphasis):

    In recognition, no doubt, of the force of [the first] part of § 6, Senator Gravel disavows any assertion of general immunity from the criminal law. But he points out that the last portion of § 6 affords Members of Congress another vital privilege — they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of § 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer — either in terms of questions or in terms of defending himself from prosecution — for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower courts.

  2. I wonder whether the following formulation would make the matter more or less clear, in your estimation: “Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.”

    This language, which appears in the Articles of Confederation, seems to me could be read in the manner you suggest, so that the final clause qualifies both the speech and arrest privileges. However, no one would have read it this way because the speech and arrest privileges were distinct parliamentary privileges with long histories and everyone understood that the exception for “treason, felony or breach of the peace” applied only to the arrest privilege. (see generally Josh Chafetz’s Democracy’s Privilege Few). There would have been little point to a privilege protecting speech in Parliament or Congress if members could be criminally prosecuted for engaging in that speech.

    While the Articles of Confederation might be literally read in the manner you suggest, I am not sure that this is the case for the language of the Constitution. In order for the exception arguably to apply to the speech privilege, wouldn’t one have to eliminate both the semi-colon and the second “they shall” in the operative sentence?

    In any event, no one has ever suggested that the “Treason, Felony and Breach of the Peace” exception applies to the Speech or Debate Clause. Not only Gravel, but all of the other Supreme Court cases (Johnson, Brewster, Helstoski) dealing with the Clause in the criminal context would either have come out differently or been a whole lot shorter in their reasoning if the exception applied.

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