Can Trump be Prosecuted for Violating the Speech or Debate Clause?

According to media reports, the target letter received by former President Donald Trump on July 16, 2023, indicates that he may be charged by the grand jury with violating 18 U.S.C. §241, a Reconstruction-era law that criminalizes the following conduct:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

This provision has not been previously discussed as a possible charge arising out of the January 6 attack on the Capitol, and its inclusion in the target letter seems to have taken many observers by surprise. In what way could Trump’s conduct be said to violate this statute?

One possibility is that Trump conspired to “injure” the “free exercise or enjoyment” of the right to vote of those persons who elected Joe Biden as president by seeking to overturn the results of the election. Another is that he conspired to injure the rights of those voters who voted for Biden electors in the seven states where he sought to replace them with the “fake electors.” On its face, though, this seems like a somewhat strained reading of the statutory language, which is more naturally read to apply to direct interference with someone’s rights, rather than with the benefits that might ordinarily flow from the exercise of such rights. (Another possible problem is that the right to vote for president is initially granted by state, rather than federal, law).

Perhaps Trump conspired to “injure” or “oppress” the free exercise of the right to vote by presidential electors in those states where he sought to replace them. The Constitution  grants electors appointed by the states the right to vote for president and, while Trump did not directly interfere with their right to cast their votes, he clearly attempted to prevent their votes from being either opened or counted. This seems to me like a better fit with the statutory language, but it is still somewhat problematic. An attempt, even by fraud or other illegal means, to influence Congress or the vice president in how they treat the certificates of presidential electors  arguably does not implicate any personal right or interest of the electors themselves and is awkwardly described as an attempt to injure or oppress the rights of the electors.

This leaves one other possibility (that I can think of). Perhaps Trump conspired to “injure, oppress, threaten or intimidate” the vice president and/or members of Congress in the free exercise of their rights to participate and vote in the electoral count on January 6, 2021. Indeed, that seems like a fairly straightforward description of some of Trump’s actions. There can be little doubt, for example, that Trump openly tried to threaten and intimidate Vice President Pence with regard to his role in the electoral count process. (Whether some or all of that conduct is protected by the First Amendment is a separate question.).

There is a possible objection here too. The vice president’s role in the electoral count is arguably of a purely ministerial nature (indeed that is what Pence said in declining the invitation to disregard Biden electors) and thus might not involve any “right or privilege” secured by the Constitution or federal law. Furthermore, while federal law purports to give members of Congress the authority to vote on certain objections to presidential electors, it is also debatable whether this (constitutionally questionable) authority constitutes the kind of “right or privilege” that section 751 is intended to protect.

Here, however, Special Counsel Jack Smith may have some ammunition in the Speech or Debate Clause, which (as we all know) provides that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” This protection is typically described as a privilege or immunity of members of Congress, and the Supreme Court has explained that it “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.” Gravel v. United States, 408 U.S. 606, 616 (1972) (emphasis added). To the extent that Trump used threats or intimidation (beyond the protection of the First Amendment) to interfere with the electoral count process, he arguably sought to “threaten” or “intimidate” the vice president and/or members of Congress in the free exercise of the right and privilege of speech, debate, and deliberation protected by the Speech or Debate Clause (as well as the 12th amendment and Electoral Count Act).

It could be argued that the Speech or Debate Clause applies to debates and deliberation over legislation and other matters which the Constitution places within the jurisdiction of either House, but not to the ministerial and ceremonial electoral count, which ordinarily involves no debate or deliberation of any kind. However, this argument is substantially undercut by the fact that the chief judge of the US District Court for DC recently agreed with former Vice President Pence that the Clause applies to the electoral count proceeding and the vice president’s role therein. Furthermore, in a separate case, currently pending before the DC Circuit, Representative Scott Perry is similarly arguing that the Clause should protect his activities related to the electoral count. While the district court in Perry’s case did not agree with his views on the extent to which the Clause would protect him from compelled production of his cell phone records, it did agree that the Clause applied to the electoral count proceeding:  “Given that certification of the Electoral College vote is a matter which the Constitution places within the jurisdiction of both Houses of Congress, activities necessary and integral to fulfilling that task are entitled to Clause protection.”

Indeed, if this turns out to be the theory that the special counsel is using to support a charge under section 451, it would not be surprising if he got the idea from the litigation initiated by Pence (who quoted the above-referenced language from Gravel in his motion to quash) and Perry.