Trump’s Speech or Debate Argument: The Improper Application of a Non-Existent Immunity

In the Supreme Court argument on Donald Trump’s claim of absolute presidential immunity from criminal liability for “official acts,” Trump’s counsel, John Sauer, relied heavily on the Court’s Speech or Debate jurisprudence. See Transcript at 6-8, 31, 34, 36 & 46. Sauer did not go so far as to claim the president was literally entitled to protection under the Speech or Debate Clause, but he contended the issues addressed in the Speech or Debate Clause were “very analogous” to those presented by the criminal prosecution of a (former) president, Tr. at 34, and he argued for the creation of a parallel immunity for the president. Tr. at 36. For the reasons explained below, this argument should be rejected and, even if it were accepted, provides little if any protection for Sauer’s client in this case.

The Speech or Debate Clause provides that “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.” This provision has been interpreted broadly to provide protection beyond its literal terms. It applies not only to speech or debate on the floor of the House or Senate, but to all “legislative acts.” Furthermore, it has been construed to cover not only senators and representatives, but congressional staff and officers. In a recent case arising out of the January 6 investigation, for example, it was held that the clause protected the (former) vice president for legislative acts taken in his capacity as president of the Senate. Finally, individuals covered by the clause are immune not only from being literally “questioned” about their legislative acts, but from being prosecuted or sued for those acts and from having evidence of those acts used against them in a criminal (or civil) case.

But while the Clause has been interpreted “broadly to effectuate its purposes,” United States v. Johnson, 383 U.S. 169, 180 (1966), Trump is attempting to use it in a manner directly contrary to those purposes. The aim of the Speech or Debate Clause is to protect the independence of the legislative branch, particularly against intimidation and threats from the executive branch. See Gravel v. United States, 408 U.S. 606. 616 (1972) (“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.”); Johnson, 383 U.S. at 180-81 (“the privilege was not born primarily of a desire to avoid private suits . . . but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary”). This is precisely what the criminal charges against Trump involve—his attempt to use intimidation, threats, and deceit to interfere with a congressional proceeding and to force the vice president and Congress to bend to his will. It makes no sense to suggest that the Speech or Debate Clause, even by analogy, somehow supports granting him immunity for this conduct.

If anything, the fact that the Constitution explicitly provides (limited) immunity for members of Congress suggests the absence of such immunity for the president and other non-legislative officials. The canon of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) counsels against reading the Constitution to implicitly provide the president with a privilege that is identical (or extremely similar) to the privilege expressly provided to members of Congress.

Trump himself relies on the expressio unius canon (also known as the “negative implication” canon) in another context, arguing that the Impeachment Judgment Clause (“the Party convicted [by the Senate] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”) “presupposes that an unimpeached and un-convicted President is immune from prosecution.” Brief of Petitioner President Donald J. Trump 17 (citing Antonin Scalia & Bryan A. Gardner, Reading Law: The Interpretation of Legal Texts 107 (2012)). But this use of the negative implication canon is far weaker. There is an evident reason why the Constitution only mentions “the Party convicted”—it appears in a clause that limits the judgment the Senate can impose after an impeachment trial, which necessarily applies only to parties convicted and not to those acquitted or never impeached. Cf. Scalia & Gardner, at 107 (noting that canon must be used with “great caution, since its application depends so much on context”). Trump, moreover, does not use the canon in a serious or consistent way because he applies it only to the president, not to the many other officials subject to impeachment.

By contrast, there is no good reason why the framers would have expressly provided the Speech or Debate immunity only to members of Congress if they had intended to provide an identical or highly similar immunity to the president (or others outside the legislative branch). Indeed, in 1800 Senator Charles Pinckney, who had been a delegate to the Philadelphia Convention, explained that the framers had made a deliberate decision to provide specific privileges and immunities, including the Speech or Debate immunity, to members of Congress but not to the president, noting that “[n]o privilege of this kind was intended for your Executive, nor any except that . . . for your Legislature.” 10 Annals of Cong. 74 (emphasis added).

To be sure, the Court has recognized implied privileges and immunities for the president, namely executive privilege in United States v. Nixon, 418 U.S. 683 (1974), and absolute immunity from civil liability in Nixon v. Fitzgerald, 457 U.S. 731 (1982), even though they overlap to some degree with the protections of the Speech or Debate Clause. But these matters are on the periphery of the Clause, and they are the type of protections that are widely available to non-legislative actors in the federal system. For example, as the Court stressed in Nixon v. Fitzgerald, both judges and prosecutors have absolute immunity from civil damages for their official acts, while many other officials enjoy qualified immunity. But here Trump openly asks the Court to create a Speech or Debate-like protection for the president and thereby to grant him an immunity from federal criminal prosecution available to no other person outside the legislative branch. Constitutional text, history, the negative implication canon, and the purpose of the Speech or Debate Clause all argue that the Court should reject this invitation.

Equally importantly, even if the Court were to accept Trump’s proposal to establish a Speech or Debate-like immunity for the president, it would provide him little or no benefit in this case. Although it has been broadly construed, the Speech or Debate Clause is subject to “finite limits.” Doe v. McMillan, 412 U.S. 306, 317 (1973). It applies only to “legislative acts,” which is a narrower category of activity than “official acts” or anything that a member of Congress might do as part of their official functions. See Gravel, 408 U.S. at 625 (“That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.”).

As the Court has explained:

Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be 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 proposed legislation or with respect to other matters which the Constitution places within jurisdiction of either House.

Gravel, 408 U.S. at 625; see also United States v. Brewster, 408 U.S. 501, 515 (1972) (“In no case has the Court ever treated the Clause as protecting all conduct relating to the legislative process.”) (emphasis in original).

Contacts and communications between legislators and the executive branch will frequently fall outside the scope of the Speech or Debate Clause. See, e.g., Gravel, 408 U.S. at 625 (“Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.”). Similarly, constituent service such as arranging for appointments with agencies, helping with social security or immigration matters or with efforts to obtain government contracts, or sending newsletters to constituents is not protected. Brewster, 408 U.S. at 512 (1972). Also unprotected are communications with the media and speeches made outside of Congress. Id. These routine and legitimate activities are nonetheless considered too incidental to the legislative process to be protected by the Speech or Debate Clause.

The Court has also held that discussions about future legislative acts, at least in the context of a promise to perform a future legislative in exchange for a bribe, is not protected by the Speech or Debate Clause. The taking of a bribe itself is not “by any conceivable interpretation, an act performed as part of or even incidental to the role of legislator.” Brewster, 408 U.S. at 525-26. But the discussion of taking a future legislative act in exchange for a bribe is also not protected because “[p]romises by a Member to perform an act in the future are not legislative acts.” United States v. Helstoski, 442 U.S. 477, 489 (1979); see also id. at 490 (“A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.’”).

The Court’s language has left open the question whether all discussions of future legislative acts are beyond the protection of the Clause, or whether only when such discussions are in the context of a bribery or other corrupt scheme. The Court has made clear, however, that the purpose of the Speech or Debate Clause was not “to make Members of Congress super-citizens, immune from criminal responsibility,” and it has rejected arguments that would render members “virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office.” Brewster, 408 U.S. at 516, 518-19. As a practical matter, the Speech or Debate Clause can make the criminal investigation or prosecution of a member of Congress more challenging, but it rarely constitutes an insuperable obstacle to conviction of a member even for activities closely related to their legislative status. Senator Menendez and Representative Cuellar are the latest in a long line of members who can ruefully attest to this proposition.

It would be impossible to apply these principles directly to the president because he is not a member of Congress and has no formal role in the legislative process (unless you count the veto power, which you probably should not). If one were to create an analogous immunity for the president, however, one would begin by identifying core executive powers analogous to the formal legislative activities that have been held to be integral to the legislative process (in addition to speech or debate on the floor, these include introducing legislation, voting, issuing committee reports and subpoenas, and participating in committee hearings and meetings). These might include the exercise of express constitutional powers such as the veto, the pardon and nomination/appointment powers.

None of the charges against Trump involve the exercise of these constitutional powers. A number of the allegations against him involve activities which even Sauer admits were taken in Trump’s personal or political capacity. See Tr. at 28-30 (Sauer’s colloquy with Justice Barrett). Sauer maintains, however, that at least three areas of the charges involve “official acts” that should be immune: (1) Trump’s communications with the American people; (2) Trump’s communications with Congress regarding the electoral count and the procedures to be followed; and (3) Trump’s discussions regarding the potential removal of the acting attorney general and the appointment of a temporary replacement.

The first of these is easy. The president, like members of Congress or anyone else, has the right to address the American people, but that does not make doing so an exercise of his constitutional authority. As already noted, members of Congress may communicate with their constituents or the general public, but such communications are not considered legislative acts and are not protected by the Speech or Debate Clause. By the same token, Trump’s speech on January 6 and his other public communications in connection with his efforts to overturn the election cannot be considered “executive acts” or the exercise of a core constitutional authority. Cf. Blassingame v. Trump, 87 F.4th 1, __ (D.C. Cir. 2023) (“there is no Bully Pulpit Clause in the Constitution”). This is true even if those communications are deemed to be made in his official capacity and therefore to be “official acts.” But see id. (finding that those communications may well turn out to be made in a private capacity as a candidate and therefore beyond even the “outer perimeter” of his official duties).

The second category presents only slightly more difficulty. Assuming Trump’s efforts to pressure Vice President Pence and members of Congress are deemed official acts within the scope of the “outer perimeter” of his duties, rather than private or political acts in his capacity as a candidate, they still should not be considered protected “executive acts” for purposes of criminal immunity. Given that members of Congress have no Speech or Debate immunity for perfectly legitimate efforts to lobby or “cajole” the executive branch or administrative agencies regarding the exercise of their responsibilities, there is no reason why the president’s efforts to lobby in the opposite direction should enjoy a Speech or Debate-like immunity.

Trump argues that his actions may be deemed an exercise of the Recommendations Clause of the Constitution. See U.S. const. art. II, §3 (“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”). This suggestion lacks merit. The Recommendations Clause establishes a duty, not a power, and it refers to recommendations of legislative measures to the Congress as a whole. It does not make the lobbying of individual legislators, even if perfectly routine and legitimate, into the exercise of an executive or constitutional power.

In any event, Trump’s lobbying in connection with the electoral vote count was anything but routine and legitimate. It certainly had nothing to do with consideration of legislative measures since the joint session of Congress has no power to adopt legislative measures. The president also has no constitutional role with regard to the electoral vote count. Thus, Trump’s efforts to interfere with or insert himself into the count could no more be considered an exercise of executive power than would similar efforts with regard to a Senate impeachment trial (or, even more to the point, his own impeachment trial).

Here it should be noted that the lower courts have already had the opportunity to weigh in on the applicability of the Speech or Debate Clause to executive-legislative communications regarding January 6 from the legislative side. The chief judge of the U.S. District Court for the District of Columbia ruled that Pence could not assert Speech or Debate with regard to these discussions because their object was to ask Pence to act in an unlawful or ultra vires manner. In a separate case, the court ruled that Representative Scott Perry could not invoke Speech or Debate with regard to his discussions with the executive regarding Pence’s role. Thus, with respect to the executive-legislative discussions in question, the Speech or Debate Clause does not necessarily afford protection even to those legislative actors who do have a role in the electoral vote count; it would be passing strange for the Court to invent a Speech or Debate-like privilege to protect the president, who has no role whatsoever in the court, with regard to the same discussions.

This brings us to the third category, which involves Trump’s threat to remove the acting attorney general and replace him with another DOJ official, Jeffrey Clark, who pledged to do Trump’s bidding with regard to investigating alleged fraud in the 2020 election. This category is more difficult because it at least relates to the exercise of the president’s constitutional power to remove and appoint officers. As we have seen, however, the mere fact that something relates to the legislative process is not sufficient to warrant Speech or Debate protection; the same is true of actions that merely relate to the exercise of executive power. Here the questions would be whether discussion of future executive acts should be deemed per se outside the scope of the executive power or, if not, whether in this case Trump’s threats to invoke a future executive power in connection with a corrupt scheme for his personal benefit are outside the scope of the executive sphere for the same reasons that the Court gave in Brewster and Helstoski for excluding from the legislative sphere promises to perform future legislative acts in exchange for a bribe. These are questions that would need to be resolved by the Court (or by the lower courts on remand) if it were to recognize a Speech or Debate-like immunity for the president.

In short, the Court would be well advised not to invent a new Speech or Debate-like immunity for the president at all, but, if it should do so, it must take care not to apply it in a manner inconsistent with its own Speech or Debate jurisprudence. The president, like members of Congress, is not a “super-citizen” and should not be treated as such.

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