Democratic lawmakers who appeared in a social media video urging U.S. troops to defy “illegal orders” say the FBI has contacted them to begin scheduling interviews.
[The Senators and Representatives] shall in all Cases, except Treason, Felony and Beach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The speech and debate clause is separate from the arrest clause. The Treason exception only applies to the first part.
Additionally, Treason has a definition elsewhere in this document, and just giving any kind of speech doesn’t meet the standard.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
It would be pretty hard to claim that any kind of speechifying amounts to “Aid and Comfort”, especially if you can’t identify the “Enemy” in a time when the nation is at peace.
Now the first amendment does apply here, but I expect a legal defense to go to this speech and debate clause first, then 1st amendment. Because 1st amendment has a bunch of exceptions of the “yelling fire in a crowded theater” type, but speech and debate is going to be more ironclad. Once you convince a court that you were doing Congressional speech or debate, then the only discipline you can face is from your chamber’s rules, period.
That’s why they immediately jumped to treason, to try and bypass that immunity.
Though my question is: doesn’t this just fall under the first amendment?
The speech and debate clause is separate from the arrest clause. The Treason exception only applies to the first part.
Additionally, Treason has a definition elsewhere in this document, and just giving any kind of speech doesn’t meet the standard.
It would be pretty hard to claim that any kind of speechifying amounts to “Aid and Comfort”, especially if you can’t identify the “Enemy” in a time when the nation is at peace.
Now the first amendment does apply here, but I expect a legal defense to go to this speech and debate clause first, then 1st amendment. Because 1st amendment has a bunch of exceptions of the “yelling fire in a crowded theater” type, but speech and debate is going to be more ironclad. Once you convince a court that you were doing Congressional speech or debate, then the only discipline you can face is from your chamber’s rules, period.
Did their social media video take place in the legislature?
I am not looking forward to potential litigation on that question.