Nunes is nuts, but he’s not guilty of obstructing justice.

Three people I deeply respect and admire, Norm Eisen, Caroline Frederickson, and Laurence Tribe, argued yesterday in the New York Times that Devin Nunes is [potentially] guilty of the federal crime of obstruction of justice for his role in the memo. I don’t agree.

Frank Bowman, who has zero sympathy for Nunes, lays out a good rebuttal here. I don’t agree with everything Bowman says here, but I agree with most of it.

I’ll add the following points:

  1. Eisen, Frederickson, and Tribe acknowledge that the Constitution protects members of Congress and their staff from prosecution or civil suits for their “speech and debate”:[F]or any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other place.” They acknowledge that “Speech and Debate” have been interpreted broadly to “extend to legislative acts that are an ‘integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.’”  They argue that in 1972, the Supreme Court held that the Speech and Debate clause did not protect a Senator from bribery prosecution. But a bribery prosecution is so fundamentally different from drafting a memo. A memo is clearly and closely related to speech and debate. Bribery is not. That case seems entirely distinguishable from Nunes’s conduct.  

2. Eisen, Frederickson, and Tribe then cite the case of the Pentagon Papers:

“The clause does not protect activities that courts consider ‘political,’ such as communicating with the executive branch on behalf of constituents, issuing a newsletter or news release or speaking outside of Congress. The most famous example involves Alaska Senator Mike Gravel and his staff, who were involved in the release and publication of the Pentagon Papers. The courts found that the speech or debate protections applied to Senator Gravel’s actions in entering the documents into the record of a subcommittee hearing, but did not apply to actions of the senator and his staff in arranging private publication following the hearing. The reason: The latter conduct was “in no way essential to the deliberations of the Senate.”

I can understand that this case seems to create an opening here for prosecuting Nunes, but the case of Gravel v. United States actually shows how broadly the Supreme Court applies the speech and debate clause: A Senator is protected from prosecution for releasing classified and stolen documents through legislative debate and entering it into committee hearings. Separate acts outside the legislative process would not be protected, but the decision itself is a broad protection of speech and debate. Moreover, it’s worth noting that Gravel v. U.S. was a 5-4 decision, and all four dissenters wanted an even broader interpretation of the clause’s protection of speech. So Gravel is really a precedent for broad vs. broader protection.

Nunes’s conduct went through regular congressional channels. Nunes drafted a memo for the committee, and the House Intelligence Committee voted to release the memo. So is the argument that Nunes would be prosecuted for talking to the media about the memo? The issue in Gravel v. United States was whether a member of Congress could use the Speech and Debate clause to release classified information with immunity. The release of classified information is a more clearly established crime, and arranging separately for its publication in the press is more clearly outside the bounds of legislative affairs. Nunes’s conduct was closer to speech, and it was within the ambit of the legislative process.

3. Nunes’s memo was misleading, and it was motivated by partisan hackery, but do we know that it contained a single untruth, as opposed to mispresentation and deliberate omissions? I’m not suggesting that lying is necessary or sufficient for an obstruction prosecution, but for the creatively novel stretch of obstruction statutes here to a member of Congress for memo writing, I think a starting point has to be lying or some independent crime. Nunes is guilty of the worst kind of spin, and he has permanently damaged the Intelligence Committee. But without falsehoods, the op-ed is calling for an inappropriate stretch of the statute. It is not even a crime to lie to the public. It is thus a problem to criminalize non-false spin to the public, even if it is spin with intent to impede, influence or obstruct. The House Judiciary Committee included in an article of impeachment that Nixon lied to the public, which reflects their understanding that “high crimes and misdemeanors” are not limited to statutory crimes. But we are not talking about prosecuting Nunes, not impeaching him. And the authors are suggesting a prosecution for deceptive speech because of its intent to influence public perceptions. That’s deeply worrisome. Would we accept a call to prosecute a Democratic member of Congress engaging in spin — let’s say misleading spin — to protect Bill or Hillary Clinton over Whitewater or email? I doubt it.

4. My larger concern here is the criminalization of political speech. I have already written about my skepticism of using campaign finance law too broadly based on the ambiguous term “any thing of value” to prosecute Don Jr. I have written about how both sides are dangerously misusing the word “treason.” And I worry that arguments for an overly broad application of obstruction statutes will water down their legitimacy, and could even lead to an understandable argument that these statutes are written too broadly to be applied fairly. We are staring at flagrant obstruction of justice right in our faces with Trump’s firing of Comey. It would be a mistake to take a vitally important obstruction statute with a long-term historic meaning, and stretch that meaning so far to criminalize speech and debate. If we start doing that, then such a statute would be doing more damage than good for our republic.

Update, Feb. 14: On Twitter in response, Tribe and Eisen suggest that other steps in Nunes’s conduct may not have been covered by the Speech and Debate clause. He may have had meetings with the White House to discuss the memo as a plan to give Trump cover to fire Rosenstein and others, and then obstruct Mueller’s investigation. That may be true, and that would be deplorable. But even so, it still is not clear what the criminal act would be. This hypothetical conversation with Trump would be about the memo. For a crime, one needs an actus reus (a “bad act”) and the necessary mens rea (the mental element, like intent, or in obstruction of justice, a corrupt purpose). Even a conspiracy needs to be a conspiracy leading up to an actus reus, an illegal act. The conversation with Trump would help establish the mens rea, but where is the actus reus? It’s not the memo or its drafting, because those are protected under the speech and debate clause. Is it the alleged conversation about a memo? A conversation about a protected speech act is the illegal act? Implausible. That would just be a backdoor to criminalize the protected speech. Tribe suggested that the Nunes memo was not merely speech, but also a “performative” act meant to contribute to obstruction. But in Gravel v. U.S. (a Pentagon Papers case), Gravel’s speech and entering it into a committee report was meant to divulge stolen classified material to the public. That, too, was a performative act, also with the admirable motive of helping end the Vietnam War. If speech suddenly is unprotected because it has some performative aspect, then Tribe’s argument would completely subvert the speech and debate clause.

In an era of anti-dissent authoritarians in the White House and as Attorney General, I’d prefer to have robust protection of speech in Congress and limits on prosecutorial abuse. It surprises me that such smart and well-intentioned lawyers on the left would want less speech protection and less space for an independent Congress to challenge executive power.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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