1 constitutional clause protects Jeff Sessions from Democratic slams

Senate Democratic leader Chuck Schumer and House Democratic leader Nancy Pelosi are calling on Attorney General Jeff Sessions to resign because he neglected to mention in his Senate confirmation hearing that he had met twice briefly with Russian officials when he was asked if he had had contacts with any Russian officials during the presidential campaign.

In the wake of this disclosure, Attorney General Sessions recused himself Thursday from the investigation that will be undertaken into Russian involvement in the U.S. presidential election. And Democrats on the House Judiciary Committee sent a letter Thursday to the Justice Department and the F.B.I. asking for “an immediate criminal investigation into (Sessions’) statements, which could potentially implicate a number of criminal laws including lying to Congress and perjury.”

{mosads}But how relevant are Sessions’ past statements, technically?

Jeff Sessions testified before the Senate Judiciary Committee on Jan. 10, 2017.  At the time he testified, he was a United States Senator from Alabama.  

As Chuck Schumer and Nancy Pelosi surely must know, the Speech or Debate Clause of Article I, Section 6 provides that:  “The Senators and Representatives shall 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.”  

When Senator Sessions testified as a sitting U.S. Senator before the Senate Judiciary Committee his entire testimony became constitutionally privileged speech for which he may not be “questioned in any other place.”

The Supreme Court has interpreted the Speech or Debate clause very broadly. In Gravel v. United States, (1972), the Court ruled that the Clause applies not only to speeches on the floor of each House but also to testimony before congressional committees.  Speech or Debate by legislative aides is protected, as well as speech or debate by members of Congress.  Written testimony is also protected.

Under the Speech or Debate Clause, now-Attorney General Sessions cannot be prosecuted for perjury in his Senate testimony of Jan. 10 nor can he be impeached for it.    To do so would be to question his constitutionally protected speech as a then-U.S. Senator “in another place,” which the Speech or Debate Clause expressly forbids us from doing.

Demanding that Attorney General Sessions resign when the speech, which is complained of is constitutionally protected and “cannot be questioned in any other place” is ludicrous.  Any Senator or Representative who fails to acknowledge that knows nothing about the U.S. Constitution and its history.

Sessions’ immunity doesn’t diminish the danger of Russian interference, however. But there is strong evidence that the ever-feckless Obama administration let our country down in this latest presidential election by failing to protect us from Russian cyber warfare.   

President Obama and his administration failed to protect us from a foreign attack, and we should investigate the Obama administration’s failure on this matter, and then set up our own office of offensive and defensive cyber attack strategies so that nothing like the hacking of Democratic National Committee e-mail accounts by a foreign nation ever happens again in the United States.  

President Obama is the one who decided not to retaliate against Russia, assuming Secretary Clinton would win. The Obama administration’s weakness failed to protect us from our principal foreign adversary and failed to challenge it after the fact.  It is both ironic and fitting that the Democratic Party paid the price for President Obama’s weaknesses.  

Steven G. Calabresi is the Clayton J. and Henry R. Barber Professor of Law at Northwestern University. Mr. Calabresi served as a Law Clerk to Justice Antonin Scalia of the United States Supreme Court, and he also clerked for U.S. Court of Appeals Judges Robert H. Bork and Ralph K. Winter.

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