Can The Capitol Insurrection Result In Prosecution Of Members Of Congress?

By The Insider, Contributor

  Can the Capitol Insurrection Result in Prosecution of Members of Congress?

On August 30, the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) issued requests to various companies to preserve phone records for hundreds of people whose records the committee may want to review. The letters identified records for, among others, current members of Congress, suggesting the Select Committee may issue subpoenas to these companies to obtain personal data for the specified lawmakers. Not surprisingly, news of the preservation requests ruffled some lawmakers’ feathers and prompted questions about the enforceability of any subpoenas the Select Committee may issue. Congressional inquiry, however, may not be lawmakers’ only concern.

  In principle, the Select Committee possesses the authority to subpoena legislators’ telephone records. As a practical matter, however, the Select Committee will struggle to enforce quickly any subpoena requests. Enforcement will become particularly tricky if legislators try to thwart the Select Committee’s requests, as some already have threatened to do through statements that they will retaliate against companies that cooperate with the investigation.  Without streamlined enforcement power, congressional investigations can be a relatively cumbersome way to identify wrongdoing.

Congress, however, is not the only body that can investigate lawmakers’ involvement in the January 6th Capitol insurrection.  The Department of Justice may explore criminal violations by members of Congress in connection with the attack on the Capitol. Using grand juries, federal prosecutors can investigate the same conduct more nimbly than can Congress. Grand jury subpoenas provide broad subpoena power, and federal prosecutors have strong tools for enforcing compliance with grand jury subpoenas. The grand jury’s sweeping investigative powers—and the absence of any applicable policy, privilege, or immunity shielding members of Congress from prosecution—will allow prosecutors—if they deem it justified—to investigate and indict lawmakers for criminal activity related to the Capitol attack.     

WASHINGTON, DC - JANUARY 06: A large group of pro-Trump protesters stand on the East steps of the Capitol Building after storming its grounds on January 6, 2021 in Washington, DC. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers. Trump supporters gathered in the nation's capital today to protest the ratification of President-elect Joe Biden's Electoral College victory over President Trump in the 2020 election. (Photo by Jon Cherry/Getty Images) Getty Images

 The Select Committee’s Investigative Power

In July 2021, the U.S. House of Representatives formed the Select Committee to investigate the January 6th attack on the Capitol. The Select Committee called for the production of records from government agencies and social media companies on August 25. On August 30, the Select Committee issued instructions to 35 social media, email, and telecommunications companies to preserve routinely kept records which may be relevant to the investigation.  The preservation requests target the records of hundreds of individuals who participated in or potentially helped plan the riot, including current lawmakers. The Select Committee’s chairman explicitly stated that the panel intends to figure out the extent to which members of Congress participated in the insurrection. 

The preservation requests seem relatively straightforward, as does the Select Committee’s authority to demand these records by subpoena, and these demands have precedent in recent historyAs of September 9, the Select Committee had already received thousands of documents in response to their August 25 letters. Because the Constitution does not expressly authorize Congress to punish witnesses for contempt, however, the Select Committee has limited options for enforcing its subpoena power. One option is for Congress to send its sergeant-at-arms to arrest the offender, who is then tried before the House and who may ultimately be detained in the Capitol itself. Neither Chamber has done so since 1935, rendering this power almost exclusively theoretical.  The House may vote to refer the witness who fails to comply with the subpoena to the United States Attorney for the District of Columbia for criminal prosecution for contempt of Congress under 2 U.S.C. § 192. A third option is to file a civil suit in federal district court directing compliance with the subpoena, which will cause a substantial delay.  Accordingly, if a member of Congress tries to obstruct a company from turning over his or her records to the Select Committee, the Select Committee has limited recourse for ensuring prompt compliance.

Federal Criminal Prosecutions: A Potent Option

Federal prosecutors have been investigating the Capitol attack as well. Since January 6, federal prosecutors have charged more than 600 defendants with crimes ranging from conspiracy to property destruction, theft, and violent crimes.  In the six months following the insurrection, prosecutors charged nearly 235 defendants with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so. Members of Congress are not immune from becoming targets of such an investigation.  The Select Committee is looking into sitting members’ involvement in the Capitol attacks. Federal prosecutors, not known to be shy, can as well.   

If found to have aided participants in the Capitol insurrection, members of Congress could face a variety of federal criminal charges, including aiding and abetting, obstruction of justice, and conspiracy. In the days and weeks before the riot, a handful of House Representatives promoted the January 6th rally, encouraging their supporters to travel to the nation’s capital for the protest. Some lawmakers may have communicated with leaders of Stop the Steal and other protest organizers in the lead up to the riot. Other members of Congress have been accused of giving tours of the Capitol just days before the attack.

Assume hypothetically that a representative spoke with rioters over the phone in the days before the attack, or while the attack was in progress. Such a lawmaker could be investigated and, if facts warrant, possibly charged with aiding and abetting an offense against the United States under 18 U.S.C. § 2, or obstructing an official proceeding under 18 U.S.C. § 1512(c)(2). In theory, the member of Congress could also face conspiracy charges under 18 U.S.C. § 371 for coordinating with protest organizers to hinder Congress’s certification of the Electoral College vote. 

Prosecuting Members of Congress

Assuming a federal prosecutor can build a case, the next question is whether a member of Congress is subject to criminal prosecution in connection with the January 6th attack on the Capitol. The answer to this question is yes. For starters, no Department of Justice policy exists that would shield members of Congress from prosecution while in office. Moreover, the Constitution’s Speech or Debate Clause, sometimes an obstacle to charging members of Congress who act in their official capacity, presents no immunity from prosecution for communicating with constituents to plan an attack on the Capitol.

The Speech or Debate Clause provides that “[F]or any Speech or Debate in either House,” members of Congress “shall not be questioned in any other place.” The Speech or Debate Clause has been interpreted as providing general civil and criminal immunity to members of Congress for all legislative acts taken while carrying out their official duties. Importantly, the Speech or Debate Clause does not apply to non-legislative functions. The United States Supreme Court has ruled that lawmakers may be prosecuted for conduct arising from activity that is not a core “part of the deliberative and communicative processes by which” they consider proposed legislation. The immunity only extends to conduct that is “clearly a part of the legislative process,” not the “wide range of legitimate ‘errands’” members of Congress perform for constituents. In 1972 in the case of U.S. v. Brewster, the United States Supreme Court refused to extend the Speech or Debate Clause’s protections to speeches delivered outside Congress, preparing newsletters to constituents, or other activities “performed in part … because they are a means of developing continuing support for future elections.” The immunity does “not extend beyond what is necessary to preserve the integrity of the legislative process.” The Speech or Debate Clause only protects communications with third parties when those conversations relate to the process of legislating. 

The question remains whether the hypothetical House Representative who communicated with rioters ahead of January 6 could plausibly be protected by the Speech or Debate Clause. Because the purpose of the Capitol siege was to prevent Congress from certifying the Electoral College vote, the hypothetical Representative might argue that he is protected by the Speech or Debate Clause because the conduct touches upon one of Congress’s core legislative functions.  Whether the court would give any traction to such an argument remains to be seen.  Conversely, collaborating with individuals planning an attack on the Capitol does not relate to the process of considering or voting upon proposed legislation.  Trying to prevent fellow members of Congress from certifying the Electoral College vote does not “preserve the integrity of the legislative process.”  Even if a Representative thought that plotting the insurrection with constituents would be a legitimate way of building “support for future elections,” Brewster eliminates the Speech or Debate Clause’s protections. 

Gathering Evidence through Grand Jury Subpoenas

Prosecutors considering indictment for aiding and abetting, obstruction of justice, or conspiracy may want access to the lawmaker’s phone records, such as call logs and cell tower location information, directly from the lawmaker’s telecommunications company to determine with whom the lawmaker spoke and when. If federal prosecutors decide to investigate members of Congress in connection with the Capitol attack, the grand jury process enables them to gather information quickly and efficiently. Federal grand juries have sweeping authority to investigate suspected violations of law and may subpoena documents like phone records without prior authorization from any court. Grand juries do not need court approval to issue an indictment, either. Absent any constitutional or testimonial privileges, courts typically assist grand juries in securing compliance with subpoenas. Unlike a House committee subpoena, a grand jury subpoena can be enforced quickly against the telecommunications company. The Federal Rules of Criminal Procedure authorize courts to hold in contempt witnesses who, absent adequate excuse, disobey subpoenas issued by federal courts in that district. 

A separate question is whether prosecutors could use grand jury subpoenas to obtain relevant phone records directly from the member of Congress. The Speech or Debate Clause has been interpreted to prohibit evidence of legislative acts. Some appellate courts have interpreted the Speech or Debate Clause to prohibit compelled disclosure of written legislative materials. Regardless, records documenting a lawmaker’s phone communications with rioters likely fall outside the scope of “legislative materials” contemplated by the appellate courts, insofar as coordinating a violent attack on the Capitol is not a regular part of the legislative process.  

Conclusion

Prosecutors can investigate and, if the facts warrant, pursue prosecutions of members of Congress for conduct connected with the January 6th Capitol attack.

To read more from Robert J. Anello, please visit www.maglaw.com.

Jorja Knauer, an attorney with Morvillo Abramowitz, assisted in the preparation of this article.


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