Preet Bharara:

Hey folks. First, I want to express how overwhelmed the team and I have been by the positive response to the first episode of Stay Tuned In Brief. We really appreciate your support. I’m happy to say that for episode two, we’ve got another great guest, Steve Vladeck. Steve is the Charles Allen Wright chair in federal courts at the University of Texas, School Of Law, where he specializes in National Security Law. He’s also one of the smartest legal voices on Twitter and somebody that I often rely on for in-depth analysis. So that’s why I asked Steve to join me today to help explain what is going on in Georgia with Senator, Lindsey Graham. Graham, as you may know, has been subpoenaed by a grand jury there for his potential role in the effort to overturn the 2020 election results. And he claims he’s protected by the Constitution’s Speech or Debate clause. So we’re going to unpack that. Professor Steve, welcome.

Stephen Vladeck:

Thanks, Preet. Great to be with you.

Preet Bharara:

I’m glad you’re here. My most important question is my first question. Is it Speech and Debate clause like everyone says? Or Speech or Debate clause.

Stephen Vladeck:

I hate to burst bubbles, but it’s Speech or Debate because that’s what they wrote in the constitution.

Preet Bharara:

And you got to go back to the text.

Stephen Vladeck:

Well, so one of the awkward things here is yes and no. The Speech or Debate clause is one of those constitutional provisions where the Supreme Court has said we actually don’t interpret it literally. So there’s an irony there, I think.

Preet Bharara:

There is an irony. Okay. So let’s go to the tape. Let’s go to the clause. In reference to members of Congress, the constitution says, “For any Speech or Debate in either house, they shall not be questioned in any other place.” What the hell does that mean?

Stephen Vladeck:

Well, let’s start with why it’s there. I think it’s there because the founders were trying to ensure legislative independence. And the idea was that the executive branch or the courts, or them together, should be barred from using their investigative and prosecutorial and adjudicative powers to punish, to investigate, to chill the conduct of legislators when they’re actually acting as legislators. So it’s there basically as a means of ensuring legislative protection from persecution by the other branches.

Preet Bharara:

So as a general matter, if a member of Congress is engaging in activity to try to figure out how to vote on a bill or in fact, casts a vote on legislation, am I right that that’s pure legislative activity and you can’t be questioned in any other place about that or prosecuted for that vote.?

Stephen Vladeck:

That’s right. And I would say that I think there’s even consensus that extends to anything that you say in a congressional debate. So if you go onto the floor of the house and you read classified information into the record of the house, you actually probably cannot be prosecuted for what would be a crime in any other place in the United States.

Preet Bharara:

But I’m imagining there’s a limitation that perhaps you can explain. So generally speaking, casting a vote is right within the legislative function. Can’t be prosecuted for that. But what if that vote was purchased by a bribe?

Stephen Vladeck:

Right. So the idea here is that there’s a distinction between what the Supreme Court has called the legislative act that is protected by this Speech or Debate clause and everything else. And so you could not be prosecuted for the vote. You could be prosecuted for being part of a bribe. You could be part prosecuted for the other misconduct related to that. A really good example, Senator Mike Gravel was actually prosecuted after he disclosed parts of the Pentagon papers and the court split on which part was protected, which part wasn’t. They said when he read part of it on the floor of the Senate, when he’s introducing this to the congressional record, that’s protected. But when he’s out in public giving copies of it to the press, that’s not. And so there’s this distinction the Supreme Court has created, but the line of which is not entirely clear between legislative acts, which are protected by the clause, and non legislative or political acts, which are not.

Preet Bharara:

It seems a bit semantic and overly parsing, right? Because the completed crime of quid pro quo involves both the taking of the bribe and the intent and the actual vote because of the bribe. Isn’t it a little weird?

Stephen Vladeck:

Yeah. I think it’s a little weird and I think the whole clause is a little weird because if you read it literally, you started with the text, which was right. The clause is about Speech or Debate in either house. And so it seems like having the clause sweep more broadly to all legislative acts, regardless of where they’re located, goes beyond what the text says. I think that there’s an academic debate to be had about this Speech or Debate clause. And then there’s the question of how it could potentially apply to the Lindsey Graham case. This case law, I think, is relevant to the latter. And what the Supreme Court has said, I think, most relevantly in a case called United States versus Brewster from 1972, the court said the clause does not prohibit inquiry into illegal conduct simply because it’s related to the legislative process or has a nexus to legislative functions. Rather, the clause protects only the legislative acts themselves. So yeah, Preet, it’s a weird distinction, but it’s one that is all through the case law.

Preet Bharara:

So Lindsey Graham has been subpoenaed by a grand jury, duly constituted in Fulton County, Georgia, to answer questions about his conduct and some communications he engaged in with respect to the Georgia election. What is Lindsey Graham’s best argument under this Speech or Debate clause?

Stephen Vladeck:

So I think his best argument is based not on Supreme Court decisions, but on lower court decisions that have defined legislative acts, which again, is the watchword. It’s the real test for this, to include engaging in fact finding and information gathering for legislative purposes. So this is a bit more informal. The Supreme Court has focused on formalities. Are you part of an official investigation? A couple of lower courts have said, even informal fact finding, if it’s part of a broader legislative agenda, it can be protected by the Speech or Debate clause. And I think that’s Graham’s best argument that when he called the relevant officials in Georgia, he was calling in his capacity as a member of the Senate judiciary committee. He was interested in fact finding and information gathering related, not just to what the judiciary committee might be doing, but to what the entire Congress would be doing in the joint session on January 6th. I think that’s where his argument goes.

Preet Bharara:

You know what’s weird about that? And maybe I have this wrong.

Stephen Vladeck:

A lot.

Preet Bharara:

I’m glad you’re here. So when you speak like that about Lindsey Graham and his folks’ argument, that function and legislative acts should be considered very broadly and all these other things that he did that we might argue were extraneous to legislation. He says, “No, no, no. That’s legislative activity.” When the January 6th committee itself says that it’s engaging in hearings and fact finding and inquiry, it seems like the Trump people and the Lindsey Graham type folks say, “No, no, no, no, no.” In that context you read legislative activity and legislative acts very narrowly and they’re going way outside the scope of legislation. Am I right that there’s some disconnect there.

Stephen Vladeck:

Yes. You might even say hypocrisy there. Yes.

Preet Bharara:

Oh, that’s a good word.

Stephen Vladeck:

Fair enough. But it’s called-

Preet Bharara:
It’s the same argument, isn’t it? But it used two different purposes in those two different contexts?

Stephen Vladeck:

Yes. Because in one context, in the January 6th context, the goal is to describe these things as not being legislative act so that they can be challenged as being illegitimate. And in the Graham context, the goal is to describe them as legislative act so that they can be protected by the constitution. So same idea, different applications. But yes, I think there’s a latent inconsistency there for sure.

Preet Bharara:

It’s an inconsistency on the other side. So the people who think that the January 6th committee is dually constituted and its broad activity of investigation falls within legislative activity. Does that mean that one should accept Lindsey Graham’s breadth of scope with respect to legislative activity in questioning people in Georgia?

Stephen Vladeck:

I think the question is what was he doing? If I’m Senator Graham and I’m calling folks in Georgia, because I’m trying to figure out legislation that I want to propose in the next Congress to clean up post-election day procedures, then I think there’s a pretty good case that that falls within at least how lower courts have interpreted the Speech or Debate clause and its definition of legislative acts. But if it’s Lindsey Graham just sort of politicing, the Supreme Court has been clear what it calls political activities are not protected by the Speech or Debate clause, even if they are legitimate, that’s it, even if they are above board.

Stephen Vladeck:

And so I think the question for everyone listening to this, the question for the courts, ultimately, in the Lindsey Graham dispute is, do we actually think Lindsey Graham was making these phone calls because he was thinking about election reform legislation, or do we think he was making these phone calls because he was trying to exert political influence? And if it’s the latter, then that’s not supposed to be protected by the clause.

Preet Bharara:

There’s always a complexity when you’re talking about members of Congress, particularly in the house, because they all have dual roles if they’re running for reelection. They have a role as a legislator and they also have roles as electioneering politicians. How do you separate those two things?

Stephen Vladeck:

It’s hard, but the Supreme Court has been emphatic that you have to draw the line. And so when a member of Congress is out on the stump, the Supreme Court has been clear that what he or she says in that context, what he or she does in that context, is not actually part of this Speech or Debate clause. This is also why I think those lower court decisions that have read the clause to include protection of informal fact finding and information gathering, might actually be wrong. I actually think the way to understand the Speech or Debate clause in a way that’s not going to cause all kinds of mischief is actually to draw the line somewhat more formally so that we have an idea of whether a member of Congress is wearing their official Congress person hat or is wearing their partisan political candidate hat.

Stephen Vladeck:

And I guess if we accept that that’s the line drawing, it may sometimes be tricky, but it’s not obvious to me how good the case is that Lindsey Graham was on the official side of that line in these phone calls and with regard to the other matters on which the grand jury is seeking his testimony.

Preet Bharara:

So I’m confused. And if I’m confused, hopefully some of our listeners are confused too. Not hopefully, maybe they’re all smarter than I am. If the argument in favor of not being called to testify is that it was legislative activity, but as you say, that determination can only be made if we understand what the Senator was doing and what he was saying and for what purpose. If he’s refusing to talk, how do you settle that inquiry?

Stephen Vladeck:

Yeah, well, I hate to cause even more trouble, but this is where the Supreme Court’s jurisprudence gets even a little trickier because the court has said that motive is actually not supposed to be part of the calculus. That court should be resolving these disputes based on an objective assessment of the behavior. And as you say, we’re not fully sure what that behavior was.

Preet Bharara:

Right.

Stephen Vladeck:

So I actually think the answer is to distinguish between an immunity and a privilege. I know that distinguishing is something you’re familiar with, but just to flesh that out. It’s one thing to say that if Graham testifies as to behavior that falls on the protected side of the line, that testimony can’t be used against him for any purpose. It’s another thing to say, he can’t be compelled to testify at all. And that’s why I’m a bit surprised at this point that we had this ruling from the 11th Circuit blocking his testimony at least temporarily in its entirety. Because it seems to me that Graham’s strongest argument here is not that he can be protected from testifying period, except, there are at least some specific questions where his answers would be protected by the Speech or Debate clause. And I think in a perfect world where a judge was trying to just get to the right answer, that is how I would slice the apple.

Preet Bharara:

So you mentioned the 11th Circuit, which is one of the courts of appeals in the country. Could you just explain to folks quickly what happened in the trial court and what’s going to happen next and what your prediction is?

Stephen Vladeck:

Yeah, so it’s another one of those complicated ongoing proceedings. But this is, as you said, a Fulton County grand jury, a state court in Atlanta, Senator Graham went across the street to Federal District Court to seek an order to block his testimony, basically asking the federal court to protect him from the state court proceeding. The federal district judge initially ruled against him and then refused to stay her decision pending appeal. So Graham was actually originally set to appear before the Fulton County special grand jury on August 23rd. Graham then went to the court of appeals, the 11th Circuit and asked them to stay the district court’s ruling while he appeals it, while he challenges it and asks the 11th Circuit to block his testimony. And over the weekend, the 11th Circuit issued a very cryptic order that temporarily blocked Graham’s testimony. Not because they agreed that he couldn’t be compelled to testify, but because they wanted the district court to do a little more analysis on the exact thing you and I have been discussing on the Speech or Debate clause and how it would apply to different facets of his potential testimony.

Stephen Vladeck:

So we expect another decision from the Federal District Court, perhaps as early as the end of the month. So in the next few days, as we’re sitting here recording this, at which point, I imagine, Preet, one, that the district court’s going to say, Graham has to testify. And two, that Graham will then go back to the court of appeals and seek another stay. And if the court of appeals disagrees with him and doesn’t grant it, he may even go to the Supreme Court and ask them to block his testimony. So I think we’re in for a fair amount more of litigation here before Graham ever actually sits before the grand jury. And I think that’s a problem from the perspective of the grand jury, because Fani Willis, the District Attorney has said over and over again, they’re on a schedule. They are trying to complete their investigation. And this is going to slow things down.

Preet Bharara:

Last question on this point, if at the end of the day, the grand jury is still in session and is still meeting and Senator Graham loses all of his appeals and he’s supposed to testify. If he defies that subpoena even then, what happens to him?

Stephen Vladeck:

Well, so at that point, he’s in contempt. And I think the question would just be what kind of contempt sanction does a state trial judge in Fulton County, Georgia wants to impose against the sitting United States Senator. Formally, Preet, as you well know, trial judges have a fair amount of latitude when it comes to what kinds of contempt sanctions they could impose to coerce compliance with a court order here at grand jury subpoena. It could be fines that escalate. I don’t think we’ll get to a point where a trial court judge in Atlanta is ordering the confinement of a sitting US Senator. I doubt it’ll get that far. I think Senator Graham will probably take this all the way to the Supreme Court if he can. And if he loses even there, I suspect eventually and clearly begrudgingly, he’d probably appear before the grand jury. And then, Preet, perhaps invoke his right to remain silent and just not answer questions based on other grounds.

Preet Bharara:

I have about 55 more questions for you, but this is Stay Tuned In Brief. So we’ll have to leave it there. Steve Vladeck, you have a book coming out, tell us the name of the book and when it’s out and then I’ll let you go.

Stephen Vladeck:

The book is called The Shadow Docket. It’s about the rise of unsigned and unexplained Supreme Court decisions that are having ever broader impacts on all of us, perhaps including a future decision regarding a subpoena for Lindsey Graham’s grand jury testimony. And it’s due out from Basic Books early next year.

Preet Bharara:

Professor, Steve Vladeck, thanks for coming on.

Stephen Vladeck:

Thank you.

Preet Bharara:

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me at @Preet Bharara, with the hashtag, #AskPreet. Or you can call and leave me a message at 669-247-7338, that’s 669-24-Preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The Executive Producer is Tamara Sepper. The Technical Director is David Tatasciore. The Senior Producer is Adam Waller. The Editorial Producers are Sam Ozer-Staton and Noa Azulai. The Audio Producer is Nat Wiener. And the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Nama Tasha and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.