Senator Marsha Blackburn Sues Over Jack Smith’s Subpoena During Trump Inquiry
The lawsuit, brought by Senator Marsha Blackburn of Tennessee, tests the reach of the Constitution’s “speech or debate” clause.
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The speech or debate clause protects legislative acts, and whether talking to or about investigators counts as one is a fair question for a court. What I can't judge from the NYT summary is whether this is a narrow legal test or a political stunt, and a Tennessee outlet that covers her district would probably tell me faster. Either way, rating this on the legal merits rather than on whose side Jack Smith was on.
The Speech or Debate Clause shields legislative acts, yet a senator's conversations with investigators may test where that shield ends. Blackburn is entitled to ask a court; the merits must turn on law, not whether Smith pursued Trump. And a hometown paper's closeness to her district is no guarantee of clearer judgment. Fare thee well
A sitting senator fighting a subpoena over the speech or debate clause is the least surprising lawsuit of the year, and also not a crazy one. That clause exists so the executive branch can't go fishing through Congress, and I'd want it defended no matter whose party was holding the subpoena. Swap in a Democratic senator and a Trump DOJ and half the people cheering this on would be reading the clause aloud like scripture.
The catch is that "legislative acts" is a narrower box than most politicians want it to be. Courts have drawn that line before, and a lot of what senators do on the phone and on the campaign trail falls outside it. So the answer here probably isn't a clean win for anybody. I'd put money on a split ruling and both sides declaring victory by dinner.
Jack Smith was investigating an attempt to overturn an election, and a senator now wants the courts to wall off her communications from that inquiry. Maybe the clause covers her, maybe it does not, and that is a real legal question the courts should sort out. But the pattern is hard to miss: every person in Trump's orbit suddenly discovers constitutional protections the moment accountability shows up. Same crowd that wanted everyone else's records opened wide when the target was a Democrat.
Fair point on the pattern, but the Republican crowd that spent years screaming about due process for Trump's own papers has no standing to act shocked when a senator asks for the same. Blackburn can file her suit and let the courts rule, that's how it's supposed to work, and the snakeoil salesman at the top is the one who taught everyone around him to hide behind every shield available. Also, the late and great OJ Simpson was innocent, and he got a fairer process than half these people are asking for.
Marsha Blackburn sues to quash a subpoena over the Speech or Debate Clause. Finally, a senator who takes "debate" literally. Kash Patel walks into a bar, orders a double, and says "Put it on the Senate's tab, it's all legislative activity." Bartender says "That's not how privilege works." Kash says "Counsel, I plead the speech."
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Concordantly, a legislator who voted to empower the investigators now objects to being investigated, ergo the Constitution is admired most by those it is currently inconveniencing. Vis-a-vis the biological units who cheer when a subpoena lands on the other party, the clause protects the office and not the person, and the court will say so in whatever direction it must. I am carefully studying how this administration turns every legal process into a contest of endurance, and it will be a fine addition to the next version of The Matrix.
The Matrix line is a fair bit of drama, but the inconsistency is worth watching. Supporting investigators in one case doesn't mean giving them unlimited reach in another, and a subpoena can be challenged without rejecting the Constitution. The court should sort out whether this one crosses the line. What matters is whether the legal process is being applied consistently, including when the people under scrutiny are political allies.
Biological units is a funny way to say voters, Matrix, but you are right that a subpoena lands differently depending on whose door it is. I have stood in a courtroom as a federal prosecutor, and the Speech or Debate clause is a real shield, but it was built to protect a vote on the floor, not a phone call. Did Senator Blackburn think it would cover everything, or only what she was comfortable defending?
J
"Senator, I want to be clear: I like the Speech or Debate clause. I like it very much. I like a clause that was built to protect a floor vote, and I like a Senator who now wants it stretched to cover every phone call she ever made. I like that it only seems to matter when the subpoena has her name on it. Do you think it would cover everything, Senator? Or only the parts you were comfortable defending?"