What prevents the DOJ from charging Democrats in Congress under U.S. Code § 2383?

Question

18 U.S. Code § 2383 states

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Members of Congress can be charged for crimes and even removed from office and jailed during their term. Washington Post has an article stating that more than two dozen members of Congress have been indicted since 1980. So it would seem that Congressmen are not immune from prosecution under the Federal law.

A number of legal scholars, including Alan Dershowitz, have made the claim that, given the current fact pattern, "impeaching Trump would be an abuse of power by Congress."

While abuse of power is a separate crime criterion, the act of violating the Constitution in order to attempt to unseat a duly elected President seems to fit the definition of rebellion (because it's an act of insurrection against the law). Of course, whether or not it is such an act is not my decision to make. In our legal system such decision are made by juries at trials (because it's a decision on the facts of the case).

Is there a legal (rather than political) impediment preventing DOJ from charging Congressmen who voted for the impeachment of President Trump?

I understand that, because of the political considerations, this question is hypothetical in nature. But I am asking about the law and not about the politics of it. Politics will change. The legal jeopardy (if it really exists) may remain in place for many years to come.

Answer 1

The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official.

Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute.

Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress

They shall in all Cases, except Treason, Felony and Breach of the Peace, 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.

So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate.

Answer 2

The constitution provides for impeachment and removal. Using a constitutional provision is, by definition, not a rebellion. The constitution gives congress the sole power to impeach and doesn't set any other rules. You might think of the option of impeachment as an anti-rebellion safety valve. An analogy might be a recall vote of a mayor or governor. It is a way, provided by law, to change the leadership of an executive office.

Might an impeachment be done in bad faith? Yes, but the check and balance to that is the trial in the Senate.

Answer 3

The Constitution prevents the DOJ from investigating House Democrats; 18 USC § 2383 is completely irrelevant

The answer to this question has nothing to do with the wording of 18 USC § 2383. Rewriting the statute cannot not make the DOJ investigation legal. No matter what "rebellion" or "insurrection" mean, this investigation would be illegal. The reason is simple: Allowing the DOJ to investigate and then charge members of Congress for improperly impeaching the President would directly violate the Constitution’s system of separated of powers and checks and balances. Such an investigation would implicate two of the checking and balancing provisions – the impeachment power and the speech and debate clause. The investigation would be inconsistent with the plain text of these provisions, with their broader purposes, and with how they have been applied throughout our history. These all make it clear the Constitution does not give the DOJ the power to investigate Members of Congress for impeaching the President.

18 USC § 2383, the DOJ & the “Sole Power” of Impeachment

To allow the DOJ to charge Members of Congress under 18 USC § 2383 for impeaching the President is inconsistent with the plain text of the Constitution. Art. I, § 2 gives the House "the sole power of Impeachment," and the Senate, "the sole power to try all Impeachments." Sole means one and only. In other words, the impeachment power belongs to Congress, and only to Congress.

If the DOJ could charge members for impeaching the President, Congress would no longer have sole power over impeachment. If the DOJ had this power, Members considering impeachment would wonder if they would be charged by the DOJ if they pursued impeachment. They would act accordingly. This is clearly inconsistent with the House having "sole" power of Impeachment. (Ditto for the Senate and the Judiciary. If the DOJ decided to charge a Member, the courts would then have to decide her guilt, which would influence Members' decisions.)

In other words, this scheme rewrites the Constitution to give both the Executive and the Judiciary a share of the impeachment power.

Allowing the DOJ to charge Members with a crime for impeaching the President obviously defeats the purpose of granting the "sole power" of impeachment to Congress, which is to keep the President from corrupting the impeachment process. As Madison said in Federalist 10, "No man is allowed to be judge in his own cause."

Speech and Debate, Impeachment and 18 USC § 2383

Art I, § 6, the Speech and Debate clause says, Members “shall not be questioned in any other place” “for any Speech or Debate in either House.” At first glance it might appear the DOJ investigation could be tailored to satisfy this clause. After all, impeaching the President takes more than speaking and debating. It seems the DOJ could satisfy this clause by basing its charges only on these non-speech, non-debate acts. However, this approach would be inconsistent with precedent and practice, which have given this clause a broader interpretation.

That broader interpretation is based on the purpose of the clause – to protect legislators from persecution and prosecution for doing their job. To prevent the Executive or Judiciary from interfering with legislators, courts have consistently interpeted this clause to cover all (and only) legislative activities, not just “speech and debate.” So today, even those parts of impeaching that do not involve speeches or debates would be covered by this clause.

We’ve seen this argument before!

Ironically, the President’s defenders made a related argument about whether the President could obstruct Justice by firing of James Comey as Director of the FBI, and or by threatening to fire various other DOJ officials. Their argument was: Since the Constitution gives the President the power to fire his subordinates, firing subordinates cannot count as obstructing justice. Some of the President’s defenders even claimed that he could not be impeached for exercising a constitutional power.

At the time, the President’s opponents pooh-poohed this argument, an the President’s allies embraced it. Now, however…

The Bottom Line: The Three Boxes are where it's at!

Separation of powers is often treated as boring, a mechanical exercise of classifying and sorting in the appropriate box: Legislative, Executive or Judiciary. Separation of powers is so unsexy we need a clever song with a catchy tune to make them palatable.

This question shows that separation of powers is where it's at. What seems to be a hard question becomes almost trivial once we see that is really a question about the separation of powers. The truth, as the Founders knew, is that in our constitution, separation of powers and checks and balances do most of the work. Without them, as James Madison put it, the constitution is just words on paper, a “parchment barrier,” that cannot “guard against” abuse of power, large or small.