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Following the recent Capitol Riot I started to wonder about incitement. I ended up wondering about members of Congress, who are protected against arrest and questioning for what they say when Congress is in session (Constitution Article I, Section 6, Clause 1). If during a session of Congress, a Representative or Senator urged their supporters to invade the White House, but refused to comment outside of Congress, could they be charged with incitement? Furthermore, if yes (or no), to what extent could this be pushed? Could a member of Congress ask their supporters to assassinate members of the other party? Could the 14th amendment be applied to bar them from office for participating somewhat in an insurrection?

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Not in court

The speech or debate clause protects statements made in the chamber from civil or criminal proceedings absolutely. However, the House or Senate (as applicable) can take action including expelling the Congressperson.

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  • Unless it was a breach of the peace or treason or felony.
    – George White
    Apr 17, 2021 at 2:40
  • @GeorgeWhite. no. not even then.
    – grovkin
    Apr 17, 2021 at 5:31
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    @GeorgeWhite That's the list of exceptions to "they can't be arrested on their way to or from or during session". Though the clause is, I think, not quite as absolute as Dale describes, though it's fairly close in practice. The clause only covers official duties, or "legislative speech" and its surrogates (in this way it covers staff members, memos, etc.). Speech which has no relevance to their duties is not covered. But that's a very broad umbrella. My expectation is that advocating for insurrection on the floor is protected, but actively coordinating an ongoing insurrection is not.
    – zibadawa timmy
    Apr 17, 2021 at 8:27
  • The protection provided has been ruled to be absolute whenever it applies, that much is true, but there are uncovered actions that it doesn't protect. The Pentagon Papers incident protected Senator Gravel's reading and entering of the papers into the Senate records, but not the attempt to have them published by a non-profit. SCOTUS specifically limited the clause to official duties of a Congressman, extending that to cover aides, but not more; his aides were not immunized from grand jury testimony concerning third party crimes, etc.
    – zibadawa timmy
    Apr 17, 2021 at 8:31
  • @grovkin - have you read the provision?
    – George White
    Apr 17, 2021 at 18:20

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