I have previously criticized President Donald Trump for his attacks on the media and references to “tough” measures in dealing with protesters or immigrants. Yesterday, President Trump made a disturbing comment to the visiting Guatemalan President about House Intelligence Committee Chairman Adam Schiff. Trump stated that Guatemala would know how to get “tougher” with Schiff over his controversial speech where he pretended to read from an exchange between Trump and his Ukrainian counterpart — a mocking speech that made up incriminating lines. The remark suggested that Trump would prefer a system where legislators and critics could be arrested for such political commentary. No president should express a preference for such abusive legal measures. Trump’s own State Department has documented abuses in the Guatemalan legal system, including mistreatment of political opponents.
Trump lamented that it is unfair that Schiff couldn’t be prosecuted over his conduct during the impeachment inquiry: “When you have a guy like shifty Schiff go out and make up a statement I made – He said this is what I said but I never said it, he totally made it up,” Trump said. “In Guatemala, they handle things much . . . tougher than that and because of immunity . . . he can’t be prosecuted.”
Putting aside the inappropriate use of this state visit for such political venting, the suggestion that President Trump would prefer a system where members could be prosecuted is unnerving and irresponsible. Legislative immunity is a tradition going back to early English law and one of the touchstones of the system created by the Framers. Moreover, it would invited authoritarianism and destroy free speech if the government could arrest people for such political commentary. We have defamation laws to protect against knowingly false statements. However, President Trump is equally unhappy with those laws. In this case, Schiff can claim that he was engaging in political speech that was undeniably mocking and parody. It would not make for an actionable case even under torts.
Members can legitimately support Trump in this impeachment without supporting such statements against another member — and against fundamental aspects of our legal system. Indeed, such statements only make matters more difficult for Senators who want to support the President but do not wish to associate with such statements.