As reported by Newsweek, Rep. Mikie Sherrill (D., N.J.) has gone public with an extraordinary allegation against some of her colleagues that they conducted secret surveillance in a conspiracy with rioters at the Capitol. If true, those members could be criminally charged and expelled from the House. Conversely, if Sherrill has no such evidence, she could (and should) face a resolution of censure or resolution.
Sherrill said in a Tuesday night Facebook live address to her constituents that she witnessed the surveillance personally. She said unidentified members of Congress “had groups coming through the Capitol” in “a reconnaissance for the next day.” Sherrill pledged to see those lawmakers “are held accountable, and if necessary, ensure that they don’t serve in Congress.”
You can watch the whole taped discussion here and the statement comes near the end around 1215 mark.
That is an unambiguous allegation of criminal conduct against colleagues. Once she names a member, she could also be the subject of a defamation action. This was a statement made off of the floor and not protected under the Speech and Debate Clause. It is coming from a member who was a former Navy pilot and a federal prosecutor. In fairness to Sherrill the reference to helping do “reconnaissance” came in a list of pledges. She could clarify that she was not alleging that these members helped in such reconnaissance. She she stands by the apparent allegation, it could leave Congress to two and equally unpleasant inquiries.
Article I, Section 5, the Constitution says, “Each House (of Congress) may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” The House may discipline members for violations of both unlawful conduct as well as any conduct which the House of Representatives finds has reflected discredit upon the institution. In re Chapman, 166 U.S. 661, 669-670 (1897). A House Select Committee in 1967 stated:
Censure of a Member has been deemed appropriate in cases of a breach of the privileges of the House. There are two classes of privilege, the one, affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings; and the other, affecting the rights, reputation, and conduct of Members, individually. Most cases of censure have involved the use of unparliamentary language, assaults upon a Member or insults to the House by introductions of offensive resolutions, but in five cases in the House and one in the Senate [as of 1967] censure was based on corrupt acts by a Member, and in another Senate case censure was based upon noncooperation with and abuse of Senate committees.
Censure or reprimand is not the only possible response if this allegation is found to be without basis. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, they must show actual knowledge or reckless disregard of the alleged falsity. Obviously, truth remains a defense. Under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases, the Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.”
If members did conspire as alleged by Rep. Sherrill, they could be expelled for that criminal act. They would also face prosecution. It would be a betrayal of not just Congress but the country.
Thus far, Sherrill has not named names but pledged to seek accountability. The question is whether she will now identify members who she has accused of a criminal conspiracy. Indeed, one would think that she would have already gone to the FBI and filed a criminal complaint. Absent naming the members, any defamation action would have to be based on the highly difficult basis for a group libel claim of all Republican members. Such an action would be highly unlikely to succeed. In Neiman-Marcus v. Lait (1952), a New York federal district court addressed a defamation claim arising from the publication of the book “U.S.A. Confidential.” The author wrote that “some” models and “all” saleswomen at the Neiman-Marcus department store in Dallas were “call girls.” It also claimed that “most” of the salesmen in the men’s store were “faggots.” The store had nine models, 382 saleswomen and 25 salesmen. The court found the size of the group of women was too big to satisfy a group libel standard. However, the size of the group of salesmen was viewed as sufficiently small to go to trial.
The Sherrill controversy arises as another member has deleted a tweet calling for the expulsion of a colleague based on her alleged connection to rioters. Rep. Mondaire Jones, D-N.Y., called for the expulsion of Rep. Lauren Boebert, R-Colo., after a tweet falsely claiming that Boebert was shown in a 2019 photo with people who were among those who rioted in the Capitol.
This is clearly something that the House must investigate. Either Sherrill has evidence of a criminal conspiracy or has made an outrageous (and defamatory) allegation against her colleagues. Either possibility is unsettling. Thus, Sherrill should reveal the House members who she believes conspired with rioters, which presumably she has already given to legal authorities.