Gag Order: Congressmen Aren’t Allowed To Speak About Impeachment


 The GOP-controlled House of Representatives is prohibiting Members of Congress from discussing impeachment of President Trump, when they give speeches on the Floor of the House.


When I first heard about this, back in May of 2017, my jaw dropped.  Under the Constitution, the U.S. House of Representatives is the body responsible for impeaching the President of the United States.  So how could Members of Congress be forbidden to talk about it?


On Feb. 2, 2017, Rep. Pocan (D-WI) said that if the President issues an unconstitutional executive order, then the House would have to “explor[e] the power of impeachment.”  The immediate response from the GOP Speaker pro tem presiding over the House was this: “Members are reminded to refrain from engaging in personalities toward the President.”  End of discussion.


On May 17, 2017, Rep. Al Green said “I stand for impeachment of the President.”  The response from the Speaker pro tem: “Members are reminded to refrain from engaging in personalities toward the President, such as accusations that he committed an impeachable offense.”  End of discussion.


Also on May 17, 2017, Rep. Espillat (D-NY) said “if the latest reports are true, the way Trump chose to interfere with the FBI investigation of National Security Advisor Michael Flynn [is] impeachable.” The Speaker’s response: “Members are reminded to refrain from engaging in personalities toward the President.”  End of discussion.


On May 25, 2017, Rep. Sheila Jackson Lee (D-TX) said “now is the time for an impeachment inquiry.”  The Speaker’s response: “Members are reminded to refrain from engaging in personalities toward the President.”  End of discussion.


On Sept. 26, 2017, Rep. Green said, “I will call for impeachment of the President of the United States.”  The Speaker’s response: “Members are reminded to refrain from engaging in personalities toward the President.”  End of discussion.


On October 11, 2017, Rep. Green (D-TX) found a way to discuss impeachment without being gagged: he simply read his articles of impeachment into the record.  That drew a ruling from the Speaker pro tem that he wouldn’t authorize any further discussion of the articles on the Floor, but at least Green wasn’t interrupted and gaveled down.


On October 12, 2017, Rep. Green (D-TX) said that he wasn’t happy about Trump using the term “SOB” to question the motherhood of political opponents:  “I am going to move forward with those Articles of Impeachment, and motherhood is sacred.”  The Speaker’s response: “Members are reminded to refrain from engaging in personalities toward the President.”  End of discussion.


Note that every Member who drew the admonition is a Democrat.  This is a one-way street.  Republicans are allowed to use the “I-word” whenever they want.  On June 8, 2017, for instance, Rep. Bacon (R-NE) said, “Today, some are calling for impeachment of our President.  With the facts that we have, it is wrong.”  No rebuke.


On Sept. 14, 2017, Rep. Gohmert (R-TX) posing as the voice of reason, pointed out that if the GOP passes a bill that makes people pay more for health insurance, “the first order of business in January 2019 probably would have been [sic], when we lost the majority, the impeachment of Donald Trump.”  No rebuke.  So in the GOP-led House, defending the President from impeachment is fine, but making the case for impeachment is not.


There have been a handful of exceptions during what is called the “special order hour,” when a Member or a group takes a whole hour to talk on the Floor of the House, late at night.  It is very bad form to interrupt a special order hour, and they happen so late that no one is paying attention, anyway.  (At that late hour, the only place you’re likely to find a D.C. political reporter is in a bar.)  On March 29, during an hour-long block of speeches hosted by the Progressive Caucus, Rep. Maxine Waters (D-CA) managed to say, “I say impeach Donald Trump.”  That one slipped by.


So what’s going on here?


The GOP Speaker pro tem purports to be relying on Rule XVII, clause 1(b) of the Rules of the House, which states: “Remarks in debate (which may include references to the Senate or its Members) shall be confined to the question under debate, avoiding personalities.”  That seems ambiguous at best.


Jefferson’s Manual is an annotation of rulings on House procedural questions, like this one.  Section 370 of Jefferson’s Manual is the part that enumerates rulings on the meaning of this House Rule.  Section 370 begins by points out that the English Parliament’s rule against speaking “irreverently” against the King is “manifestly inapplicable to the House” (because . . . we don’t have a King.)


The only part of Section 370 that addresses debate on impeachment is this one:


Although wide latitude is permitted in debate on a proposition to impeach the President (V, 5093), Members must abstain from language personally offensive (V, 5094; Dec. 18, 1998, p. 27829); and Members must abstain from comparisons to the personal conduct of sitting Members of the House or Senate (Dec. 18, 1998, p. 27829). Furthermore, when impeachment is not the pending business on the floor, Members may not refer to evidence of alleged impeachable offenses by the President contained in a communication from an independent counsel pending before a House committee (Sept. 14, 1998, p. 20171; Sept. 17, 1998, p. 20758), although they may refer to the communication, itself, within the confines of proper decorum in debate (Oct. 6, 1998, p. 23841).


A fair reading of this provision is that it’s inviting debate on impeachment, i.e., “wide latitude.”  That last part there is, frankly, gibberish, and hardly justified imposing a gag order on Members who want to talk the weighty Constitutional issue of whether the President should be impeached.


There is also an undercurrent in Section 370 that Members simply shouldn’t be overly critical of the President, to avoid “exciting antagonism” by “other branches of government.”  Clearly, there are some kinds of limits in that regard, which the GOP tested over and over again during the Clinton Administration.  On Nov. 18, 1995, during a government shutdown, for instance, Congressman John Mica, my Congressional neighbor to the north, called President Clinton a “little bugger.”  Section 370 notwithstanding, Mica avoided a one-day “time out” (called “taking his words down”) by a narrow 199-189 vote, with 26 abstentions.  Section 370 lists that as an example of “personal abuse, innuendo or ridicule” that should be avoided, although when push came to shove, the House was unwilling to punish it, even with the largely symbolic time-out.  Section 370 also disapproves of Rep. Pete Stark’s (D-CA) 2007 statement that President George W. Bush was sending “kids” to Iraq “to get their heads blown off for the President’s amusement,” but the House also voted down a censure motion against Stark, too.


People in power generally exercise their power under cover of a thin veneer of legality.  That’ s how it’s done.  House Rule XVII and Section 370 of Jefferson’s Manual say what they say; I get that.  But I cannot conceive of any House Rule, or any other legal authority, that would justify telling our elected Members of Congress, both empowered and burdened by their Constitutional authority to impeach, that they should STFU.
Alan Mark Grayson is an American politician who was the United States Representative for Florida’s 9th congressional district and a member of the Democratic Party. Wikipedia



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