Impugning a Nominee: Balancing Fundamental Parliamentary Principles

by Léo Fugazza

Late at night, on February 7th, 2017, United States Senator Elizabeth Warren was censored by the acting United States Senate Chair, in a ruling that was affirmed on appeal, for impugning United States Senator Jeff Sessions. He is the Trump nominee to the position of Attorney General of the United States, and if I may say so, very much of the unsavoury kind. His nomination has to be confirmed by the United States Senate, leading to prior debate. It is in this context that Warren read a 1986 letter by Coretta Scott King opposing Sessions nomination, then to the office of federal district court judge, that also requires the confirmation of the United States Senate. Senate Majority Leader Mitch McConnell objected with a call to order, as he considered that it “impugned the motives and conduct” of Sessions. It was sustained, leading to the removal of Warren’s speech privileges. After all, “she was warned. She was given an explanation. Nevertheless, she persisted.”

First, let us be clear that I agree that the letter shows that Jeff Sessions is “unworthy or unbecoming a Senator”. But that is an interpretation of the facts it reports. The question is more appropriately if reading said letter “impute[d to Sessions] any conduct or motive unworthy or unbecoming a Senator”. That is much less clear. To put us all in context, the relevant section of the Standing Rules of the Senate, 19(2), reads as follows:

No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

Let’s initially address the fact that reading a letter is “directly or indirectly”. Even without this qualifier, it would not be in itself a shield to the examination of an intervention. Indeed, otherwise one would simply have to read someone else’s imputing to circumvent the rule. It is the right course of action to consider the words read by someone to be, in application of parliamentary notions, theirs.

On the vif du sujet, now. The term “impute” (the verb “impugn” is also often used) has a very specific meaning in this particular context. Though often synonyms, “imputing” must be distinguished from “ascribing” or “pining on” (associating element B to person A). It is not simply “accusing” or “charging” (claiming that person A did reprehensible thing B). Nor is it exactly “insinuating” or “hinting” (by saying element A, implying element B). It requires some aspect of falsehood or of injustice.

The thing that is both true and legitimately someone’s cannot be imputed to that someone. Properly understood, then, I believe that Rule 19(2) prevents a Senator from claiming that another Senator had a conduct or a motive that is either false or unjustly ascribed to them (for example, if the conduct or motive, though true, is someone else’s), if of course that conduct or motive is unworthy or unbecoming a Senator (for example, you can impute that someone gave children candies if it is, in fact, false and they never did, but that is hardly reprehensible and worthy of censorship). Nothing more, nothing less.

This is further confirmed by looking at the fundamental principles of deliberative assemblies, such as the United States Senate. It is recognised that members of a deliberative assembly have to be, if not courteous, at least respectful of each other. The decorum of the assembly requires it. Rule 19(2) is merely a codified example of the respect principle.

Respect involves adherence to three basic notions: truth, relevance, and the right to make full defence. What is disrespectful is therefore what is negative (a compliment cannot be disrespectful) and either untrue, irrelevant or impossible to defend against. The first is rather simple: though subject to different interpretations, the facts are the facts are the facts. Baseless accusations are therefore prohibited. The second is quite instinctive: it is never respectful to bring up something negative that is not pertinent, simply gratuitously. The third is a bit more subtle: indeed it not disrespectful to force someone to face something they did that is indefensible, as a matter of undeniability, while it is to invoke an immaterial notion, that can never be proven either way. Invoking the motives of someone, i.e., why they did something, is therefore prohibited, as they can never be known by someone else.

It is therefore proper under Rule 19(2) and the principle of respect to say—if it is relevant at the time, for example during a debate on how to best protect voting rights—that “Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge” (observation and interpretation: Sessions used his power and it chilled the free exercise of the vote), but improper to say that “Mr. Sessions has used the awesome powers of his office in a shabby attempt to intimidate and frighten elderly black voters” (imputation: Sessions used his power with the intent to chill the free exercise of the vote). One is of the realm of general debate, while the other is by nature unparliamentary.

We can see, rapidly, why such a nuance can be difficult to ascertain. The two above quotes from Scott King’s letter are quite similar. Yet, that nuance is fundamental to balancing the right of members to be respected by the assembly and the other members of it, and the freedom of speech necessary for the assembly to go to the bottom of the issues it tackles. In the ordinary course of debate, which should not be personalised, I would therefore concur that Warren’s censorship was justified. But her reading Scott King’s letter was not in the ordinary course of debate.

The balancing of various competing interests is a difficult exercise. It is highly contextual. Here it is important to remember that Warren’s reading was made during a debate on Sessions’s confirmation, namely a debate on his very character, aptitudes, experience, vision, and yes, conduct and motives. I am of the opinion that this changes the usual balance, allowing for much more “disrespectful” interventions. Relevance acts here as a form of panacea.

Indeed, the question of a candidate’s being, in all of its aspects, becomes the focus of the assembly. It is no longer improper to put the candidate to an immaterial notion, that can never be proven either way, because it cannot personalise the debate: it already is a debate on the person. As well, truth becomes in itself intangible. It is therefore acceptable to discuss and argue things that cannot conclusively proven, because a debate on a candidate is not a debate of facts. To take a simple example, it would be disrespectful to call another member of an assembly dumb during the course of ordinary debate. It is most likely irrelevant, possibly untrue, and quite unfair to ask of the person to defend from such a claim. But when that member of the assembly is a candidate, then the other members should be free to express their opinion that the candidate is dumb. Not permitting it would stifle the complete debate on the candidacy that is required. It is up to the supporters of the candidate to advance the adverse proposition that their candidate is smart to oppose the proposition that they are dumb. It is not up to the rules to prohibit either camp from speaking their mind.

With this in mind, I must recognise at the very least an implicit exception to Rule 19(2) when the Senator in question is the main object of the debate, for example when the question is on confirming or not their nomination to a position. This is quite a practical consideration, finding support in equity. Indeed, if Senators candidates could not be impugned because of Rule 19(2), but that other non-Senators candidates could be, it would create a fundamentally unjust process. A level playing field is required for parliamentary questions pertaining to people personally.

As such, Warren’s reading of Scott King’s letter was entirely proper: because parts of it were not, in any circumstance, imputing, and because other parts of it were of such relevance as to allow for them to go beyond what would usually be acceptable. McConnell’s call to order was improper, as such, and should not have led to Warren’s censorship.

This incident, the “She was warned. She was given an explanation. Nevertheless, she persisted.” incident as I will now call it, proved a useful background to discuss some of the underlying principles of deliberative assemblies. I can only hope that the reflection proved interesting. I should add that it also provided me with the opportunity to denounce Jeff Sessions as a jurist and as a politician, but that in retrospect I have regretfully not forcefully enough made this point. So in parting I encourage you to research the man and his legacy. I am certain that it will speak of itself against his confirmation as Attorney General of the United States of America.