There is a fundamental tension between U.S. 1st Amendment freedoms of speech and press and the 2nd and 14th Amendment right to due process and trial by an impartial jury. In the U.S., the legal profession addresses this through self-regulation; for example, the ABA's model code for judges, rule 2.1, says:

A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

This sort of obligation is not limited to the judicial branch of government. For example, "any communication by DOJ personnel with a member of the media relating to a pending investigation or case must be approved in advance by the appropriate United States Attorney or Assistant Attorney General."

The guiding principle here is that once someone is formally accused of a crime (and before a verdict is rendered), the government as a whole has a duty to protect the accused right to a trial by an impartial jury. Impartial in this context refers to only deciding a case based on formal evidence presented in the courtroom.

My question is then how congress has acted to regulate its own members in this regard. It was motivated by media reports saying:

House Speaker Nancy Pelosi backed up California Rep. Maxine Waters on Monday, arguing that the Democratic congresswoman “absolutely” did not try to stoke violence by calling on Black Lives Matter protesters to “get more confrontational” if ex-Minnesota police officer Derek Chauvin is acquitted of killing George Floyd.

What mechanisms, if any, exist in congress to sanction members of congress who influence judicial processes through such public statements?

  • Rewrote this question to seek information regarding congressional rules and ethics that can be answered with facts and citations. Apr 21 '21 at 19:18
  • 7
    Well, it's clearer, but now it's just a rant and a blatant push question. You spend multiple paragraphs arguing your point and then tack on a question at the end which amounts to "given that Pelosi is evil, what can we do about it?"
    – divibisan
    Apr 21 '21 at 19:24
  • 1
    The body question: What mechanisms, if any, exist in congress to address the majority party's leadership's disrespect for the judicial process?, no longer matches the title question.
    – Rick Smith
    Apr 21 '21 at 19:38
  • 4
    As you all know, Politics Stack Exchange is a platform for objective questions about political processes. It is not a soap box for stating personal opinions. I therefore had to remove a lot of comments and a part of the question.
    – Philipp
    Apr 22 '21 at 11:24
  • Can you please explain how the first amendment contrasts with the second amendment and the 14th amendment? I can somewhat understand where you are coming from for the 14th amendment contrasting with the 1st, but I see no way that the 2nd amendment contrasts at all with the 1st amendment. Can you please explain how these amendments contradict. Apr 22 '21 at 13:57

The short answer is: Not explicitly as such. Many members of Congress are also lawyers, however, and thus bound by the ABA's ethical guidelines in addition to the following:

The House of Representatives' Ethics Manual has the following to say:

A Member, Delegate, Resident Commissioner, officer, or employee of the House shall conduct himself at all times in a manner that shall reflect creditably on the House.

It also includes by reference the Code of Ethics for Government Service, citing specifically:

Among other things, the Code stresses that any person in government service should:

  • Adhere to the highest moral principles; ...
  • Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and never be a party to their evasion.

One may infer from this that they are, in spirit if not in letter, expected to refrain from consciously attempting to interfere with the impartiality of a jury since 18 USC Sec. 1504 prohibits communicating with a juror (or jury) for the purpose of informing or influencing their verdict outside the proper channels of courtroom procedure - defining the crime known as Jury Tampering.

Proving the mens rea element of this crime is probably actually impossible without there being explicit evidence of conspiracy, but this is the difference between criminal law and ethical guidelines.

There are reasonable arguments to be made that politicians are routinely called upon to speak to issues that may be active in front of a court as part of their job as deliberators of matters of public interest, so this shouldn't be seen as a maxim that congresscritters should keep silent on all issues in front of all courts. Press coverage of trials and investigations are also frequently considered to be prejudicial and there are mechanisms such as jury sequestration to solve for this.

Indirect influence on jurors has consequences for the parties to the trial more than anywhere else. Trying to meaningfully control for it outside the courtroom is an impossible game of Whack-A-Mole.

Not the answer you're looking for? Browse other questions tagged .