Virginia Senator Faces Uphill Battle Against Censure Over Capitol Rally

Republican Amanda Chase claims her political punishment for speaking at a Trump rally just before the deadly Capitol insurrection violated her free speech rights, but a federal judge questioned whether his court is the right place for the dispute.

Virginia Sen. Amanda Chase, R-Chesterfield, whose refusal to wear a mask earned her a plexiglass enclosure, is pictured a week after she spoke at the Jan. 6 Trump rally in Washington. (Courthouse News photo/Brad Kutner)

RICHMOND, Va. (CN) — A federal judge seemed unlikely Thursday to side with a Virginia state senator in her challenge to a censure given to her after speaking at former President Donald Trump’s Jan. 6 election rally prior to the Capitol riot that left five people dead, including two police officers. 

Senator Amanda Chase, R-Chesterfield, has long been a firebrand even among her own party. A self-described “Donald Trump in heels,” the second-term lawmaker’s history of run-ins with police and other legislators and, most recently, her praising of those who stormed the Capitol as “patriots” after speaking at the rally, appeared to have finally caught up with her. 

During the state’s annual legislative session, just weeks after the rally, a bipartisan majority censured her for her participation at the Trump rally as well as numerous other self-inflicted wounds she has since turned into talking points in her controversial bid for governor. 

Not one to turn down a fight, Chase asked a federal judge in Richmond to throw out the censure, claiming the fall from the demerit, including reducing her seniority and giving ammo to her opponents on the campaign trail, violated her First and 14th Amendment rights. 

While U.S. District Judge Robert E. Payne examined the details of the censure Thursday, suggesting punishment for words said and rallies attended could raise First Amendment issues, he also wondered what he could do to the state Senate as a federal judge. 

“Why do you need me to define disorderly conduct? You could have gone to the Supreme Court of Virginia to find out,” the George H. W. Bush appointee asked Chase’s attorney, Virginia Beach lawyer Tim Anderson, himself a candidate for a House of Delegates seat this year, about the state’s grounds for when a censure can be issued.

Anderson argued that due to the nature of the constitutional claims, Payne’s court was better suited to answer the question. According to the lawyer, Chase’s right to due process was violated when the censure occurred because she was being punished for words she uttered, a violation of her free speech. 

But Payne noted Chase was given due process: she had notice of the complaint when it was entered into the Senate’s docket and when it went up for a vote she had the chance to respond. 

“The due process standard can be minimal,” Payne said.

Anderson pushed back, saying the Senate violated its rules when Chase’s colleagues issued the censure – while the bill went through a committee, it was amended on the floor, something he said should void the effort. 

The thought of overruling an otherwise approved, and wholly political, state legislative decision from the federal bench appeared to weigh on the judge. 

If Payne were to reject the case, Anderson lamented his low likelihood of success in state court. He said if Chase lacked a process to get a remedy in a federal court or the Senate, then “why have any rules at all?” 

“To allow the Senate to complete its business,” Payne responded. 

As for the broader concept of immunity for the Senate, Payne compared it to a police officer’s liability shield under qualified immunity.

“Something wrong has happened, but given the circumstances there’s no remedy,” the judge said.

State Solicitor General Toby Heytens defended the Virginia Senate, as well as Senate Clerk Susan Clarke Schaar, in Thursday’s hearing. He mostly stuck to arguments against Chase’s standing. The governing body and Scharr are both protected by either sovereign or legislative immunity, he argued, concepts that aim to steer legal battles towards the laws themselves and not those who enact them.

Instead, he argued Chase is welcome to challenge the impact of her censure when she goes up for office.

“Because censure is fundamentally a political proceeding conducted by a legislative body, plaintiff’s remedy for any alleged wrongs must be a political one rather than ‘a public fight in a court of law,”’ he wrote in a brief supporting the state’s motion to dismiss. “As the Supreme Court explained in a similar suit alleging legislative malfeasance, ‘[s]elf-discipline and the voters must be the ultimate reliance for discouraging or correcting [any] abuses.'”

Payne did not offer a timeline for his ruling.

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