[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[D. Immunities of Members and Aides]
[§ 15. Generally; Judicial Review]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 786-792]
CHAPTER 7
The Members
D. IMMUNITIES OF MEMBERS AND AIDES
Sec. 15. Generally; Judicial Review
The Constitution grants to Members of Congress two specific
immunities, one from arrest in certain instances and one from being
questioned in any other place for speech or debate.(15)
Viewed in one form, they constitute legal defenses, to be pleaded in
court, which act to prohibit or limit court actions or inquiries
directed against Members of Congress.(16) Since the
immunities act as procedural defenses, it has become the role of the
courts, both state and federal, to define and clarify their application
to ongoing cases and controversies. The courts have even stated on
occasion that the scope and application of the immunities is not for
Congress but for the judiciary to decide.(17)
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15. U.S. Const. art. I, Sec. 6, clause 1.
16. Smith v Crown Publishers, 14 F.R.D. 514 (1953).
17. See Gravel v U.S., 408 U.S. 606, 624 and note 15 (1972).
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The immunities exist not only to protect individual legislators,
but also to insure the independence and integrity of the legislative
branch in relation to the executive and judicial
branches.(18) The principle of separation of powers is so
essential to the American constitutional framework that the general
immunity of Congress, of its components, and of its actions from
interference by the other branches of the government, may be said to
exist independently of the express constitutional
immunities.(19)
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18. ``The immunities of the Speech or Debate Clause were not written in
the Constitution simply for the personal or private benefit of
Members of Congress, but to protect the integrity of the
legislative process by insuring the independence of individual
legislators.'' U.S. v Brewster, 408 U.S. 501, 507 (1972).
19. In Tenney v Brandhove, 341 U.S. 367 (1951), the Supreme Court
stated that the constitutional immunities for Members of
Congress were a reflection of political principles already
firmly established in the states. The Court concluded on the
basis of public policy and of common law legislative privilege
that state legislatures were protected from civil liability for
conducting investigations.
See Methodist Federation for Social Action v Eastland, 141
F Supp 729 (D.D.C. 1956), wherein the court relied upon
separation of powers in refusing to enjoin the printing of a
committee report. The court stated that ``nothing in the
Constitution authorizes anyone to prevent the President of the
United States from publishing any statement. This is equally
true whether the statement is correct or not, whether it is
defamatory or not, and whether it is or is not made after a
fair hearing. Similarly, nothing in the Constitution authorizes
anyone to prevent the Supreme Court from publishing any
statement. We think it equally clear that nothing authorizes
anyone to prevent Congress from publishing any statement.'' In
McGovern v Martz, 182 F Supp 343 (D.D.C. 1960), the court
stated that ``the immunity [of speech and debate] was believed
to be so fundamental that express provisions are found in the
Constitution, although scholars have proposed that the
privilege exists independently of the constitutional
declaration as a necessary principle in free government.''
See for a full discussion Reinstein and Silverglate,
Legislative Privilege and the Separation of Powers, 86 Harv. L.
Rev. 1113 (1973), in which the authors contend that the Speech
and Debate Clause must encompass all legitimate functions of a
legislature in a system which embraces the principle of
separation of powers. See also Comment, The Scope of Immunity
for Legislators and Their Employees, 70 Yale L. Jour. 366
(1967).
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[[Page 787]]
The specific immunities of Congressmen from arrest and for speech
and debate are easily confused with various uses of the term
``privilege''; that term generally refers to the immunity of
governmental officials and agencies for statements and actions
performed in the course of official duties. Not only the executive and
judicial branches of the federal government, but also the state
legislatures, have been recognized to hold some privilege from suit and
inquiry in relation to official acts and duties.(20)
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20. See Doe v McMillan, 412 U.S. 306 (1973) and Barr v Mateo, 360 U.S.
564 (1959) for the common law principle that public officials,
including Congressmen, judges, and administrative officials,
are immune from liability for damages for statements and
actions made in the course of their official duties.
For the privilege of state legislators, see Tenney v
Brandhove, 341 U.S. 367 (1951); Eslnger v Thomas, 340 F Supp
886 (D.S.C. 1972); Blondes v State, 294 A.2d 661 (Ct. App. Md.
1972).
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Under the procedure of the House, the term ``question of
privilege'' refers to matters raised on the floor, with a high
procedural precedence, and divided into matters of personal privilege
(affecting the rights, reputation, and conduct of individual Members in
their representative capacity) and into matters of the privilege of the
House (affecting the collective safety, dignity, and integrity of
legislative proceedings).(1) Alleged violations of the
specific constitutional immunities of Members comprise only a part of
the many
[[Page 788]]
issues which are raised as questions of privilege in the House.
Therefore, a distinction must be made between questions of privilege in
general and the specific immunities of Members of
Congress.(2)
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1. For definitions of questions of privilege and the manner of raising
them, see Rule IX, House Rules and Manual Sec. 661 (1973) and
Ch. 11, infra.
2. Questions of privilege must be further distinguished from
privileged questions, which are certain questions and motions
which have precedence in the order of business under House
rules (see Ch. 11, infra).
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When an incident arises in relation to the immunities of Members,
the incident may be brought before the House as a question of
privilege,(3) whereupon the House may investigate the
situation and may adopt a resolution stating the consensus of the House
on whether immunities have been violated, and ordering such actions as
the House or the individual Member(s) may take.(4)
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3. See Sec. Sec. 15.1, 15.3, infra.
4. See Sec. Sec. 15.1, 15.2, infra.
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Congress held extensive hearings in the 93d Congress on the subject
of interference by the judiciary with the legislative
process.(5)
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5. Constitutional Immunity of Members of Congress, hearings before the
Joint Committee on Congressional Operations, 93d Cong. 1st and
2d Sess. -------------------
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House Procedure When Member Subpenaed or Summoned
Sec. 15.1 The House determined that a summons issued to a Member to
appear and testify before a grand jury while the House is in
session, and not to depart from the court without leave, invades
the rights and privileges of the House, as based upon the
immunities from arrest and from being questioned for any speech or
debate in the House.
On Nov. 17, 1941, the House authorized by resolution (H. Res. 340)
Mr. Hamilton Fish, Jr., of New York, to appear and testify before a
grand jury of the United States Court for the District of Columbia at
such time as the House was not sitting in session: (6)
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6. H. Res. 340, from the Committee on the Judiciary, 87 Cong. Rec.
8933, 8934. 77th Cong. 1st Sess.
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Whereas Representative Hamilton Fish, a Member of this House
from the State of New York, has been summoned to appear as a
witness before a grand jury of the United States Court for the
District of Columbia to testify: Therefore be it
Resolved, That the said Hamilton Fish be, and he is hereby,
authorized to appear and testify before the said grand jury at such
time as the House is not sitting in session.
[[Page 789]]
The authorizing resolution was adopted pursuant to the report of a
committee that the service of a summons to a Member to appear and
testify before a grand jury while the House is in session does invade
the rights and privileges of the House of Representatives, as based on
article I, section 6 of the Constitution, providing immunities to
Members against arrest and against being questioned for any speech or
debate in either House, but that the House could in each case waive its
privileges, with or without conditions: (7)
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7. 87 Cong. Rec. 8933, 77th Cong. 1st Sess.
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Mr. [Hatton W.] Sumners of Texas: Mr. Speaker, on behalf of the
Committee on the Judiciary I submit a privileged report. . . .
The Committee on the Judiciary, having investigated and
considered the matter submitted to it by House Resolution 335,
submits the following report:
The resolution authorizing the committee to make this
investigation is as follows:
``Resolution
``Whereas Hamilton Fish, a Member of this House from the
State of New York, has been summoned to appear as a witness
before the grand jury of a United States court for the District
of Columbia to testify; and
``Whereas the service of such a process upon a Member of
this House during his attendance while the Congress is in
session might deprive the district which he represents of his
voice and vote; and
``Whereas article I, section 6 of the Constitution of the
United States provides:
`` `They (the Senators and Representatives) shall in all
cases, except treason, felony, and breach of the peace, be
privileged from arrest during their attendance at the session
of their respective Houses, and in going to and returning from
the same . . . and for any speech or debate in either House
they (the Senators and Representatives) shall not be questioned
in any other place'; and
``Whereas it appears by reason of the action taken by the
said grand jury that the rights and privileges of the House of
Representatives may be infringed: Therefore be it
``Resolved, That the Committee on the Judiciary of the
House of Representatives is authorized and directed to
investigate and consider whether the service of a subpena or
any other process by a court or a grand jury purporting to
command a Member of this House to appear and testify invades
the rights and privileges of the House of Representatives. The
committee shall report at any time on the matters herein
committed to it and that until the committee shall report
Representative Hamilton Fish shall refrain from responding to
the summons served upon him.''
The summons referred to is as follows:
``[Grand jury, District Court of the United States for the
District of Columbia. The United States v. John Doe. No. --.
Grand jury original, criminal docket. (Grand jury sitting in
room 312 at Municipal Building, Fourth and E Streets NW.,
Washington, D. C.)]
``The President of the United States to Hamilton Fish:
``You are hereby commanded to attend before the grand jury
of said
[[Page 790]]
court on Wednesday, the 12th day of November 1941, at 10:30
a.m., to testify on behalf of the United States, and not depart
the court without leave of the court or district attorney.
``Witness the honorable Chief Justice of said court the --
day of ----, 19--.
``Charles E. Stewart,
Clerk.
``By M.M. Cheston,
``Assistant Clerk.''
It is the judgment of your committee that the service of
this summons does invade the rights and privileges of the House
of Representatives.
We respectfully suggest, however, that in each case the
House of Representatives may waive its privileges, attaching
such conditions to its waiver as it may determine.
The language in the summons ``to testify on behalf of the
United States, and not depart the court without leave of the
court or district attorney'' removes any necessity to examine
the question as to whether a summons merely to appear and
testify is a violation of the privileges of the House of
Representatives. This particular summons commands that
Representative Hamilton Fish shall not depart the court without
leave of the court or district attorney,'' regardless of his
legislative duties as a Member of the House.
It is recognized that this privilege of the House of
Representatives referred to is a valuable privilege insuring
the opportunity of its Members against outside interference
with their attendance upon the discharge of their
constitutional duties.
At the same time it is appreciated that there is attached
to that privilege the very high duty and responsibility on the
part of the House of Representatives to see to it that the
privilege is so controlled in its exercise that it not
unnecessarily interferes with the discharge of the obligations
and responsibilities of the Members of the House as citizens to
give testimony before the inquisitorial agencies of government
as to facts within their possession.
After the resolution authorizing Mr. Fish to testify was adopted,
there ensued debate on the scope of the immunities of
Members.(8) The wording of the subpena in question was drawn
into issue, since the subpena stated that once the Member appeared to
testify he would not be permitted to depart from the court without
leave of the court or of the District Attorney. The House determined by
the adoption of the resolution that when the Congress is in session it
is the duty of the House to prevent a conflict between the duty of a
Member to represent his people at its session and his duty as a citizen
to give testimony before a court.(9)
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8. Id. at pp. 8934, 8949-58.
9. H. Rept. No. 1415, and the remarks of Mr. Emanuel Celler (N.Y.), 87
Cong. Rec. 8933, 8935, 8936, 77th Cong. 1st Sess., Nov. 17,
1941.
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Parliamentarian's Note: Summons and subpenas directed to officers,
employees, and Members of the House may also involve the doctrine of
separation of powers, as for example when calling for documents within
the possession and under the control of the House of Representatives or
for
[[Page 791]]
information obtained in an official capacity.(10)
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10. See Ch. 11, infra, for extensive discussion of questions of
privileges of the House as related to summons and subpenas.
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Sec. 15.2 The House authorized by resolution the Committee on the
Judiciary to file appearances and to provide for the defense of
certain Members and employees in legal actions related to their
performance of official duties.
On Aug. 1, 1953,(11) the House adopted a resolution
authorizing the court appearance of certain Members of the House, named
defendants in a private suit alleging damage to plaintiffs by the
performance of the defendants' official duties as members of the
Committee on Un-American Activities. The resolution also authorized the
Committee on the Judiciary to file appearances and to provide counsel
and to provide for the defense of those Members and employees. From the
contingent fund of the House, travel, subsistence, and legal aid
expenses were authorized in connection with that suit.(12)
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11. 99 Cong. Rec. 10949 10950, 83d Cong. 1st Sess.
12. For an occasion where a Member inserted into the Record a letter to
the Committee on Accounts, opposing a request that the House
pay an expense incurred by the Chairman of the House Committee
on Un-American Activities, in connection with two libel suits
brought against the chairman, see 88 Cong. Rec. A3035, 77th
Cong. 2d Sess., Aug. 6, 1942.
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Sec. 15.3 Where Members and employees of the House were subpenaed to
testify in a private civil suit alleging damage from acts committed
in the course of their official duties, the House referred the
matter to the Committee on the Judiciary to determine whether the
rights of the House were being invaded.
On Mar. 26, 1953,(13) the House was informed of the
subpena of members and employees of the Committee on Un-American
Activities in a civil suit contending that acts committed in the course
of an investigation by the committee had injured the plaintiffs. The
House by resolution referred the matter to the Committee on the
Judiciary to investigate whether the rights and privileges of the House
were being in
[[Page 792]]
vaded.(14) Mr. Charles A. Halleck, of Indiana, delivered
remarks in explanation of the resolution. Referring to the privileges
against arrest and against being questioned for speech or debate, he
said:
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13. 99 Cong. Rec. 2356-58, 83d Cong. 1st Sess.
For a more detailed analysis of House procedure when
Members, employees, or House papers are subpenaed, see Sec. 18,
infra (privilege from arrest) and Ch. 11, infra (privilege in
general).
14. H. Res. 190, read into the Record at 99 Cong. Rec. 2356, 83d Cong.
1st Sess., and adopted id. at p. 2358. See Sec. 18.4, infra,
for the text of the resolution.
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Through the years that language has been construed to mean
more than the speech or statement made here within the four
walls of the House of Representatives; it has been construed to
include the conduct of Members and their statements in
connection with their activities as Members of the House of
Representatives. As a result, it seems clear to me that under
the provisions of the Constitution itself the adoption of the
resolution which was presented is certainly in order.
Mr. John W. McCormack, of Massachusetts, also delivered remarks and
stated that ``for the House to take any other action would be fraught
with danger, for otherwise there is nothing to stop any number of suits
being filed against enough Members of the House, and in summoning them,
to impair the efficiency of the House of Representatives or the Senate
to act and function as legislative bodies.'' He also stated that the
fact that the Members and employees subpenaed were presently in
California in the performance of their official duties was immaterial,
as they were ``out there on official business, and committees of this
body are the arms of the House of Representatives.'' (15)
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15. The discussion above in the House on the subpena of Members was
cited in the case of Smith v Crown Publishers, 14 F.R.D. 514
(1953).
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