[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 6.  Officers, Officials, and Employees]
[C. House Officers]
[Â§ 23. In General; Immunities]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 619-638]
 
                               CHAPTER 6
 
                   Officers, Officials, and Employees
 
                    D. AS PARTY DEFENDANT OR WITNESS
 
Sec. 23. In General; Immunities


    This division focuses on the liability to suit or to judicial 
process of House officials or employees for acts committed by them in 
the performance of their duties for the House. Immunity arising under 
the Speech or Debate Clause of the U.S. Constitution (art. I, Sec. 6) 
is discussed. Court opinions dealing with aides of individual 
legislators(1) and committee employees(2) are 
also taken up here.(3)
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 1. See Gravel v United States, 408 U.S. 606 (1972), for example, which 
        is discussed at Sec. 23.13, infra. See also Ch. 7, infra, for a 
        discussion of litigation involving Members generally.
 2. Dombrowski v Eastland, 387 U.S. 82 (1967), Stamler v Willis, 415 
        F2d 1365 (7th Cir. 1969); cert. den. 399 U.S. 929 (1970), and 
        Doe v McMillan, 412 U.S. 306 (1973), which are discussed at 
        Sec. Sec. 23.10, infra, 23.12, infra, and 23.14, infra, 
        respectively.
 3. See Ch. 11, which includes a discussion of the privilege of the 
        House as related to subpenas served on Members or on House 
        officers or employees.
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    In the exercise of official duties, an officer of the House may 
become involved in litigation by receiving a summons to appear as a 
party defendant,(4) in which case he informs the 
Speaker,(5) and may request legal representation by the 
United States Attorney for the district in which the action is 
brought.(6) Or he may receive a

[[Page 620]]

subpena to appear and testify as a witness (subpena ad testificandum) 
or to produce records (subpena duces tecum), in which case he informs 
the Speaker who lays the matter before the House,(7) which 
may grant leave for the withdrawal of papers from its 
files.(8)
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 4. See the reports of the Joint Committee on Congressional Operations 
        Identifying Court Proceedings and Actions of Vital Interest to 
        the Congress, for the record of legal actions involving House 
        officers, beginning with the first cumulative report dated Oct. 
        20, 1971.
 5. See Sec. Sec. 23.1 and 23.2 infra, for precedents relating to 
        receiving a summons and notifying the Speaker.
 6. See USC Sec. 118.
            See Sec. Sec. 93.3, infra, and 23.5, infra, for examples of 
        requests for representation from the Clerk and the Sergeant at 
        Arms, respectively.
            Compare Sec. 23.6, infra, for an instance in which the 
        House by resolution authorized the Speaker to appoint and fix 
        the compensation of special counsel to represent officers, 
        Members, and the House in Powell v McCormack.
 7. See Sec. Sec. 23.7-23.9, infra, for precedents relating to 
        receiving subpenas and notifying the Speaker.
 8. Rule XXXVII, House Rules and Manual Sec. 933 (1973).
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    At one time, immunity from suit under the Speech or Debate Clause 
was considered to be broader for Members of Congress than for 
nonmembers who acted on their behalf, including officers of legislative 
bodies, staff personnel of committees, and aides to individual Members. 
For example, in Kilbourn v Thompson, 103 U.S. 168 (1881),(9) 
the U.S. Supreme Court held that although damages for false 
imprisonment could not be recovered in that case against Members of the 
House, they could be recovered against the Sergeant at Arms, who 
executed an arrest warrant pursuant to a resolution found to be an 
unconstitutional exercise of judicial authority by a legislative body. 
Likewise in Dombrowski v Eastland, 387 U.S. 82 (1967)(10) a 
criminal suit was dismissed as to a Senate subcommittee chairman, but 
remanded for a finding of facts on alleged illegal activities by the 
subcommittee counsel.
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 9. See 2 Hinds' Precedents Sec. 1611, for a discussion of Kilbourn v 
        Thompson.
10. See Sec. 23.10, infra.
            Collateral reference: Dombrowski v Eastland Id--A Political 
        Compromise and Its Impact. 22 Rutgers Law Review 1.27 (Fall 
        1967).
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    This double standard was applied in Powell v McCormack, 395 U.S. 
606 (1969),(11) in which the Court dismissed a suit for 
declaratory, injunctive, and mandatory relief as to Members, but held 
that the Clerk, Sergeant at Arms, and Doorkeeper of the House could be 
held liable for refusal to perform services for a Member-elect who had 
been excluded from the office by an unconstitutional resolution. In 
Stamler v Willis, 415 F2d 1365 (7th Cir. 1969), cert. den. 399 U.S. 929 
(1970),(12) a suit against members of a House committee, a 
lower federal court on its own motion granted plaintiffs leave to amend 
their complaint to include committee personnel to

[[Page 621]]

ensure that adequate relief could be obtained. At the same time, the 
Court dismissed the action as to the Members on the ground that their 
activities were protected by the Speech or Debate Clause.
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11. See Sec. 23.11, infra.
12. See Sec. 23.12, infra.
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    The practice of recognizing greater immunity for Members than their 
agents was modified in Gravel v United States, 408 U.S. 606 
(1972),(13) a criminal action which arose when an aide to 
the Senator who publicized the contents of the Pentagon Papers refused 
to respond to a subpena to appear before a grand jury and answer 
questions relating to assistance given by him to the Senator. 
Intervening to quash the subpena, the Senator contended that requiring 
the aide to testify about such assistance would violate the Senator's 
privilege under the Speech or Debate Clause. Adopting the position of 
the Senate, which filed a friend of the court brief and argued the 
cause, the Supreme Court held that the legislative process is such as 
to make the work of an aide so critical that he must be treated as a 
Member's alter ego to avoid frustration of the central purpose of the 
constitutional immunity. The Court ruled that ``the Speech or Debate 
Clause applies not only to a Member, but also to his aides insofar as 
the conduct of the latter would be protected if performed by the Member 
himself.'' One year later the Court extended the Speech or Debate 
Clause immunity, granted to aides of individual Members in Gravel, to 
committee employees. See Doe v McMillan, 412 U.S. 306 
(1973).(14)
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13. See Sec. 23.13. infra.
14. See Sec. 23.14, infra.
            Collateral reference: Constitution of the United States of 
        America: Analysis and Interpretation, ``Privilege of Speech or 
        Debate, Congressional Employees,'' pp. 120-22, S. Doc. No. 92-
        82, 92d Cong. 2d 
        Sess.                          -------------------
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Receipt of Summons

Sec. 23.1 When the Clerk receives a summons to appear as a party 
    defendant in a court action, he informs the Speaker who lays the 
    matter before the House.(15)
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15. See, for example, 113 Cong. Rec. 6035, 6036, 90th Cong. 1st Sess., 
        Mar. 9, 1967 (Clerk's receipt of summons in Powell v 
        McCormack); 113 Cong. Rec. 29821, 90th Cong. 1st Sess., Oct. 
        24, 1967 (receipt of summons in Wilkinson v United States and 
        Clerk of the House of Representatives); 117 Cong. Rec. 1503, 
        1504, 92d Cong. 1st Sess., Feb. 3, 1971 (receipt of summons in 
        Eckert v House of Representatives).
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    For example, on Oct. 24, 1967,(16) the Speaker, John W.

[[Page 622]]

McCormack, of Massachusetts, laid before the House the following 
communication from the Clerk:
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16. 113 Cong. Rec. 29821, 90th Cong. 1st Sess.
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                                                 October 19, 1967.
        Re civil action file No. 2643-1967.
        The Honorable the Speaker, House of Representatives.

            Dear Sir: By this letter I am transmitting to you a summons 
        in a civil action directed against the United States of America 
        and the Clerk of the House of Representatives of the Congress 
        of the United States.(17) I was served with this 
        petition on the 17th of October by a Deputy United States 
        Marshal. In addition to notifying you of this action in 
        accordance with 2 U.S. Code 118 a copy of this summons is being 
        forwarded to the U.S. District Attorney for the District of 
        Columbia. In accordance with the provisions of this statute I 
        am requesting the U.S. District Attorney to enter an 
        appearance, file an answer and defend this civil action. 
        Additionally I am notifying the Attorney General of the United 
        States that this suit has been filed against me in my official 
        capacity as Clerk of the House of Representatives of the 
        Congress of the United States. Copies of these letters and 
        notification are attached hereto.
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17. The suit referred to in the letter, Wilkinson v United States of 
        America et al., Civil Action File No. 26431967, sought 
        statutory death benefits for the daughter of a deceased House 
        employee.
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            This summons is attached and the matter is presented for 
        such action as the House in its wisdom may see fit to take.
            Respectfully submitted.
                                              W. Pat Jennings,
                                                          Clerk,
                                    U.S. House of Representatives.

        The Speaker: Without objection, the summons and pleadings will 
    be printed in the Record.
        There was no objection.

Sec. 23.2 When the Sergeant at Arms receives a summons to appear as a 
    party defendant in a court action, he informs the Speaker who lays 
    the matter before the House.

    For example, on June 6, 1963,(18) the Speaker, John W. 
McCormack, of Massachusetts, laid before the House the following 
communication from the Sergeant at Arms:
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18. 109 Cong. Rec. 10359, 88th Cong. 1st Sess.
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                                                     June 6, 1963.
        Hon. John W. McCormack,
        Speaker, U.S. House of Representatives, Washington, D.C.

            Dear Mr. Speaker: I have in my official capacity as 
        Sergeant at Arms of the House of Representatives been served in 
        a civil action in the U.S. District Court for the District of 
        Columbia (civil action file No. 137163).(19) Having 
        in mind that the privileges of the House of Representatives may 
        be involved, I am bringing this matter to your attention.
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19. Parliamentarian's Note: The civil action referred to above alleged 
        the failure of the Sergeant at Arms to withhold the salary of a 
        Member (Adam C. Powell [N.Y.]) for periods of alleged absence 
        from the House. It was dismissed with prejudice.
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            I did, on June 5, 1963, address  letter to the Honorable 
        David C. Acheson, U. S. attorney for the District

[[Page 623]]

        of Columbia, requesting assignment of counsel to represent the 
        Sergeant at Arms as provided for in 2 United States Code 118. A 
        copy of that letter is attached hereto.
              Sincerely,
                                          Zeake W. Johnson, Jr.,
                                                 Sergeant at Arms.

Legal Representation

Sec. 23.3 When named as a party defendant in a legal action involving 
    performance of official duties, the Clerk has requested 
    representation from the United States Attorney for the district in 
    which the action was brought.

    A statute(20) provides that any officer of either House 
may request legal representation in any action involving the discharge 
of official duties. A representative illustration of one of these 
requests, a letter to the United States Attorney for the district in 
which the action was brought, was laid before the House by the Speaker, 
John W. McCormack, of Massachusetts, on Oct. 24, 1967:(1)
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20. 2 USC Sec. 118.
 1. 113 Cong. Rec. 29821, 90th Cong. 1st Sess.

                                                 October 19, 1967.
        Re civil action file No. 2643-1967.
        Hon. David G. Bress,
        U.S. Attorney for the District of Columbia,
        U.S. Courthouse, Washington, D.C.
            Dear Mr. Bress: I am sending you a copy of a summons in a 
        civil action that was served on me in my official capacity as 
        Clerk of the House of Representatives of the Congress of the 
        United States. This service was accomplished on October 17 by a 
        Deputy U.S. Marshal.

            In accordance with 2 U.S. Code 118 I respectfully request 
        that you enter an appearance, file an answer or take such other 
        action as you may deem necessary in defense of this suit 
        against the United States of America and the Clerk of the U.S. 
        House of Representatives of the Congress of the United States.
            This office will assist you in any way possible in 
        preparation of your answer and defense. If you have any 
        questions regarding this matter or if you need additional 
        information please contact my legal advisor, Mr. Bill 
        Hollowell.
            Respectfully submitted.

                                              W. Pat Jennings,
                                                          Clerk,
                                    U.S. House of Representatives.

Sec. 23.4 In addition to informing the United States Attorney for the 
    district in which the action was brought, an officer named as a 
    party defendant sometimes notifies the Attorney General, although 
    this latter notification is not required by statute.

    For example, on Oct. 24, 1967,(2) the Speaker, John W. 
McCormack, of Massachusetts, laid before the House the following letter 
from the Clerk:
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 2. 113 Cong. Rec. 29821, 90th Cong. 1st Sess.


[[Page 624]]


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                                                 October 19, 1967.  
        Re civil action file No. 2643-1967.
        Hon. Ramsey Clark,
        Attorney General of the United States,
        Department of Justice, Washington, D.C.

            Dear Mr. Clark: I am sending you a copy of a summons in a 
        civil action filed against the United States of America and the 
        Clerk of the House of Representatives of the Congress of the 
        United States. I was served with this summons on October 17 by 
        a Deputy U.S. Marshal.
            In accordance with 2 U.S. Code 118 I have sent a copy of 
        this action to the U.S. District Attorney for the District of 
        Columbia requesting that he enter an appearance and defend this 
        action. Realizing that the defense of this action will be 
        conducted under the supervision and direction of the Attorney 
        General I am also sending you a copy of the summons as well as 
        a copy of the letter that I am forwarding to the U.S. District 
        Attorney.
            Respectfully submitted.
                                              W. Pat Jennings,
                                                          Clerk,
                                    U.S. House of Representatives.

Sec. 23.5 The Sergeant at Arms has requested representation of the 
    United States Attorney for the district where the action was 
    brought in a lawsuit involving his official duties.

    For example, on June 6, 1963,(3) the Speaker, John W. 
McCormack, of Massachusetts, laid before the House the following 
communication requesting representation from the United States Attorney 
pursuant to 2 USC Sec. 118:
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 3. 109 Cong. Rec. 10359, 88th Cong. 1st Sess.

                                                     June 6, 1963.
        Hon. David C. Acheson,
        U.S. Attorney for the District of Columbia, U.S. Courthouse, 
        Washington, D.C.

            Dear Mr. Acheson: I respectfully request that you assign 
        counsel to represent the Sergeant at Arms of the House of 
        Representatives, Zeake W. Johnson, Jr., in a civil action in 
        the U.S. District Court for the District of Columbia (civil 
        action file No. 1371-63) pursuant to 2 United States Code 118. 
        I was served in my official capacity, on June 4, 1963, with 
        instructions to answer the complaint within 60 days after 
        service.
            I am enclosing herewith a copy of the summons which was 
        served on me. I may add that I will be available at any time to 
        confer with any counsel that you may assign to this case.
              Very truly yours,

                                          Zeake W. Johnson, Jr.,
                                                 Sergeant at Arms.

Sec. 23.6 In an action where both Members and officers were named as 
    defendants, the House authorized the Speaker to appoint special 
    counsel to represent both groups.

    Although House officers by statute(4) may request 
representation by the United States Attorney in any action involving 
the discharge of their official duties, they did

[[Page 625]]

not exercise this authority in Powell v McCormack, 395 U.S. 606 (1967), 
a suit where both officers and Members were named as defendants. 
Instead, they were represented by special counsel appointed by the 
Speaker and paid out of the contingent fund.(5~)
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 4. 2 USC Sec. 118.
            See Sec. 23.3, supra, for a discussion of the procedure for 
        requesting representation by the United States Attorney.
 5. See 2 Hinds' Precedents Sec. 1611, n. 1, for references to other 
        instances in which the House by resolution authorized an 
        officer (the Sergeant at Arms) to retain counsel in a legal 
        action (Kilbourn v Thompson, 103 U.S. 168 [1881]). These 
        resolutions were passed prior to passage of 2 USC Sec. 118.
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    Thus, on Mar. 9, 1967, in the 90th Congress,(6~) Mr. 
Hale Boggs, of Louisiana, offered and the House adopted House 
Resolution 376. The proceedings were as follows:
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 6. See 113 Cong. Rec. 6040 et seq., 90th Cong. 1st Sess.
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        Mr. Boggs: Mr. Speaker, I rise to a question of the privilege 
    of the House, and offer a resolution (H. Res. 376) which I send to 
    the Clerk's desk.
        The Speaker [John W. McCormack, of Massachusetts]: The 
    gentleman submits a resolution relating to the privilege of the 
    House, which the Clerk will report.
        The Clerk read as follows:

                                H. Res. 376

            Whereas Adam Clayton Powell, Jr., et al., on March 8, 1967, 
        filed a suit in the United States District Court for the 
        District of Columbia, naming as defendants certain Members and 
        officers of the House of Representatives, and contesting 
        certain actions of the House of Representatives; and
            Whereas this suit raises questions concerning the rights 
        and privileges of the House of Representatives, the separation 
        of powers between the legislative and judicial branches of the 
        Government and fundamental constitutional issues: Now, 
        therefore, be it
            Resolved, That the Speaker of the House of Representatives 
        of the United States is hereby authorized to appoint and fix 
        the compensation of such special counsel as he may deem 
        necessary to represent the House of Representatives, its 
        Members and officers named as defendants, in the suit filed by 
        Adam Clayton Powell, Jr., et al. in the United States District 
        Court for the District of Columbia, as well as in any similar 
        or related proceeding brought in any court of the United 
        States; and be it further
            Resolved, That any expenses incurred pursuant to these 
        resolutions, including the compensation of such special counsel 
        and any costs incurred thereby, shall be paid from the 
        contingent fund of the House on vouchers authorized and signed 
        by the Speaker of the House of Representatives and approved by 
        the Committee on House Administration; and be it further
            Resolved, That the Clerk of the House of Representatives 
        transmit a copy of these resolutions to the aforementioned 
        court and to any other court in which related legal proceedings 
        may be brought.

    The resolution was agreed to. And on Feb. 17, 1969, in the 91st 
Congress(7) it was continued in ef

[[Page 626]]

fect when a Member, Carl Albert, of Oklahoma, offered and the House-
adopted the resolution (H. Res. 243) below.:
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 7. 116 Cong. Rec. 3359, 91st Cong. 1st Sess.
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        Mr. Albert: Mr. Speaker, I offer a privileged resolution (H. 
    Res. 243) and ask for its immediate consideration.
        The Clerk read the resolution as follows:

                                H. Res. 243

            Resolved, That the provisions of House Resolution 376, 
        Ninetieth Congress, are hereby continued in effect during the 
        Ninety-first Congress; and be it further
            Resolved, That the Clerk of the House of Representatives 
        transmit a copy of this resolution to the Supreme Court of the 
        United States and to any other court in which related legal 
        proceedings may be pending or brought.

Receipt of Subpena

Sec. 23.7 When the Sergeant at Arms receives a subpena, he informs the 
    Speaker who lays the matter before the House.

    In his capacity as custodian of Members' bank accounts, payroll and 
other information pertaining to Members,(8) the Sergeant at 
Arms sometimes receives subpenas to appear before or present documents 
to grand juries and courts. Upon receipt of a subpena, he sends a copy 
of it with a covering letter to the Speaker who lays them before the 
House,(9) which then considers whether a response to the 
subpena should be authorized.(10)
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 8. See summary of Sec. 19, supra, for discussion of duties of the 
        Sergeant at Arms.
 9. See for example, 99 Cong. Rec. 5523, 5524, 83d Cong. 1st Sess., May 
        25, 1953 (notice of a subpena duces tecum to appear before a 
        grand jury empaneled to investigate possible violations of 18 
        USC Sec. 1001 by Ernest King Bramblett); 100 Cong Rec. 1162, 
        83d Cong. 2d Sess., Feb. 2, 1954 (notice of a subpena ad 
        testificandum to appear as a witness in U.S. v Ernest King 
        Bramblett [No. 971-53, criminal docket]); 106 Cong. Rec. 4393, 
        86th Cong. 2d Sess., Mar. 3, 1960 (notice of a subpena ad 
        testificandum to appear as a witness in U.S. v Adam Clayton 
        Powell [No. 35-208]); 111 Cong. Rec. 5284, 5285, 89th Cong. 1st 
        Sess., Mar. 18, 1965 (notice of a subpena duces tecum to appear 
        before a grand jury in People of the State of New York v Adam 
        Clayton Powell); 111 Cong. Rec. 16529, 89th Cong. 1st Sess., 
        July 13, 1965 (notice of a subpena ad testificandum to appear 
        as a witness in U.S. v Ernestine Washington, et al. [crim. 
        cases U.S. 5379-65 and U.S. 5380-65]); 113 Cong. Rec. 17561, 
        17562, 90th Cong. 1st Sess., June 27, 1967 (notice of a subpena 
        duces tecum to appear before a grand jury in U.S. v In re 
        Possible Violations of 18 USC Sections 201, 287, 371, 641, and 
        1001 [concerning Adam Clayton Powell]).
10. See Rule XXXVII, House Rules and Manual Sec. 933 (1973), which 
        provides that no document presented to the House shall be 
        withdrawn without its leave.

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[[Page 627]]

    For example, on July 1.3, 1965,(11) the Speaker, John W. 
McCormack, of Massachusetts, laid before the House the following letter 
from the Sergeant at Arms, Zeake W. Johnson, Jr., who had received a 
subpena ad testificandum to appear as a witness in United States v 
Ernestine Washington, et al.:
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11. 111 Cong. Rec. 16529, 89th Cong. 1st Sess.
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                                                    July 13, 1965.

            Dear Mr. Speaker: I have received a subpena from the 
        District of Columbia court of general sessions, criminal 
        division, directing me as Sergeant at Arms of the House of 
        Representatives to appear as witness for the defendants.
            The rules and practice of the House of Representatives 
        indicate that the Sergeant at Arms may not, either voluntarily 
        or in obedience to a subpena appear without the consent of the 
        House being first obtained.

            The subpena in question is herewith attached and the matter 
        is presented for such action as the House in its wisdom may see 
        fit to take.
            Sincerely,

                                          Zeake W. Johnson, Jr.,
                                                 Sergeant at Arms.

    Mr. Hale Boggs, of Louisiana, offered and the House passed House 
Resolution 456, authorizing the Sergeant at Arms to appear as a 
Witness(12)
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12. Id.
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    Similarly, on June 27, 1967,(13), the Speaker, John W. 
McCormack, of Massachusetts, laid before the House the following letter 
from the Sergeant at Arms, Zeake W. Johnson, Jr., who had received a 
subpena duces tecum to appear and produce records before a grand jury 
empaneled to investigate alleged illegal activities by Adam Clayton 
Powell in United States v In re Possible Violations of 18 USC Sections 
201, 287, 371, 611, and 1001:
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13. 113 Cong. Rec. 17561, 90th Cong. 1st Sess.
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            Dear Mr. Speaker: From the United States District Court for 
        the District of Columbia, I have received a subpena directing 
        the Sergeant at Arms or authorized representative to appear 
        before the said Court and to bring with him certain records 
        under his jurisdiction.
            The rules and practice of the House of Representatives 
        indicate that the Sergeant at Arms may not, either voluntarily 
        or in obedience to a subpena duces tecum, produce such papers 
        without the consent of the House being first obtained. It is 
        further indicated that he may not supply copies of certain of 
        the documents and papers requested without such consent.
            The subpena in question is therewith attached and the 
        matter is presented for such action as the House in its wisdom 
        sees fit to take.
              Sincerely,

                                          Zeake W. Johnson, Jr.,
                                                Sergearnt at Arms.

    Following presentation of this letter, Mr. Carl Albert, of Okla

[[Page 628]]

homa, offered and the House passed House Resolution 674, authorizing 
the Sergeant at Arms to appear before the grand jury, but not to take 
with him original documentary evidence, and to supply certified copies 
of evidence deemed material and relevant by the court.(14)
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14. 113 Cong. Rec. 17561, 90th Cong. 1st Sess., June 27, 1967.
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Sec. 23.8 When the Clerk receives a subpena, he informs the Speaker who 
    lays the matter before the House.

    As custodian of House files, the Clerk sometimes receives subpenas 
to appear or present documents before courts and grand juries. He sends 
a copy: of the subpena with a covering letter to the Speaker who lays 
the matter before the House,(15) which then con

[[Page 629]]

siders whether it should permit the Clerk to answer the 
subpena.(16)
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15. See for example, 76 Cong. Rec. 5581, 72d Cong. 2d Sess., Mar. 3, 
        1933 (notice of receipt of subpena duces tecum referred to 
        Judiciary Committee); 94 Cong. Rec. 2266, 80th Cong. 2d Sess., 
        Mar. 5, 1948 (notice of receipt of subpena duces tecum in U.S. 
        v Marshall); 94 Cong. Rec. 5066, 5067, 80th Cong. 2d Sess., 
        Apr. 29, 1948 (notice of receipt of subpena duces tecum in 
        contempt cases; see also p. 5161, Apr. 30, 1948, for memorandum 
        on Clerk's immunity in responding to a subpena duces tecum); 94 
        Cong. Rec. 5432, 80th Cong. 2d Sess., May 6, 1948 (notice of 
        receipt of a subpena duces tecum in U.S. v Albert Maltz); 96 
        Cong. Rec. 565, 81st Cong. 2d Sess., Jan. 18, 1950 (notice of 
        receipt of a subpena duces tecum in U.S. v Christoffel); 96 
        Cong. Rec. 1695, 81st Cong. 2d Sess., Feb. 8, 1950 (notice of 
        receipt of subpena duces tecum for minutes of an executive 
        session of a committee in U.S. v Christoffel; see also p. 1765, 
        Feb. 13, 1950, for resolution adopted by the Judiciary 
        Committee in response to this subpena duces tecum); 97 Cong. 
        Rec. 3403, 3404, 82d Cong. 1st Sess., Apr. 6, 1951 (notices of 
        receipt of subpenas duces tecum in U.S. v Patterson and U.S. v 
        Kamp); 97 Cong. Rec. 3800, Apr. 12, 1951 (notice of receipt of 
        subpena duces tecum in U.S. v Brehm); 104 Cong. Rec. 7262, 
        7263, 85th Cong. 2d Sess., Apr. 24, 1958 (notice of receipt of 
        subpena duces tecum from a superior court in North Carolina); 
        104 Cong. Rec. 7636, 85th Cong. 2d Sess., Apr. 29, 1958 (notice 
        of receipt of subpena duces tecum to appear before a grand jury 
        investigating alleged violations of 26 USC Sec. 145(b) by 
        Representative Adam C. Powell [N. Y.]); 113 Cong. Rec. 29374, 
        90th Cong. 1st Sess., Oct. 19, 1967 (notice of receipt of a 
        subpena ad testificandum to appear before a grand jury 
        investigating alleged violations of 18 USC Sec. Sec. 101, 201, 
        287, 371, 641, and 1505 by Representative-elect Adam Clayton 
        Powell [N.Y.]); 115 Cong. Rec. 80, 81, 91st Cong. 1st Sess., 
        Oct. 29, 1969 (notice of receipt of a subpena duces tecum to 
        produce records required by the Corrupt Practices Act before a 
        grand jury investigating activities of the Seafarer's Political 
        Activities Donations Committee); 117 Cong. Rec. 2744, 92d Cong. 
        1st Sess., Feb. 17, 1971 (notice of receipt of a subpena duces 
        tecum to appear before a general court martial and produce 
        certain executive session testimony taken by a subcommittee in 
        U.S. v Lt. William L. Calley, Jr.).
16. See Rule XXXVII, House Rules and Manual Sec. 933 (1973) which gives 
        the House authority to grant leave to remove paper from House 
        files. Jefferson's Manual, House Rules and Manual Sec. 352 
        (1973) provides that the Clerk should allow no documents to be 
        taken from his custody.
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    For example, on Jan. 16, 1968,(17) the Clerk, W. Pat 
Jennings, who had received a subpena to appear and present original 
House records before a federal grand jury empaneled to investigate 
alleged violations of law by Member-elect Adam Clayton Powell, notified 
the Speaker, John W. McCormack, of Massachusetts, who laid before the 
House the following letter:
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17. 114 Cong. Rec. 80, 81, 90th Cong. 2d Sess.
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                                                  January 9, 1968.
        The Honorable the Speaker,
        House of Representatives.

            Dear Sir: On this date I, W. Pat Jennings, Clerk of the 
        United States House of Representatives and the Honorable Zeake 
        W. Johnson, Jr., Sergeant at Arms of the United States House of 
        Representatives were served with subpenas issued under the 
        authority of the United States District Court for the District 
        of Columbia. These subpenas direct that Mr. Johnson and myself, 
        as officers of the United States House of Representatives 
        produce documents, papers and records belonging to the United 
        States House of Representatives. The subpenas were issued in 
        connection with a Grand Jury investigation of possible 
        violations of Title 18 U.S. Code, Sections 201, 287, 371, 641, 
        1001 and 1505. It is noted that these subpenas command our 
        appearance and production of the House records mentioned 
        therein on Thursday the 18th of January 1968 at 10:00 a.m. The 
        subpenas themselves outline the House records that we were 
        requested to produce.
            The rules and practices of the House of Representatives 
        indicate that no official of the House may, either voluntarily 
        or in obedience to a subpena duces tecum, produce such papers 
        without the consent of the House being first obtained.
            The subpenas in question are herewith attached, and this 
        matter is presented for such action as the House may deem 
        appropriate.
             Sincerely yours,

                                                W. Pat Jennings,
                             Clerk, U.S. House of Representatives.

    Following presentation of this letter, Mr. Hale Boggs, of 
Louisiana, offered and the House passed House Resolution 1022, 
authorizing the Clerk and Sergeant at Arms to appear and deliver 
original House documents to the grand jury.(18)
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18. 114 Cong. Rec. 80, 81, 90th Cong. 2d Sess., Jan. 16, 1968.

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[[Page 630]]

Sec. 23.9 The Doorkeeper reports receipt of a subpena duces tecum to 
    the Speaker, who lays the matter before the House.

    On Apr. 13, 1961,(19) the Speaker, Sam Rayburn, of 
Texas, laid before the House the following communication, which was 
read by the Clerk:
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19. 107 Cong. Rec. 5851, 87th Cong. 1st Sess.

                                     Office of the Doorkeeper,
                                       House of Representatives,
                                 Washington, D.C., April 13, 1961.
        Hon. Sam Rayburn,
        U.S. House of Representatives,
        Washington, D.C.

            Dear Sir: As Doorkeeper of the House of Representatives, I 
        have received a subpena from the U.S. District Court for the 
        District of Columbia to appear regarding the case of Claude 
        Anderson Taylor (criminal case No. 965-60).
            The subpena directed me to appear before said court as a 
        witness in the case and to bring with me certain and sundry 
        papers therein described in the House of Representatives.
            Since the development of this case has extended into the 
        87th Congress, and it is well recognized that each House 
        controls its own papers, this matter is presented for such 
        action as the House, in its wisdom, may see fit to take.
              Respectfully yours,

                                                  Wm. M. Miller,
                             Doorkeeper, House of Representatives.

    Mr. John W. McCormack, of Massachusetts, offered and the House 
passed House Resolution 256 authorizing the Doorkeeper to appear before 
the court but not take with him any papers or documents on file in his 
office or under his control or in possession or control of the House of 
Representatives, except those documents which the court determines to 
be material and relevant.(20)
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20. 107 Cong. Rec. 5852, 87th Cong. 1st Sess., Apr. 13, 1961.
---------------------------------------------------------------------------

Immunities of Officers and Employees; Dombrowski v Eastlard

Sec. 23.10 The Speech or Debate Clause of the U.S. Constitution (art. 
    I, Sec. 6) does not immunize a committee counsel from civil 
    liability for tortious conduct, and such an action will not be 
    dismissed when there is substantial testimony regarding his alleged 
    participation in unconstitutional activity.

    In Dombrowski v Eastland, 387 U.S. 82 (1967), a suit alleging that 
the Chairman and Counsel of the Subcommittee on Internal Security of 
the Senate Judiciary Committee tortiously participated in a conspiracy 
to seize petitioners' property and records in violation of the fourth 
amendment, the Supreme Court dismissed the action as to the Chairman, 
but remanded

[[Page 631]]

it for a finding of facts of alleged illegal activity by the Counsel. A 
significant consideration was the Court's interpretation of the state 
of the law at that time, that immunity under the Speech or Debate 
Clause was ``less absolute, although applicable, when applied to 
officers or employees, rather than to legislators themselves,'' and 
that, when applied to a legislator, the clause ``deserves greater 
respect than where an official acting on behalf of the legislator is 
sued.''

    The Court also noted that the record showed no involvement by the 
Chairman ``in any activity that could result in liability,'' whereas it 
revealed ``controverted evidence . . . which afford[ed] more than 
merely colorable substance to petitioners assertions . . . sufficient 
to entitle petitioners to go to trial'' as to the 
Counsel.(1)
---------------------------------------------------------------------------
 1. Dombrowski v Eastland, 387 U.S. 82, 84 (1967).
---------------------------------------------------------------------------

Powell v McCormack

Sec. 23.11 An officer who executes an order pursuant to a House 
    resolution held to be unconstitutional is not immune from suit.

    In Powell v McCormack, 395 U.S. 486 (1969),(2) a civil 
action for declaratory and injunctive relief, the Clerk, Sergeant at 
Arms, and Doorkeeper of the House, along with several Members, were 
sued individually and in their Representative capacities for executing 
House Resolution 278, which denied administration of the oath to the 
plaintiff, Adam C. Powell, a Member-elect from New York, in the 90th 
Congress.(3)
---------------------------------------------------------------------------
 2. See 115 Cong. Rec. 17326-42, 91st Cong. 1st Sess., June 25, 1969, 
        for full text of the Court's opinion. See also 113 Cong. Rec. 
        8729-62, 90th Cong. 1st Sess., Apr. 10, 1967, for memoranda of 
        counsel.
 3. See 113 Cong. Rec. 4997 et seq., 90th Cong. 1st Sess., Mar. 1, 
        1967, for the text of H. Res. 278 providing for imposition of a 
        fine, and for the text of amendment providing for exclusion of 
        Mr. Powell.
---------------------------------------------------------------------------

    The complaint in Powell alleged as actionable the Clerk's threat to 
refuse to perform for the plaintiff those services to which a duly 
elected Member was entitled, the Sergeant at Arms' refusal and threat 
to continue to refuse to pay salary and other moneys to which a duly 
elected Member was entitled, and the Doorkeeper's refusal and threat to 
continue to refuse to admit the plaintiff to the Hall of the 
House.(4) The complaint ex

[[Page 632]]

pressly stated that these refusals by the respective officers were made 
``under color of the authority and mandate of House Resolution 278.'' 
The Supreme Court dismissed the action against the Members without 
determining whether they would be immune,(5) and held that 
the naming of the House officers provided a sufficient basis for 
judicial review.(6)
---------------------------------------------------------------------------
 4. Powell v McCormack, 395 U.S. 486, 493 (1969). The resolution of 
        exclusion [H. Res. 278], appearing in 113 Cong. Rec. 6036-39, 
        90th Cong. 1st Sess., Mar. 9, 1967, neither expressly ordered 
        the officers to refuse to pay or perform services for Powell 
        nor provided that he should no longer be entitled to the salary 
        and perquisites of office. Nonetheless, these refusals were 
        implied because the resolution excluded him from membership in 
        the 90th Congress.
 5. See Chs. 7 and 12, infra, for discussion of this case as it relates 
        to Members.
 6. See Powell v McCormack, 395 U.S. 486, 506 (1969).
---------------------------------------------------------------------------

    In finding that Congress was not authorized to exclude a Member-
elect who met the constitutional qualifications of age, inhabitancy, 
and citizenship, a finding which rendered unconstitutional House 
Resolution 278 of the 90th Congress, the Court held, ``That House 
employees are acting pursuant to express orders of the House does not 
bar judicial review . . .''(7) and ``. . . petitioners are 
entitled to maintain their action against House employees and to 
judicial review of the propriety of the decision to exclude petitioner 
Powell.(8) The Court also indicated that Powell could sue 
the Sergeant at Arms to determine entitlement to mandatory relief for 
salary withheld pursuant to an unconstitutional House 
resolution.(9)
---------------------------------------------------------------------------
 7. Powell v McCormack, 395 U.S. 486, 504 (1969).
 8. Powell v McCormack, 395 U.S. 486, 506 (1969).
 9. Powell v McCormack, 395 U.S. 486, 500, n. 16 (1969).
---------------------------------------------------------------------------

    In reaching these conclusions, the Court relied on Kilburn v 
Thompson, 103 U.S. 168 (1881),(10) which allowed a 
contumacious witness, Hallet Kilbourn, to bring an action for false 
imprisonment against John G. Thompson, the Sergeant at Arms of the 
House, who had executed the warrant for Kilbourn's arrest pursuant to a 
House resolution which the Court found to be an unconstitutional 
exercise of a judicial function by a legislative body. In Kilboun, the 
Court first articulated the doctrine that, although an action against a 
Congressman may be barred by the Speech or Debate Clause, legislative 
employees who participate in an unconstitutional activity are 
responsible for their

[[Page 633]]

acts.(11)  Kilbourn eventually recovered 
$20,000.(12~)
---------------------------------------------------------------------------
10. See 2 Hinds' Precedents Sec. 1612, for a discussion of Kilbourn.
11. See Powell v McCormack, 395 U.S. 486, 504, 505 (1969), stating 
        that, in Kilbourn,'' the Sergeant at Arms was held liable for 
        false imprisonment even though he did nothing more than execute 
        the House Resolution that Kilbourn be arrested and 
        imprisoned.''
12. Kilbourn v Thompson, 11 McArth. & M. 401, 432 (Sup. Ct. D.C. 1883). 
        The 48th Congress appropriated $20,000 to pay Kilbourn directly 
        for the judgment against Thompson (see 23 Stat. 467, Mar. 3, 
        1885).
---------------------------------------------------------------------------

    The Court in Powell concluded that the factual situation did not 
fall within the scope of the Speech or Debate Clause, the purpose of 
which is ``. . . to insure that legislators are not distracted from or 
hindered in the performance of their legislative tasks by being called 
into court to defend their actions.(13)
---------------------------------------------------------------------------
13. ``A legislator is no more or no less hindered or distracted by 
        litigation against a legislative employee calling into question 
        the employee's affirmative action than he would be by the 
        employee's failure to act. Nor is the distraction or hindrance 
        increased because the litigation questions action taken by the 
        employee within rather than without the House. Freedom of 
        legislative activity and the purposes of the Speech or Debate 
        Clause are fully protected if legislators are relieved of the 
        burden of defending themselves.'' Powell v McCormack, 395 U.S. 
        486, 505 (1969).
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Stamler v Willis

Sec. 23.12 Leave to join legislative employees as additional parties 
    defendant may be granted following the dismissal, under the Speech 
    or Debate Clause, of an action against various Members and 
    officials to declare unconstitutional a House rule and to enjoin 
    enforcement of a committee contempt citation.

    In Stamler v Willis, 415 F2d 1365 (7th Cir. 1969); cert. den. 399 
U.S. 929 (1970),(14) persons who were being prosecuted for 
contempt of Congress filed suit to declare Rule XI of the House rules 
violative of the first amendment and to enjoin enforcement of the 
contempt citation of the Committee on UnAmerican Activities. The named 
defendants were certain Members of the House, and two prosecuting 
officials, the Attorney General of the United States and the United 
States Attorney for the Northern District of Illinois. The district 
court dismissed the complaint under the Speech or Debate Clause as to 
the Members and, without considering

[[Page 634]]

whether this immunity applied to executive officials, held that the 
action against the Attorney General and United States Attorney, being 
``ancillary to the claims against the Congressional defendants,'' must 
also be dismissed.(15)
---------------------------------------------------------------------------
14. See also 287 F Supp 734 (N.D. Ill., 1968) for the district court 
        opinion which dismissed the action under the Speech or Debate 
        Clause as to Members of Congress.
15. Stamler v Willis, 287 F Supp 734, 739 (N.D. Ill., 1968).
---------------------------------------------------------------------------

    On appeal, the circuit court affirmed the dismissal of the 
complaint as to the Members of Congress, but reversed the dismissal as 
to the prosecuting officials, holding that they would have to defend 
their actions in court. In addition, the court on its own motion 
granted leave to amend the complaint to add additional parties 
defendant, such as committee officials, ``. . . for the sole purpose of 
making effective relief possible in this declaratory and injunctive 
action.'' The court offered this opportunity to the plaintiffs, if they 
desired to use it, because:

        . . . [I]n view of our decision to dismiss the Congressional 
    defendants from this action, it may develop that complete relief 
    cannot be accorded plaintiffs in the event that they are successful 
    on the merits unless the appropriate agents of the House committee 
    are served and joined as defendants below.(16)
---------------------------------------------------------------------------
16. Stamler v Willis, 415 F2d 1365, 1368 (7th Cir. 1969); cert. den. 
        399 U.S. 929 (1970).
---------------------------------------------------------------------------

Gravel v United States

Sec. 23.13 The Supreme Court has extended the immunity arising under 
    the Speech or Debate Clause to aides to legislators for actions 
    committed in performance of duties that are within the sphere of 
    legitimate legislative activity.

    In Gravel v United States, 408 U.S. 606 (1972), which arose out of 
a grand jury investigation of possible criminal conduct in the release 
and publication of the so called Pentagon Papers, the Supreme Court 
held, ``. . . the Speech or Debate Clause applies not only to a Member 
but also to his aides insofar as the conduct of the latter would be a 
protected legislative act if performed by the Member 
himself.''(17) The Court adopted the view argued by the 
Senate that the day-to-day work of aides and assistants in the modern 
legislative process is so critical that they must be treated as the 
legislator's alter ego; failure to recognize them as such would 
diminish and frustrate the purpose of the Speech or Debate Clause--to 
prevent intimidation of legislators by the other branches of 
government.(18) Rejecting the

[[Page 635]]

government's contention that this holding was foreclosed by Kilbourn v 
Thompson, 103 U.S. 168 (1881), Dombrowski v Eastland, 387 U.S. 82 
(1967), and Powell v McCormack, 395 U.S. 486 (1969), the Court 
observed, ``Those cases do not hold that persons other than Members of 
Congress are beyond the protection of the [Speech or Debate] Clause 
when they perform or aid in the performance of legislative 
acts.''(19)
---------------------------------------------------------------------------
17. Gravel v United States, 408 U.S. 606, 618 (1972). See Ch. 7, infra, 
        for further discussion of Gravel.
18. Id. at pp. 616, 617. The position of the Senate was presented in 
        its amicus curiae brief, which is reprinted in full in 
        ``Constitutional Immunity of Members of Congress,'' Hearings 
        Before the Joint Committee on Congressional Operations, 93d 
        Cong. 1st Sess., pp. 94-117. Senators Sam J. Ervin, Jr. (N.C.) 
        and William B. Saxbe, (Ohio) personally advocated the cause for 
        the Senate by special leave of the Supreme Court.
19. Gravel v United States, 408 U.S. 618 (1972).
---------------------------------------------------------------------------

    The immunity of an aide is viewed in Gravel as a privilege which 
the legislator may repudiate or waive; it is invocable by the aide only 
on behalf of the legislator and is confined to those services that 
would be protected if performed by the legislator 
himself.(20) The Speech or Debate Clause does not protect 
criminal conduct which threatens the security of the person or property 
of others, nor immunize a legislator or aide from testifying at trials 
or grand jury proceedings involving third-party crimes where the 
questions do not require testimony about a legislative 
act.(1) Furthermore, not all activities performed by a 
legislator and his aides are entitled to protection. The immunity may 
be invoked only as to matters that are an integral part of the 
legislative process.(2)
---------------------------------------------------------------------------
20. Gravel v United States, 408 U.S. 606, 621, 622 (1972).
 1. Id. at pp. 622, 626, the Court saying: ``. . . Article I, Sec. 6, 
        cl. 1 [the Speech or Debate Clause], as we have emphasized, 
        does not purport to confer a general exemption upon Members of 
        Congress from liability or process in criminal cases. While the 
        Speech or Debate Clause recognizes speech, voting, and other 
        legislative acts as exempt from liability that might otherwise 
        attach, it does not privilege either Senator or aide to violate 
        an otherwise valid criminal law in preparing for or 
        implementing legislative acts.''.
            See also Kilbourn v Thompson, 103 U.S. 168 (1881), which 
        held that an arrest by the Sergeant at Arms pursuant to a House 
        order found to be unconstitutional was subject to judicial 
        review.
 2. ``The heart of the clause,'' said the Court in Gravel, is ``speech 
        or debate in either House, and insofar as the clause is 
        construed to reach other matters, they must be an integral part 
        of the deliberative and communicative processes by which 
        Members participate in committee and House proceedings with 
        respect to the consideration and passage or rejection of 
        proposed legislation or with respect to other matters which the 
        Constitution places within the jurisdiction of either House.'' 
        In their dissents, Mr. Justice Brennan stated and Mr. Justice 
        Douglas implied that the majority also excluded from the 
        protected sphere of legislative activities the ``informing 
        function'' defined in Watkins v United States, 354 U.S. 178, 
        200 (1957) as ``the power of Congress to inquire into and 
        publicize corruption, maladministration or inefficiency in 
        agencies of the Government.'' The basis of their belief was the 
        majority's holding that Gravel's alleged arrangement for a 
        private publication of the Pentagon Papers was not shielded 
        from inquiry. Gravel v United States, 408 U.S. 606, 649 (1972).

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[[Page 636]]

Doe v McMillan

Sec. 23.14 Immunity arising under the Speech or Debate Clause has been 
    extended to committee staff personnel for conduct held to be within 
    the sphere of legitimate legislative activity.

    In Doe v McMillan, 412 U.S. 306 (1973), the parents of District of 
Columbia school children, under pseudonyms, sought damages and 
declaratory and injunctive relief for invasion of privacy which 
allegedly resulted from dissemination of a report of the Special 
Subcommittee of the Committee on the District of Columbia on the D.C. 
school system,(3) which identified students by name in 
derogatory contexts. Named as defendants were, among others, the 
Chairman of the House District Committee,(4) plus its 
members, clerk, staff director, and counsel, as well as a consultant to 
that committee; the Superintendent of Documents and the Public Printer 
(officials of the Government Printing Office); officials and employees 
of the D.C. school system; and the United States.
---------------------------------------------------------------------------
 3. This report, H. Rept. No. 91-1681 (1971), which was submitted to 
        the Speaker of the House on Dec. 8, 1970, was authorized by H. 
        Res. 76 (see 115 Cong. Rec. 2784, 91st Cong. 1st Sess., Feb. 5, 
        1969), and was referred to the Committee of the Whole House on 
        the state of the Union and ordered printed (see 116 Cong. Rec. 
        40311, 91st Cong. 1st Sess., Dec. 8, 1970). It was subsequently 
        published and distributed by the Government Printing Office 
        pursuant to 44 USC Sec. Sec. 501 and 701. Doe v McMillan, 412 
        U.S. 306, 307-30X (1973).
 4. Named in the caption of the case is John L. McMillan (S.C.), who 
        was Chairman of the House District Committee at the time this 
        suit was filed and decided.
---------------------------------------------------------------------------

    The U.S. Supreme Court held that the congressional committee 
members, staff officials, and the investigator and consultant were 
absolutely immune under the

[[Page 637]]

Speech or Debate Clause.(5) The Court ruled that authorizing 
an investigation and holding hearings to gather information, preparing 
a report which contains the information, and authorizing the report's 
publication and distribution, because they are integral parts of the 
deliberative and communicative processes by which Members participate 
in the consideration of proposed legislation, are protected by the 
Speech or Debate Clause, even though potentially libelous information 
may be involved. In reaching this decision, the Court followed Gravel v 
United States, 408 U.S. 606, 618 (1972), which held that ``the Speech 
or Debate Clause applies not only to a Member but also to his aides 
insofar as the conduct of the latter would be a protected legislative 
act if performed by the Member  himself.(6)
---------------------------------------------------------------------------
 5. See Doe v McMillan, 412 U.S. 306, 312 (1973): ``. . . [I]t is plain 
        to us that the complaint in this case was barred by the Speech 
        or Debate Clause insofar as it sought relief from the 
        Congressmen-Committee Members, from the committee staff, from 
        the consultant, or from the investigator, for introducing 
        material to the Speaker of the House, and for voting for 
        publication of the report. Doubtless, also, a published report 
        may, without losing Speech or Debate Clause protection, be 
        distributed to and used for legislative purposes by Members of 
        Congress, congressional committees and institutional or 
        individual legislative functionaries. At least in these 
        respects, the actions upon which petitioners sought to 
        predicate liability were legislative acts, Gravel v United 
        States, supra, [408 U.S. 606], at p. 618 [1972], and, as such, 
        were immune from suit.''
 6. The Court in Doe v McMillan applied Speech or Debate Clause 
        immunity to committee officials and employees, citing Gravel as 
        precedent. Gravel, however, dealt only with the immunity of an 
        aide to an individual legislator. The applicability of a 
        Member's immunity to persons other than personal aides was not 
        even discussed in Gravel by way of dicta; in fact, the Court 
        expressly disclaimed the need to discuss ``issues which may 
        arise when Congress or either House, as distinguished from a 
        single Member, orders the publication and/or public 
        distribution of committee hearings, reports or other 
        materials.'' (Gravel, supra, at 626, n. 16). The extension of 
        the Gravel holding to committee staff members supports the 
        inference that the Court in a future case which raises the 
        issue would apply Speech or Debate Clause immunity to officers 
        of the House insofar as they act within the sphere of 
        legitimate legislative activity.
---------------------------------------------------------------------------

    Focusing on the applicability of Speech or Debate Clause immunity 
to the officials who disseminated the report--the Superintendent of 
Documents and the Public Printer--the Court in Doe

[[Page 638]]

v McMillan framed the issue as whether informing the public ``simply 
because authorized by Congress, must always be considered `an integral 
part of the deliberative and communicative processes by which Members 
participate in committee and House proceedings' [citing Gravel] with 
respect to legislative and other matters before the House.'' This 
question was answered in the negative. Observing that republication of 
a libel, even where the initial publication is privileged, is generally 
not protected, the Court in Doe v McMillan held that ``the 
Superintendent of Documents or the Public Printer or legislative 
personnel, who participate in distribution of actionable material 
beyond the reasonable bounds of the legislative task, enjoy no Speech 
or Debate Clause immunity.''
    The Court in Doe v McMillan limited the scope of its holding by 
saying that the Speech or Debate Clause immunity does not protect those 
who, at the direction of Congress or otherwise, distribute actionable 
material to the public at large beyond the Halls of Congress and its 
functionaries, and beyond the apparent needs of the due functioning of 
the legislative process.(7) With respect to the dismissal of 
the suit as to committee members and personnel, the Court pointed out 
they had not acted outside the sphere of legitimate legislative 
activity.
---------------------------------------------------------------------------
 7. The Court noted that it did not decide whether or under what 
        circumstances the clause would immunize distributors of 
        allegedly actionable materials from grand jury questioning, 
        criminal charges, or a suit by the executive to restrain 
        distribution, where Congress has authorized the particular 
        public distribution.
---------------------------------------------------------------------------

        It does not expressly appear from the complaint, nor is it 
    contended in this Court, that either the Members of Congress or the 
    Committee personnel did anything more than conduct the hearings, 
    prepare the report, and authorize its publication.(8)
---------------------------------------------------------------------------
 8. Doe v McMillan at p. 317. Presumably, an allegation that the 
        Members or committee personnel had participated in the public 
        dissemination of actionable material would have caused a 
        different result.

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[[Page 639]]