[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[D. Immunities of Members and Aides]
[Â§ 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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