[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 11. Questions of Privilege]
[C. Basis of Questions of Privilege of the House]
[Â§ 18. Authorization to Respond to Process]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1643-1648]
 
                               CHAPTER 11
 
                         Questions of Privilege
 
            C. BASIS OF QUESTIONS OF PRIVILEGE OF THE HOUSE
 
Sec. 18. Authorization to Respond to Process

    When the Clerk or other officer of the House is served with a 
subpena duces tecum when the House is in session, the House ordinarily 
deals with each subpena by resolution on an individual basis. During 
periods of adjournment, however, the current practice is to authorize 
the officer in receipt of such a court order to appear (but not to take 
original documents of the House) pursuant to a resolution providing 
continuing authority to respond during that period. The court may be 
provided with copies of House documents except

[[Page 1644]]

those taken in executive session, upon the court's determination of 
their relevancy.
    Prior to the 80th Congress, it was not the custom for the House to 
agree to resolutions providing continuing authority for the Clerk or 
other House officers to respond to subpenas duces tecum during periods 
of adjournment. From the 80th through the 83d Congresses, resolutions 
were adopted providing for continuing authority to respond to subpenas 
duces tecum where the court issuing the subpena required the documents 
for use in cases relating to the refusal of witnesses to testify before 
congressional committees. These resolutions pertained only to subpenas 
issued by courts of the United States.
    For example, the 80th Congress approved a resolution which provided 
that when, during that Congress, a subpena duces tecum was directed to 
the Clerk or any officer or employee of the House from any court of the 
United States considering a case based on the refusal of a witness to 
appear or testify before a congressional committee, the Clerk or other 
officer was authorized to appear but not with any documents. The courts 
were, however, given permission to make copies of relevant 
documents.(14) In the second session of the 83d Congress, 
the House adopted a similar resolution which could be invoked during 
any period of adjournment of that Congress.(15)
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14. H. Res. 584, 94 Cong. Rec. 5433, 80th Cong. 2d Sess., May 6, 1948. 
        See also H. Res. 864, 96 Cong. Rec. 15636, 81st Cong. 2d Sess., 
        Sept. 22, 1950: H. Res. 481, 97 Cong. Rec. 13777, 82d Cong. 1st 
        Sess., Oct. 20, 1951; and H. Res. 391, 99 Cong. Rec. 11132, 83d 
        Cong. 1st Sess., Aug. 3, 1953.
15. H. Res. 711, 100 Cong. Rec. 15547, 83d Cong. 2d Sess., Aug. 20, 
        1954.
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    In the 84th and subsequent Congresses, the House approved of 
resolutions that provided that when documentary evidence under the 
control of the House was needed in any court of justice during any 
recess or adjournment of that Congress, the Clerk or other House 
officer was authorized to appear in answer to a subpena duces tecum but 
not to take documents. The courts were given permission to make copies 
of documents (except for executive session materials) upon the issuance 
of a court order declaring their relevancy.(16)
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16. H. Res. 341, 101 Cong. Rec. 13063, 84th Cong. 1st Sess., Aug. 2, 
        1955. See also H. Res. 416, 103 Cong. Rec. 16759, 16760, 85th 
        Cong. 1st Sess., Aug. 30, 1957; and H. Res. 224, 105 Cong. Rec. 
        5260, 86th Cong. 1st Sess., Mar. 25, 1959.

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[[Page 1645]]

 Speaker's Power to Authorize Response to Process

Sec. 18.1 On one occasion, the House by resolution authorized the 
    Speaker to permit House officers and employees to appear in 
    response to subpenas issued by a U.S. District Court in connection 
    with an investigation being conducted by a grand jury.

    On Oct. 19, 1967,(17) communications from the Clerk of 
the House and the chairman of a House committee were presented to the 
House advising that they were in receipt of subpenas issued by the U.S. 
District Court for the District of Columbia. Mr. Carl Albert, of 
Oklahoma, offered a resolution (18) giving the Speaker 
authorization to permit certain officers and employees to respond to 
the subpenas. The resolution provided:
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17. 113 Cong. Rec. 29374-76, 90th Cong. 1st Sess.
18. H. Res. 950.
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        Whereas in the investigation of possible violations of Title 
    18, United States Code, Sections 201, 287, 371, 641, 1001 and 1505, 
    a subpena ad testificandum was issued by the United States District 
    Court for the District of Columbia and addressed to W. Pat 
    Jennings, Clerk of the House of Representatives, directing him to 
    appear before the grand jury of said court on October 23, 1967, to 
    testify in connection with matters under investigation by the grand 
    jury; and
        Whereas other officers and staff employees of the House of 
    Representatives have received, or may receive, subpenas ad 
    testificandum to appear before the said grand jury in connection 
    with the before-mentioned investigation; and
        Whereas information secured by officers and staff employees of 
    the House of Representatives pursuant to their official duties as 
    such officers or employees may not be revealed without the consent 
    of the House: Therefore be it
        Resolved, That W. Pat Jennings, Clerk of the House of 
    Representatives, is authorized to appear in response to the subpena 
    before-mentioned as a witness before the grand jury; and be it 
    further
        Resolved, That the Speaker of the House of Representatives is 
    authorized to permit any other officer or employee of the House who 
    is in receipt of or shall receive a subpena ad testificandum in 
    connection with the proceedings conducted by the grand jury before-
    mentioned to appear in response thereto; and be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the said court.

    The resolution was agreed to.
    A motion to reconsider was laid on the table.
    Parliamentarian's Note: The U.S. attorney had advised the Speaker 
that several officers and employees of the House might be subpenaed to 
appear and testify

[[Page 1646]]

before the federal grand jury in connection with its investigation into 
possible violations of the Criminal Code. Rather than have each officer 
and employee authorized by separate resolution, the Speaker was given 
the authority to authorize such appearances. Each officer and employee 
who thereafter received a subpena in connection with the grand jury 
proceedings informed the Speaker who then responded with a written 
authorization.

Duration of Authorization

Sec. 18.2 Where one Congress has, by resolution, authorized a Member to 
    appear in response to a subpena issued by a federal court, and the 
    court's proceedings extend into the next Congress, the Member must 
    again obtain permission of the House if he still wishes to respond 
    to the subpena.

    On Apr. 13, 1961,(19) the Chair recognized Mr. James 
Roosevelt, of California, on a question of privilege:
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19. 107 Cong. Rec. 5844, 87th Cong. 1st Sess. See also 107 Cong. Rec. 
        2480, 87th Cong. 1st Sess., Feb. 21, 1961.
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        Mr. Roosevelt: Mr. Speaker, I rise to a question of the 
    privilege of the House.
        The Speaker: (20) The gentleman will state it.
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20. Sam Rayburn (Tex.).
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        Mr. Roosevelt: Mr. Speaker, during the 86th Congress, the House 
    authorized me to appear in response to a subpena issued by the U.S. 
    District Court for the District of Columbia, directing me to appear 
    in Washington, D.C., to testify in the case of the United States of 
    America against Martin Popper.
        The case was originally scheduled for trial on June 21, 1960, 
    but was adjourned and is now scheduled to begin on April 25, 1961.
        Under the precedents of the House, I am unable to comply with 
    this subpena without the consent of this House, the privileges of 
    the House being involved. I, therefore, submit the matter for the 
    consideration of this body.
        Mr. Speaker, I send to the desk the subpena.
        The Speaker: The Clerk will read the subpena.

    After the Clerk read the subpena, the House agreed to a resolution 
(2~1) offered by Mr. John W. McCormack, of Massachusetts, 
authorizing the Member to appear in response to the subpena.
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21. H. Res. 254.
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Sec. 18.3 The Clerk having notified the House that he had been 
    authorized by the preceding Congress to appear as a witness and to 
    produce specified documents in a certain case and that the case

[[Page 1647]]

    was still in progress, the House passed a resolution permitting his 
    further appearance as a witness.

    On Mar. 27, 1961,(~22~) the Speaker (1) laid 
before the House as a matter involving a question of the privilege of 
the House the following communication from the Clerk:
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22. 107 Cong. Rec. 4917-19, 87th Cong. 1st Sess.
 1. Sam Rayburn (Tex.).

                                                   March 24, 1961.
    The Honorable the Speaker,
    House of Representatives.

        Sir: As the Clerk of the House of the 86th Congress I received, 
    from the U.S. District Court for the Southern District of New York, 
    two subpenas duces tecum, one in the case of Peter Seeger (criminal 
    No. C-152-240), and the other in the case of Elliott Sullivan 
    (criminal No. C-152-238). Both subpenas directed me to appear 
    before said court as a witness in these cases and to bring with me 
    certain and sundry papers therein described in the files of the 
    House of Representatives.
        This matter was brought to the attention of the last House, as 
    a result of which House Resolutions 476 and 477 were adopted on 
    March 15, 1960.
        Since the development of these cases 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,

                                               Ralph R. Roberts,
                             Clerk, U.S. House of Representatives.

    After a reading of the subpena to the House, Mr. John W. McCormack, 
of Massachusetts, offered a resolution (2) authorizing the 
Clerk to appear in response to the subpena but permitting the 
production of certified copies of only those subpena House papers and 
documents subsequently determined by the court to be material and 
relevant.
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 2. H. Res. 234.
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Authorization During Recesses and Adjournments

Sec. 18.4 The House may, by resolution, authorize court appearances 
    while prohibiting the disclosure of minutes or transcripts of 
    committee executive sessions in response to subpenas served upon 
    Members, officers, or employees during recesses and adjournments.

    On Jan. 13, 1973,(3) Mr. Thomas P. O'Neill, Jr., of 
Massachusetts, offered for immediate consideration the following 
resolution: (4)
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 3. 119 Cong. Rec. 30, 31, 93d Cong. 1st Sess. For similar authorizing 
        resolutions adopted by recent Congresses see 117 Cong. Rec. 16, 
        92d Cong. 1st Sess., Jan. 21, 1971; 115 Cong. Rec. 37, 91st 
        Cong. 1st Sess., Jan. 3, 1969; and 113 Cong. Rec. 35, 90th 
        Cong. 1st Sess., Jan. 10, 1967.
 4. H. Res. 12.

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[[Page 1648]]

        Whereas, by the privileges of this House no evidence of a 
    documentary character under the control and in the possession of 
    the House of Representatives can, by the mandate of process of the 
    ordinary courts of justice, be taken from such control or 
    possession except by its permission: Therefore be it
        Resolved, That when it appears by the order of any court in the 
    United States or a judge thereof, or of any legal officer charged 
    with the administration of the orders of such court or judge, that 
    documentary evidence in the possession and under the control of the 
    House is needful for use in any court of justice or before any 
    judge or such legal officer, for the promotion of justice, this 
    House will take such action thereon as will promote the ends of 
    justice consistently with the privileges and rights of this House; 
    be it further
        Resolved, That during any recess or adjournment of its Ninety-
    third Congress, when a subpena or other order for the production or 
    disclosure of information is by the due process of any court in the 
    United States served upon any Member, officer, or employee of the 
    House of Representatives, directing appearance as a witness before 
    the said court at any time and the production of certain and sundry 
    papers in the possession and under the control of the House of 
    Representatives, that any such Member, officer, or employee of the 
    House, be authorized to appear before said court at the place and 
    time named in any such subpena or order, but no papers or documents 
    in the possession or under the control of the House of 
    Representatives shall be produced in response thereto; and be it 
    further
        Resolved, That when any said court determines upon the 
    materiality and the relevancy of the papers or documents called for 
    in the subpena or other order, then said court, through any of its 
    officers or agents, shall have full permission to attend with all 
    proper parties to the proceedings before said court and at a place 
    under the orders and control of the House of Representatives and 
    take copies of the said documents or papers and the Clerk of the 
    House is authorized to supply certified copies of such documents 
    that the court has found to be material and relevant, except that 
    under no circumstances shall any minutes or transcripts of 
    executive sessions, or any evidence of witnesses in respect 
    thereto, be disclosed or copied, nor shall the possession of said 
    documents and papers by any Member, officer, or employee of the 
    House be disturbed or removed from their place of file or custody 
    under said Member, officer, or employee; and be it further
        Resolved, That a copy of these resolutions be transmitted by 
    the Clerk of the House to any of said courts whenever such writs of 
    subpena or other orders are issued and served as aforesaid.

    The resolution was agreed to.
    A motion to reconsider was laid on the table.