[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 11. Questions of Privilege]
[C. Basis of Questions of Privilege of the House]
[Â§ 19. Providing for Legal Counsel]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1648-1653]
 
                               CHAPTER 11
 
                         Questions of Privilege
 
            C. BASIS OF QUESTIONS OF PRIVILEGE OF THE HOUSE
 
Sec. 19. Providing for Legal Counsel

    Legal counsel, through the Department of Justice, is made available 
to the officers--but not

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the Members--of the House pursuant to 2 USC Sec. 118, which provides in 
part:

        In any action brought against any person for or on account of 
    anything done by him while an officer of either House of Congress 
    in the discharge of his official duty, in executing any order of 
    such House, the district attorney for the district within which the 
    action is brought, on being thereto requested by the officer sued, 
    shall enter an appearance in behalf of such officer . . . and the 
    defense of such action shall thenceforth be conducted under the 
    supervision and direction of the Attorney General.

However, the Attorney General has recommended that the House retain 
other legal counsel in cases where he had determined that a conflict 
may have existed between the legislative and executive 
interests.                          -------------------

Appointment of Special Counsel by the Speaker

Sec. 19.1 On one occasion the House, by resolution, authorized the 
    Speaker to appoint and fix the compensation for a special counsel 
    to represent the House and those Members named as defendants in a 
    suit brought by a former Member.

    On Mar. 9, 1967,(5) the Speaker (6) announced 
as a matter involving a question of the privilege of the House, that he 
and certain other Members and officers of the House had been served 
with a summons issued by the U.S. District Court for the District of 
Columbia in connection with an action (7) brought by Adam 
Clayton Powell, Jr. Following the reading of the summons by the Clerk, 
Mr. Hale Boggs, of Louisiana, rose to a question of the privilege of 
the House and offered a resolution (H. Res. 376) as follows:
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 5. 113 Cong. Rec. 6035-48, 90th Cong. 1st Sess.
 6. John W. McCormack (Mass.).
 7. Civil Action File No. 559-61 (U.S.D.C.D. D.C.).
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        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 spe

[[Page 1650]]

    cial 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.

    Debate on the resolution ensued, after which the resolution was 
agreed to.(8~)
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 8. Parliamentarian's Note: On Mar. 14, 1967, the Speaker announced the 
        appointment of special counsel pursuant to H. Res. 376. 113 
        Cong. Rec. 6603, 90th Cong. 1st Sess. The House, on Feb. 17, 
        1969, by simple resolution (H. Res. 243) continued the 
        authority granted the Speaker by the provisions of H. Res. 376, 
        90th Congress, to retain special counsel, 115 Cong. Rec. 3359, 
        91st Cong. 1st Sess.
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Appointment of Special Counsel for Members and Employees

Sec. 19.2 The House may, by resolution, authorize a committee to 
    arrange for the legal defense of certain committee members and 
    employees who are named in their official capacities as defendants 
    in a civil action.

    On Aug. 1, 1953,(9) Mr. Charles A. Halleck, of Indiana, 
offered a resolution (10) authorizing the Committee on the 
Judiciary to file appearances, to provide counsel and to provide for 
the defense of certain members and employees of the Committee on Un-
American Activities who had been named as parties defendant in a civil 
action (11) brought in the Superior Court for the State of 
California. The resolution stated:
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 9. 99 Cong. Rec. 10949, 10950, 83d Cong. 1st Sess.
10. H. Res. 386.
11. Michael Wilson et al. v Loew's Inc., et al.
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        Whereas Harold H. Velde, of Illinois, Donald L. Jackson, of 
    California, Morgan M. Moulder, of Missouri, Clyde Doyle, of 
    California, and James B. Frazier, Jr., of Tennessee, all 
    Representatives in the Congress of the United States; and Louis J. 
    Russell, and William Wheeler, employees of the House of 
    Representatives, were by sub

[[Page 1651]]

    poenas commanded to appear on Monday and Tuesday, March 30 and 31, 
    1953 in the city of Los Angeles, Calif., and to testify and give 
    their depositions in the case of Michael Wilson, et al. v. Loew's, 
    Incorporated, et al., an action pending in the Supreme Court of 
    California in and for the County of Los Angeles; and . . .
        Whereas Harold H. Velde, Donald L. Jackson, Morgan M. Moulder, 
    Clyde Doyle, James B. Frazier, Jr., Louis J. Russell, and William 
    Wheeler appeared specially in the case of Michael Wilson, et al. 
    versus Loew's Incorporated, et al., for the purpose of moving to 
    set aside the service of summonses and to quash the subpoenas with 
    which they had been served; and
        Whereas on July 20, 1953, the Superior Court of the State of 
    California in and for the County of Los Angeles ruled that the 
    aforesaid summonses served upon Harold H. Velde, Morgan M. Moulder, 
    James B. Frazier, Jr., and Louis .J. Russell should be set aside 
    for the reason that it was the public policy of the State of 
    California ``that nonresident members and attaches of a 
    congressional committee who enter the territorial jurisdiction of 
    its courts for the controlling purpose of conducting legislative 
    hearings pursuant to law should be privileged from the service of 
    process in civil litigation''; and . . .Whereas on July 20, 1953, 
    the Superior Court of the State of California in and for the County 
    of Los Angeles further ruled that the subpoenas served on Clyde 
    Doyle and Donald Jackson should be recalled and quashed because 
    such service was invalid under the aforementioned article I, 
    section 6, of the Constitution of the United States; and
        Whereas the case of Michael Wilson, et al. v. Loew's 
    Incorporated, et al. in which the aforementioned Members, former 
    Members, and employees of the House of Representatives are named 
    parties defendant is still pending; and
        Whereas the summonses with respect to Donald L. Jackson, Clyde 
    Doyle, and William Wheeler and the subpoena with respect to William 
    Wheeler in the case of Michael Wilson, et al. v. Loew's 
    Incorporated, et al. have not been quashed:
        Resolved, That the House of Representatives hereby approves of 
    the special appearances of Harold H. Velde, Donald L. Jackson, 
    Morgan M. Moulder, Clyde Doyle, James B. Frazier, Jr., Louis J. 
    Russell, and William Wheeler heretofore entered in the case of 
    Michael Wilson, et al. v. Loew's Incorporated, et al.; and be it 
    further
        Resolved, That the Committee on the Judiciary, acting as a 
    whole or by subcommittee, is hereby authorized to direct the filing 
    in the case of Michael Wilson, et al. v. Loew's Incorporated, et 
    al. of such special or general appearances on behalf of any of the 
    Members, former Members, or employees of the House of 
    Representatives named as defendants therein, and to direct such 
    other or further action with respect to the aforementioned 
    defendants in such manner as will, in thejudgment of the Committee 
    on the Judiciary, be consistent with the rights and privileges of 
    the House of Representatives; and be it further
        Resolved, That the Committee on the Judiciary is also 
    authorized and directed to arrange for the defense of the Members, 
    former Members, and employees of the Committee on Un-Amer

[[Page 1652]]

    ican Activities in any suit hereafter brought against such Members, 
    former Members, and employees, or any one or more of them, growing 
    out of the actions of such Members, former Members, and employees 
    while performing such duties and obligations imposed upon them by 
    the laws of the Congress and the rules and resolutions of the House 
    of Representatives. The Committee on the Judiciary is authorized to 
    incur all expenses necessary for the purposes hereof. . . .

    The resolution was agreed to, and a motion to reconsider was laid 
on the table.(l2)
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12. Parliamentarian's Note: On Sept. 6, 1961, the House, by resolution 
        (H. Res. 417), continued the authority of the Committee on the 
        Judiciary granted by the provisions of H. Res. 386, 83d Cong., 
        to arrange for the legal defense of members, former members and 
        employees of the Committee on Un-American Activities. 107 Cong. 
        Rec. 18240, 87th Cong. 1st Sess.
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Authorizing the Clerk to Appoint Special Counsel

Sec. 19.3 On one occasion the House, by resolution, authorized the 
    Clerk to appoint and fix compensation for counsel to represent him 
    in any suit brought against him as supervisory officer under the 
    Corrupt Practices Act of 1925 or the Federal Election Campaign Act 
    of 1971.

    On Feb. 22, 1972,(13) the Speaker (14) laid 
before the House a communication from the Clerk advising that a civil 
action (15) had been filed in the U.S. District Court for 
the District of Columbia naming, among others, the Clerk of the House 
as a party defendant. The Clerk in his communication also advised that 
pursuant to 2 USC Sec. 118 he had on Feb. 18, 1972, written to the 
Acting Attorney General of the United States and to the U.S. Attorney 
for the District of Columbia requesting that they carry out their 
assigned statutory responsibilities in defending the Clerk in this 
matter.
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13. 118 Cong. Rec. 5024, 92d Cong. 2d Sess.
14. Carl Albert (Okla.).
15. Nader et al. v Jennings et al., Civil Action File No. 243-72 
        (U.S.D.C. D. D.C.).
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    On Mar. 15, 1972,(16) the Speaker laid before the House 
a communication from the Clerk advising that in response to his request 
of Feb. 18, 1972, he was in receipt of replies from the Department of 
Justice and the U.S. Attorney for the District of Columbia in which 
they agreed, pursuant to 2 USC Sec. 118, to furnish representation for 
the Clerk in the civil action unless a ``divergence of interest'' 
developed between the positions of

[[Page 1653]]

the Clerk and the Justice Department.
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16. 118 Cong. Rec. 8470, 92d Cong. 2d Sess.
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    On May 3, 1972, the Clerk received a letter from the Attorney 
General stating that a ``divergence of interest'' had developed between 
the positions of the Clerk and the Justice Department and requesting 
the Clerk to obtain other counsel. The letter was not communicated to 
the Speaker or laid before the House. Pursuant to the authority granted 
the Clerk in House Resolution 955 the Clerk obtained other counsel.
    On May 3, 1972,(17) Mr. Wayne L. Hays, of Ohio, offered 
the resolution below (H. Res. 955) as a matter involving the question 
of the privilege of the House:
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17. 118 Cong. Rec. 15627, 15628, 92d Cong. 2d Sess.
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        Resolved, That the Clerk of the House of Representatives is 
    hereby authorized to appoint and fix the compensation of such 
    special counsel as he may deem necessary to represent the Clerk and 
    the interests of the House in any suit now pending or hereafter 
    brought against the Clerk arising out of his actions while 
    performing duties or obligations imposed upon him by the Federal 
    Corrupt Practices Act, 1925, or the Federal Election Campaign Act 
    of 1971; 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 approved by the Committee on House 
    Administration.

    The House agreed to the resolution.
    On Jan. 6, 1973,(18)~~ the House, by unanimous consent, 
agreed to a resolution (19) continuing the authority of the 
Clerk to appoint and fix compensation for legal counsel in suits 
brought against him under the Corrupt Practices Act of 1925 or the 
Federal Election Campaign Act of 1971.
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18. 119 Cong. Rec. 379, 93d Cong. 1st Sess.
19. H. Res. 92.
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    Parliamentarian's Note: The provision for payment of such expenses 
is now permanent law [see 87 Stat. 527 at p. 537, Pub. L. No. 93-145 
(Nov. 1, 1973)], but the statute authorizes compensation only for 
attorneys who represent the Clerk in suits brought against him in the 
performance of his official duties as mandated by either the Federal 
Corrupt Practices Act of 1925 or the Federal Election Campaign Act of 
1971. There is no comparable provision of law which authorizes the 
payment by the House of attorneys' fees for Members indicted, sued, or 
subpoenaed as witnesses either in their official or individual 
capacities.

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