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


[Page 1618-1625]
 
                               CHAPTER 11
 
                         Questions of Privilege
 
            C. BASIS OF QUESTIONS OF PRIVILEGE OF THE HOUSE
 
Sec. 14. Service of Process on Members

    The service of process on the House or those associated with it, or 
the exercise of authority over it by another coordinate and coequal 
branch of government, including any mandate of process which commands a 
Member's presence before another branch of government during sessions 
of the House, has historically been perceived by the House as a matter 
intimately related to its dignity and the integrity of its proceedings, 
and as constituting an occasion for the raising of the question of the 
privilege of the House.

[[Page 1619]]

    The rules and precedents of the House require that no Member, 
official, staff member, or employee of the House may, either 
voluntarily or in obedience to a subpena, testify regarding official 
functions, documents, or activities of the House without the consent of 
the House being first obtained. Likewise, information on papers 
obtained by Members, officers, and staff employees of the House 
pursuant to their official duties may not be revealed in response to a 
subpena without the consent of the House. Accordingly, when a House 
Member, officer, or employee is subpenaed on a matter relating to House 
business, the privilege of the House arises; he or his supervisor 
therefore advises the Speaker, who lays the facts before the House for 
its consideration.(16)
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16. See 113 Cong. Rec. 29374-76, 90th Cong. 1st Sess., Oct. 25, 1967. 
        For instances where the receipt of judicial process by a House 
        officer or Member has resulted in the presentation of a 
        question of the privilege of the House, see Sec. Sec. 15-17, 
        infra.                          -------------------
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Service of Federal Court Summons

Sec. 14.1 The receipt of a summons naming a Member (who was also 
    Majority Leader) of the House in his official capacity as a 
    defendant in a civil action brought in a federal court raises a 
    question of the privilege of the House and the matter is laid 
    before the House for its consideration.

    On July 8, 1965,(17) the Chair recognized Mr. Carl 
Albert, of Oklahoma, who rose to a question of the privilege of the 
House:
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17. 111 Cong. Rec. 15978, 15979, 89th Cong. 1st Sess.
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        Mr. Albert: Mr. Speaker, I rise to a question of the privilege 
    of the House. The Speaker: (18) The gentleman will state 
    the question of privilege.
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18. John W. McCormack (Mass.).
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        Mr. Albert: Mr. Speaker, in my official capacity as a 
    Representative and as majority leader of this House, I have been 
    served with a summons issued by the U.S. District Court for the 
    District of Columbia to appear in connection with the case of the 
    All-American Protectorate, Inc. against Lyndon B. Johnson, and 
    others.
        Under the precedents of the House, I am unable to comply with 
    this summons without the consent of the House, the privileges of 
    the House being involved. I therefore submit the matter for the 
    consideration of this body.
        I send to the desk the summons.
        The Speaker: The Clerk will read the subpena.

    Thereupon the summons was read to the House.

[[Page 1620]]

    The Speaker and the Minority Leader, Gerald R. Ford, of Michigan, 
had been named in the summons, and both respectively submitted the 
matter to the House. The following proceedings then took place:

        The Speaker: The Chair has addressed a letter to the Attorney 
    General of the United States. The Clerk will read the letter.
        The Clerk read as follows:

                                                     July 8, 1965.
          The Honorable the Attorney General, Department of Justice.

            Dear Sir: I did on July 6, 1965, accept service of a 
        summons in the case of The All-American Protectorate, 
        Incorporated v. Lyndon B. Johnson et al., civil action file No. 
        1583-65, pending in the U.S. District Court for the District of 
        Columbia. The complaint filed in this action names me, 
        individually and as Speaker of the House of Representatives, as 
        a defendant in this proceeding.
            The majority leader of the House of Representatives, the 
        Honorable Carl Albert, and the minority leader, the Honorable 
        Gerald R. Ford, both of whom are named as defendants in this 
        same proceeding, accepted service of summons on July 7, 1965.
            I am including herewith the summons served upon me, and 
        those served upon Representatives Albert and Ford, individually 
        and in their official capacities as majority and minority 
        leaders, respectively, in order that you may proceed in 
        accordance with the law.
              Sincerely,
                                            John W. McCormack,
                                            Speaker of the House
                                               of Representatives.

Service of Federal Court Subpena

Sec. 14.2 Where a Member receives a subpena to appear as a witness in a 
    federal court during a session of the House, a question of the 
    privilege of the House arises and the matter is laid before the 
    House for its consideration.

    On Nov. 17, 1969,(19) Mr. Henry B. Gonzalez, of Texas, 
rose to a question of the privilege of the House:
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19. 115 Cong. Rec. 34301, 34302, 91st Cong. 1st Sess. For additional 
        examples see 107 Cong. Rec. 5844, 87th Cong. 1st Sess., Apr. 
        13, 1961; 107 Cong. Rec. 2481, 87th Cong. 1st Sess., Feb. 21, 
        1961; 107 Cong. Rec. 2480, 2481, 87th Cong. 1st Sess., Feb. 21, 
        1961; 107 Cong. Rec. 2000, 87th Cong. 1st Sess., Feb. 9, 1961; 
        and 106 Cong. Rec. 6131, 86th Cong. 2d Sess., Mar. 21, 1960.
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        Mr. Gonzalez: . . . Mr. Speaker, I have been subpenaed to 
    appear before the U.S. District Court for the Western District of 
    Texas to testify on Wednesday, November 19, 1969, in San Antonio, 
    Tex., in the criminal case of the United States of America against 
    Albert Fuentes, Jr., and Edward J. Montez.
        Under the precedents of the House, I am unable to comply with 
    this subpena without the consent of the House, the privileges of 
    the House being involved. I, therefore, submit the matter for the 
    consideration of this body.

[[Page 1621]]

        Mr. Speaker, I send the subpena to the desk.
        The Speaker: (20) The Clerk will read the subpena.
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20. John W. McCormack (Mass.).
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    There followed a reading of the subpena to the House.
    Parliamentarian's Note: Mr. Gonzalez had no information relevant to 
the case and the House did not authorize his appearance.

Service of Modified Federal Court Subpena

Sec. 14.3 Where a federal court subpena directed to a Member was 
    modified after service by court order, the Member informed the 
    House of the modification when he presented the subpena to the 
    House.

    On Feb. 9, 1961,(1) Mr. Francis E. Walter, of 
Pennsylvania, rose to a question of the privilege of the House and 
addressed the following remarks to the Chair:
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 1. 107 Cong. Rec. 2000, 87th Cong. 1st Sess.
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        Mr. Walter: Mr. Speaker, I have been subpenaed to appear before 
    the U.S. District Court for the District of Columbia, to testify on 
    February 20, 1961, in the case of the United States of America 
    against Martin Popper.
        The subpena, as originally served upon me, required that I 
    appear and testify and bring with me certain documents. A motion to 
    quash that portion of the subpena duces tecum requiring the 
    presentation of documents was granted by Mr. Justice Edward M. 
    Curran on February 3, 1961.
        Under the precedents of the House, I am unable to appear and 
    testify without the consent of the House, the privileges of the 
    House being involved. I therefore submit the matter to the House 
    for its consideration.

    The subpena was sent to the desk and the Speaker (2) 
instructed the Clerk to read it to the House. At the conclusion of the 
Clerk's reading, the House agreed to a privileged resolution 
(3) offered by Mr. John W. McCormack, of Massachusetts, 
authorizing the Member to appear in response to the subpena as 
modified.
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 2. 2. Sam Rayburn (Tex.).
 3. H. Res. 155.
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Service of State Court Subpena

Sec. 14.4 Where a Member receives a subpena from a state court, he lays 
    the matter before the House for action.

    On Oct. 18, 1971,(4) Mr. Don H. Clausen, of California, 
rising to a

[[Page 1622]]

question of the privilege of the House, informed the House that he had 
been served with a subpena from the Superior Court of the State of 
California. Upon the delivery of the subpena to the desk, the Speaker 
(5) instructed the Clerk to read the subpena to the House. 
The House took no further action in the matter.
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 4. 117 Cong. Rec. 36494, 92d Cong. 1st Sess. For further 
        illustrations, including some instances where the House adopted 
        resolutions, see 116 Cong. Rec. 11863, 91st Cong. 2d Sess., 
        Apr. 15, 1970; 113 Cong. Rec. 35129, 90th Cong. 1st Sess., Dec. 
        6, 1967; 113 Cong. Rec. 28406, 90th Cong. 1st Sess., Oct. 10, 
        1967; and 111 Cong. Rec. 17002, 89th Cong. 1st Sess., July 15, 
        1965.
 5. Carl Albert (Okla.).
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Sec. 14.5 A Member having been subpenaed to testify at a preliminary 
    hearing in an action pending in the state court rose to a question 
    of the privilege of the House.

    On Sept. 23, 1971,(6) Mr. Joshua Eilberg, of 
Pennsylvania, rose to a question of the privilege of the House and 
addressed the following remarks to the Chair:
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 6. 117 Cong. Rec. 33114, 92d Cong. 1st Sess.
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        Mr. Eilberg: Mr. Speaker, yesterday afternoon, after the House 
    had adjourned, I was subpenaed to appear before the Court of Common 
    Pleas of Philadelphia, Commonwealth of Pennsylvania, to testify 
    this morning, September 23, 1971, at 9 a.m., at a preliminary 
    hearing in an action designated as Commonwealth against Patrick 
    McLaughlin.
        Under the precedents of the House, I was unable to comply with 
    this subpena, without the consent of the House, the privileges of 
    the House being involved. I therefore submit the matter for the 
    consideration of this body.

    The subpena was sent to the desk, and the Speaker (7) 
instructed the Clerk to read it to the House. The House did not adopt a 
resolution permitting him to attend.
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 7. Carl Albert (Okla.).
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Service of Subpena Issued by District of Columbia Court

Sec. 14.6 The receipt by a Member of a subpena to appear before a court 
    of the District of Columbia gave rise to a question of the 
    privilege of the House.

    On Jan. 19, 1972,(8) the Chair recognized Mr. George P. 
Miller, of California, on a question of the privilege of the House:
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 8. 118 Cong. Rec. 318, 92d Cong. 2d Sess. Additional illustrations may 
        be found at 115 Cong. Rec. 26008, 91st Cong. 1st Sess., Sept. 
        18, 1969, and 110 Cong. Rec. 1510, 88th Cong. 2d Sess., Jan. 
        31, 1964.
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        Mr. Miller of California: Mr. Speaker, I rise to a question of 
    the privileges of the House.
        Mr. Speaker, I have been subpenaed to appear before the 
    criminal assignment branch of the District of Columbia Court of 
    General Sessions on January 28, 1972, in the case of the United 
    States of America against Ernest Long.

[[Page 1623]]

        Under the precedents of the House, I am unable to comply with 
    the subpena without the consent of the House, the privileges of the 
    House being involved. I therefore submit the matter for the 
    consideration of this body.
        I send the subpena to the desk.
        The Speaker: (9) The Clerk will report the subpena.
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 9. Carl Albert (Okla.).
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    After the reading of the subpena, a privileged resolution 
(10) was offered by Mr. Hale Boggs, of Louisiana, 
authorizing the Member to appear in response to the subpena. The 
resolution was agreed to.
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10. H. Res. 767.
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Service of Municipal Court Subpena

Sec. 14.7 A Member having received a summons to appear before a 
    municipal court rose to a question of the privilege of the House.

    On June 9, 1964,(11) Mr. John E. Moss, Jr., of 
California, rose to a question of the privilege of the House and 
informed the House that he had been summoned to appear and testify 
before the Juvenile and Domestic Relations Court of the city of 
Alexandria, Virginia. The summons was sent to the desk, whereupon the 
Speaker (12) instructed the Clerk to read it to the House. 
At the conclusion of the Clerk's reading, a resolution (13) 
was offered by Mr. Carl Albert, of Oklahoma, authorizing the Member to 
appear in response to the summons. The resolution was agreed to.
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11. 110 Cong. Rec. 13017, 13018, 88th Cong. 2d Sess. For an additional 
        example see 99 Cong. Rec. 3013, 3014, 83d Cong. 1st Sess., Apr. 
        13, 1953.
12. John W. McCormack (Mass.).
13. H. Res. 743.
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Service of Executive Agency, Subpena

Sec. 14.8 The receipt by a Member of a subpena to appear and testify 
    before a federal executive agency gives rise to a question of the 
    privilege of the House.

    On Mar. 18, 1963,(14) after the Chair's recognition of 
Mr. Alvin E. O'Konski, of Wisconsin, on a question of privilege, the 
following proceedings occurred:
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14. 109 Cong. Rec. 4392, 88th Cong. 1st Sess.
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        Mr. O'Konski: Mr. Speaker, I rise to a question of privilege of 
    the House. . . .
        Mr. Speaker, I have been subpenaed to appear before the Federal 
    Communications Commission or Charles J. Frederick, hearing 
    examiner, at the new Post Office Building, Pennsylvania Avenue and 
    13th Street NW., Washington, D.C., to testify on March 20,

[[Page 1624]]

    1963, at 10 a.m., in the matter of Central Wisconsin Television, 
    Inc., Federal Communications Commission docket No. 14933-14934. 
    Under the precedents of the House, I am unable to comply with this 
    subpena without the consent of the House, the privileges of the 
    House being involved. I therefore submit the matter for the 
    consideration of this body.
        The Speaker:(15) The Clerk will report the subpena.
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15. John W. McCormack (Mass.).
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    The House then heard the report of the Clerk.
    The House took no further action in the matter.

Service of Court Orders To Appear and Show Cause

Sec. 14.9 A Member, having been served by a state court with an order 
    to appear and show cause, rose to a question of the privilege of 
    the House.

    On May 19, 1970,(16) Mr. Sam Steiger, of Arizona, rose 
to a question of the privilege of the House and informed the House that 
he had been served with an order to appear and to show cause issued by 
the Superior Court of the State of Arizona. The order was sent to the 
desk, whereupon the Speaker (17) instructed the Clerk to 
read it to the House.
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16. 116 Cong. Rec. 16165, 91st Cong. 2d Sess.
17. John W. McCormack (Mass.).
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    Parliamentarian's Note: The Member had been served with a subpena 
duces tecum by a state court to appear as a witness for the plaintiff 
and to bring with him certain documents in his possession. He appeared 
in response to the subpena, but refused to bring the requested 
documents and refused to answer oral interrogatories propounded by 
counsel for plaintiff. He was then served with an order to show cause 
why he should not be compelled to answer the interrogatories which had 
been propounded to him. Because the court order requested him to appear 
while Congress was in session, he raised the question of the privilege 
of the House. He did not request the House to authorize his appearance, 
and no further action was taken in the matter.

Service of Order To Appear and Answer Interrogatories

Sec. 14.10 A Member, having been served by a state court with an order 
    to appear and answer oral interrogatories, rose to a question of 
    the privileges of the House.

    On July 22, 1970,(18) Mr. Sam Steiger, of Arizona, 
rising to a question of the privilege of the

[[Page 1625]]

House, informed the House that he had been served with an order to 
appear and answer oral interrogatories issued by the Superior Court of 
the State of Arizona. The order was sent to the desk whereupon the 
Speaker (19) instructed the Clerk to read it to the House. 
At the conclusion of the reading, the House agreed to a privileged 
resolution (20) offered by Mr. Carl Albert, of Oklahoma, 
authorizing the Member to appear in response to the order at any time 
when the House had adjourned to a day certain for a period in excess of 
three days.
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18. 116 Cong. Rec. 25333, 25334, 91st Cong. 2d Sess.
19. John W. McCormack (Mass.).
20. H. Res. 1155.
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