    [Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 112th Congress]
    [112nd Congress]
    [House Document 111-157]
    [Jeffersons Manual of ParliamentaryPractice]
    [Pages 130-149]
    [From the U.S. Government Publishing Office, www.gpo.gov]

                               sec. iii--privilege

    [[Page 131]]

    ance of the Crown, amounts in fact to a perpetual protection
    against the course of justice. In one instance, indeed, it has been
    relaxed by the 10 G. 3, c. 50, which permits judiciary proceedings to go
    on against them. That these privileges must be continually progressive,
    seems to result from their rejecting all definition of them; the
    doctrine being, that ``their dignity and independence are preserved by
    keeping their privileges indefinite; and that `the maxims upon which
    they proceed, together with the method of proceeding, rest entirely in
    their own breast, and are not defined and ascertained by any particular
    stated laws.' '' 1 Blackst., 163, 164.

    Sec. 287. Privileges of members of
    Parliament.

      The  privileges of members of Parliament, from small and
    obscure beginnings, have been advancing for centuries with a firm and
    never yielding pace. Claims seem to have been brought forward from time
    to time, and repeated, till some example of their admission enabled them
    to build law on that example. We can only, therefore, state the points
    of progression at which they now are. It is now acknowledged, 1st. That
    they are at all times exempted from question elsewhere, for anything
    said in their own House; that during the time of privilege, 2d. Neither
    a member himself, his, order H. of C. 1663, July 16, wife, nor his
    servants (familiares sui), for any matter of their own, may be, Elsynge,
    217; 1 Hats., 21; 1 Grey's Deb., 133, arrested on mesne process, in any
    civil suit: 3d. Nor be detained under execution, though levied before
    time of privilege: 4th. Nor impleaded, cited, or subpoenaed in any
    court: 5th. Nor summoned as a witness or juror: 6th. Nor may their lands
    or goods be distrained: 7th. Nor their persons assaulted, or characters
    traduced. And the period of time covered by privilege, before and after
    the session, with the practice of short prorogations under the
    conniv

      For a modern discussion of privileges of Members of Parliament, see
    Report of Joint Committee on Parliamentary Privilege of the House of
    Commons (H.C. 214-1, Mar. 30, 1999).

    [[Page 132]]

    for carrying into execution the
    powers given them,'' Const. U.S., Art. II, Sec. 8, they may provide by
    law the details which may be necessary for giving full effect to the
    enjoyment of this privilege. No such law being as yet made, it seems to
    stand at present on the following ground: 1. The act of arrest is void,
    ab initio. 2 Stra., 989. 2. The member arrested may be discharged on
    motion, 1 Bl., 166; 2 Stra., 990; or by habeas corpus under the Federal
    or State authority, as the case may be; or by a writ of privilege out of
    the chancery, 2 Stra., 989, in those States which have adopted that part
    of the laws of England. Orders of the House of Commons, 1550, February
    20. 3. The arrest being unlawful, is a trespass for which the officer
    and others concerned are liable to action or indictment in the ordinary
    courts of justice, as in other cases of unauthorized arrest. 4. The
    court before which the process is returnable is bound to act as in other
    cases of unauthorized proceeding, and liable, also, as in other similar
    cases, to have their proceedings stayed or corrected by the superior
    courts.

    Sec. 288. Privilege of Members of Congress under the
    Constitution.

      It  was probably from this view of the encroaching character
    of privilege that the framers of our Constitution, in their care to
    provide that the laws shall bind equally on all, and especially that
    those who make them shall not exempt themselves from their operation,
    have only privileged ``Senators and Representatives'' themselves from
    the single act of ``arrest in all cases except treason, felony, and
    breach of the peace, during their attendance at the session of their
    respective Houses, and in going to and returning from the same, and from
    being questioned in any other place for any speech or debate in either
    House.'' Const. U.S. Art I, Sec. 6. Under the general authority ``to
    make all laws necessary and proper

    [[Page 133]]

    stood.'' (1580,) 1 Hats., 99, 100.
    Nor is the law so strict in point of time as to require the party to set
    out immediately on his return, but allows him time to settle his private
    affairs, and to prepare for his journey; and does not even scan his road
    very nicely, nor forfeit his protection for a little deviation from that
    which is most direct; some necessity perhaps constraining him to it. 2
    Stra., 986, 987.

    Sec. 289. Privilege as to going and returning.

      The  time
    necessary for going to, and returning from, Congress, not being defined,
    it will, of course, be judged of in every particular case by those who
    will have to decide the case. While privilege was understood in England
    to extend, as it does here, only to exemption from arrest, eundo,
    morando, et redeundo, the House of Commons themselves decided that ``a
    convenient time was to be under

    Sec. 290. Privilege of Members as related to rights of
    courts to summon witnesses and jurors.

      This  privilege from arrest,
    privileges, of course, against all process the disobedience to which is
    punishable by an attachment of the person; as a subpoena ad
    respondendum, or testificandum, or a summons on a jury; and with reason,
    because a Member has superior duties to perform in another place. When a
    Representative is withdrawn from his seat by summons, the 40,000 people
    whom he represents lose their voice in debate and vote, as they do on
    his voluntary absence; when a Senator is withdrawn by summons, his State
    loses half its voice in debate and vote, as it does on his voluntary
    absence. The enormous disparity of evil admits no comparison.

    [[Page 134]]

    1951, p. 6084; June 22, 1951, p. 7001; Sept.
    18, 1951, p. 11571; Sept. 27, 1951, p. 12292; Mar. 5, 1953, p. 1658;
    Mar. 18, 1953, p. 2085; Mar. 11, 1954, p. 3102; July 19, 1954, p. 10904;
    Apr. 9, 1956, p. 5970; Apr. 10, 1956, p. 5991). The House, however, has
    declined to make a general rule permitting Members to waive their
    privilege, preferring that the Member in each case should apply for
    permission (III, 2660). Also in maintenance of its privilege the House
    has refused to permit the Clerk or other officers to produce in court,
    in obedience to a summons, an original paper from the files, but has
    given the court facilities for making copies (III, 2664, 2666; Apr. 15,
    1948, p. 4552; Apr. 29, 1948, pp. 5161, 5162; May 6, 1948, p. 5432; Jan.
    18, 1950, p. 565; Feb. 8, 1950, p. 1695; Feb. 13, 1950, p. 1765; Sept.
    22, 1950, p. 15636; Apr. 6, 1951, p. 3403; Apr. 12, 1951, p. 3800; Oct.
    20, 1951, p. 13777; Jan. 22, 1953, p. 498; May 25, 1953, p. 5523; Jan.
    28, 1954, p. 964; Feb. 25, 1954, p. 2281; July 1, 1955, p. 9818; Apr.
    12, 1956, p. 6258; Apr. 24, 1958, p. 7262; Apr. 29, 1958, p. 7636; Sept.
    16, 1974, p. 31123; Jan. 19, 1977, p. 1728), but on one occasion, in
    which the circumstances warranted such action, the Clerk was permitted
    to respond and take with him certified copies of certain documents
    described in the subpoena (H. Res. 601, Oct. 29, 1969, p. 32005); and on
    the rare occasions in which the House has permitted the production of an
    original paper from its files, it has made explicit provision for its
    return (H. Res. 1022, 1023, Jan. 16, 1968, p. 80; H. Res. 1429, July 27,
    1976, p. 24089). No officer or employee, except by authority of the
    House, should produce before any court a paper from the files of the
    House, nor furnish a copy of any paper except by authority of the House
    or a statute (III, 2663; VI, 587; Apr. 15, 1948, p. 4552; Apr. 30, 1948,
    pp. 5161, 5162; May 6, 1948, p. 5432; Jan. 18, 1950, p. 565; Feb. 8,
    1950, p. 1695; Feb. 13, 1950, p. 1765; Sept. 22, 1950, p. 15636; Apr. 6,
    1951, p. 3403; Apr. 12, 1951, p. 3800; Oct. 20, 1951, p. 13777; Mar. 10,
    1954, p. 3046; Feb. 7, 1955, p. 1215; May 7, 1956, p. 7588; Dec. 18,
    1974, p. 40925). In the 98th Congress, the House adopted a resolution
    denying compliance with a subpoena issued by a Federal Court for the
    production of records in the possession of the Clerk (documents of a
    select committee from the prior Congress), where the Speaker and joint
    leadership had instructed the Clerk in the previous Congress not to
    produce such records and where the Court refused to stay the subpoena or
    to allow the select committee to intervene to protect its interest; the
    resolution directed the Counsel to the Clerk to assert the rights and
    privileges of the House and to take all steps necessary to protect the
    rights of the House (Apr. 28, 1983, p. 10417). On appeal from a
    subsequent district court judgment finding the Clerk in contempt, the
    Court of Appeals reversed on the ground that a subpoena to depose a
    nonparty witness under the Federal Rules of Civil Procedure may only be
    served in the district (of Maryland) where it was issued. In re Guthrie,
    733 F.2d 634 (4th Cir. 1984). If an official of both Houses of Congress
    is subpoenaed in his official capacity, the concurrence of both Houses
    by concurrent resolu

    [[Page 135]]

    tion is required to permit compliance (H. Con.
    Res. 342, July 16, 1975, pp. 23144-46).

    Sec. 291a. Attitude of the House as to demands of the
    courts.

      The  House has decided that the summons of a court to Members to
    attend and testify constituted a breach of privilege, and directed them
    to disregard the mandate (III, 2661); but in other cases wherein Members
    informed the House that they had been summoned before the District Court
    of the United States for the District of Columbia or other courts, the
    House authorized them to respond (III, 2662; Feb. 23, 1948, p. 1557;
    Mar. 5, 1948, p. 2224; Apr. 8, 1948, p. 4264; Apr. 12, 1948, p. 4347;
    Apr. 14, 1948, p. 4461; Apr. 15, 1948, p. 4529; Apr. 28, 1948, p. 5009;
    May 6, 1948, pp. 5433, 5451; Feb. 2, 1950, p. 1399; Apr. 4, 1951, p.
    3320; Apr. 9, 1951, p. 3525; Apr. 12, 1951, pp. 3751, 3752; Apr. 13,
    1951, p. 3915; June 4,

      A resolution routinely adopted up to the 95th Congress provided that
    when the House had recessed or adjourned Members, officers, and
    employees were authorized to appear in response to subpoenas duces
    tecum, but prohibited the production of official papers in response
    thereto; the resolution also provided that when a court found that
    official papers, other than executive session material, were relevant,
    the court could obtain copies thereof through the Clerk of the House
    (see, e.g., H. Res. 12, Jan. 3, 1973, p. 30). In the 95th Congress, the
    House for the first time by resolution permitted this same type of
    general response whether or not the House is in session or in
    adjournment if a court has found that specific documents in possession
    of the House are material and relevant to judicial proceedings. The
    House reserved to itself the right to revoke this general permission in
    any specific case in which the House desires to make a different
    response (H. Res. 10, Jan. 4, 1977, p. 73; H. Res. 10, Jan. 15, 1979, p.
    19). The permission did not apply to executive session material, such as
    a deposition of a witness in executive session of a committee, which
    could be released only by a separate resolution passed by the House (H.
    Res. 296, June 4, 1979, p. 13180). H. Res. 10 of the 96th Congress was
    clarified and revised later in that Congress by H. Res. 722 (Sept. 17,
    1980, pp. 25777-90) and became the basis for rule VIII, added as rule L
    in the 97th Congress (H. Res. 5, Jan. 5, 1981, pp. 98-113, see Sec. 697,
    infra).

    [[Page 136]]

    necessary and proper for executing its constitutional
    powers, authorizing the employment of special counsel for such purpose,
    and providing for the payment from the contingent fund of expenses to
    employ such counsel (H. Res. 884, Nov. 2, 1977, p. 36661). The House has
    authorized the Speaker to take any steps considered necessary, including
    intervention as a party or by submission of briefs amicus curiae, in
    order to protect the interests of the House before the court (H. Res.
    49, Jan. 29, 1981, p. 1304). The House also has on occasion adopted
    privileged resolutions, reported from the Committee on Rules,
    authorizing standing or select committees to make applications to courts
    in connection with their investigations (H. Res. 252, Feb. 9, 1977, pp.
    3966-75; H. Res. 760, Sept. 28, 1977, pp. 31329-36; H. Res. 67, Mar. 4,
    1981, pp. 3529-33), including an unreported resolution (adopted by
    special rule) regarding initiating or intervening in judicial
    enforcement of committee subpoenas (Feb. 14, 2008, p. _), which
    authority was continued and expanded in the next Congress (sec. 4(f), H.
    Res. 5, Jan. 6, 2009, p. _). For a discussion of the Office of General
    Counsel, which was established to provide legal assistance and
    representation to the House without regard to political affiliation and
    in consultation with the Bipartisan Legal Advisory Group, see clause 8
    of rule II, Sec. 670, infra.

    Sec. 291b. Judicial appearances on behalf of
    House.

      Although  the statutes provide that the Department of Justice may
    represent any officer of the House or Senate in the event of judicial
    proceedings against such officer in relation to the performance of
    official duties (see 2 U.S.C. 118), and that the Department of Justice
    shall generally represent the interests of the United States in Court
    (28 U.S.C. 517), the House has on occasion authorized special
    appearances on its own behalf by special counsel when the prerogatives
    or powers of the House have been questioned in the courts. The House has
    adopted privileged resolutions authorizing the chair of a subcommittee
    to intervene in any judicial proceeding concerning subpoenas duces tecum
    issued by that committee, authorizing the appointment of a special
    counsel to carry out the purposes of such a resolution, and providing
    for the payment from the contingent fund (now referred to as
    ``applicable accounts of the House described in clause 1(k)(1) of rule
    X'') of expenses to employ such special counsel (H. Res. 1420, Aug. 26,
    1976, p. 1858; H. Res. 334, May 9, 1977, pp. 13949-52), authorizing the
    Sergeant at Arms to employ a special counsel to represent him in a
    pending action in Federal court in which he was named as a defendant,
    and providing for the payment from the contingent fund of expenses to
    employ such counsel (H. Res. 1497, Sept. 2, 1976, p. 28937), and
    authorizing the chair of the Committee on House Administration to
    intervene as a party in a pending civil action in the U.S. Court of
    Claims, to defend on behalf of the House the constitutional authority to
    make laws

    Sec. 292. Attitude of one House as to demands of the
    other for attendance or papers.

      When  either House desires the attendance of
    a Member of the other to give evidence it is the practice to ask the
    other House that the Member have leave to attend, and the use of a
    subpoena is of doubtful propriety (III, 1794). However, in one case the
    Senate did not consider that its privilege forbade the House to summon
    one of its officers as a witness (III, 1798). But when the Secretary of
    the Senate was subpoenaed to appear before a committee of the House with
    certain papers from the files of the Senate, the Senate discussed the
    question of privilege before empowering him to attend (III, 2665). For
    discussion of the means by which one House may prefer a complaint
    against a Member or officer of the other, see Sec. 373, infra.

    [[Page 137]]

    detained in confinement a fortnight and Randall three weeks, and
    was reprimanded by the Speaker. In March, 1796, the House voted a
    challenge given to a Member of their House to be a breach of the
    privileges of the House; but satisfactory apologies and acknowledgments
    being made, no further proceeding was had. * * *

    Sec. 293. Power of the House to punish for contempts.

      So  far
    there will probably be no difference of opinion as to the privileges of
    the two Houses of Congress; but in the following cases it is otherwise.
    In December, 1795, the House of Representatives committed two persons of
    the name of Randall and Whitney for attempting to corrupt the integrity
    of certain Members, which they considered as a contempt and breach of
    the privileges of the House; and the facts being proved, Whitney was

    [[Page 138]]

    Sec. 294. Decision of the court in Anderson's
    case.

      The  cases of Randall and Whitney (II, 1599-1603) were followed in
    1818 by the case of John Anderson, a citizen, who for attempted bribery
    of a Member was arrested, tried, and censured by the House (II, 1606).
    Anderson appealed to the courts and this procedure finally resulted in a
    discussion by the Supreme Court of the United States of the right of the
    House to punish for contempts, and a decision that the House by
    implication has the power to punish, because ``public functionaries must
    be left at liberty to exercise the powers which the people have
    intrusted to them,'' and ``the interests and dignity of those who
    created them require the exertion of the powers indispensable to the
    attainment of the ends of their creation. Nor is a casual conflict with
    the rights of particular individuals any reason to be urged against the
    exercise of such powers'' (II, 1607; Anderson v. Dunn, 19 U.S. (6
    Wheat.) 204, 226, 227 (1821)). In 1828 an assault on the President's
    secretary in the Capitol gave rise to a question of privilege that
    involved a discussion of the inherent power of the House to punish for
    contempt (II, 1615). Again in 1832, when the House censured Samuel
    Houston, a citizen, for assault on a Member for words spoken in debate
    (II, 1616), there was a discussion by the House of the doctrine of
    inherent and implied power as opposed to the other doctrine that the
    House might exercise no authority not expressly conferred on it by the
    Constitution or the laws of the land (II, 1619). In 1865 the House
    arrested and censured a citizen for attempted intimidation and assault
    on a member (II, 1625); in 1866, a citizen who had assaulted the clerk
    of a committee of the House in the Capitol was arrested by order of the
    House, but because there was not time to punish in the few remaining
    days of the session, the Sergeant-at-Arms was directed to turn the
    prisoner over to the civil authorities of the District of Columbia (II,
    1629); and in 1870 Woods, who had assaulted a Member on his way to the
    House, was arrested on warrant of the Speaker, arraigned at the bar, and
    imprisoned for a term extending beyond the adjournment of the session,
    although not beyond the term of the existing House (II, 1626-1628).

    Sec. 295. Views of the court in Kilbourn's
    case.

      In  1876 the arrest and imprisonment by the House of Hallet
    Kilbourn, a contumacious witness, resulted in a decision by the Supreme
    Court of the United States that the House had no general power to punish
    for contempt, as in a case wherein it was proposing to coerce a witness
    in an inquiry not within the constitutional authority of the House. The
    Court also discussed the doctrine of inherent power to punish, saying in
    conclusion, ``We are of opinion that the right of the Houses of
    Representatives to punish the citizen for a contempt of its authority or
    a breach of its privileges can derive no support from the precedents and
    practices of the two Houses of the English Parliament, nor from the
    adjudged cases in which the English courts have upheld these practices.
    Nor, taking what has fallen from the English judges, and especially the
    later cases on which we have just commented, is much aid given to the
    doctrine, that this power exists as one necessary to enable either House
    of Congress to exercise successfully their function of legislation. This
    latter proposition is one that we do not propose to decide in the
    present case, because we are able to decide it without passing upon the
    existence or nonexistence of such a power in aid of the legislative
    function'' (Kilbourn v. Thompson, 103 U.S. 168, 189 (1880); II, 1611).
    In 1894, in the case of Chapman, another contumacious witness, the
    Supreme Court affirmed the undoubted right of either House of Congress
    to punish for contempt in cases to which its power properly extends
    under the expressed terms of the Constitution (II, 1614; In Re Chapman,
    166 U.S. 661 (1897)). The nature of the punishment that the House may
    inflict was discussed by the Court in Anderson's case (II, 1607;
    Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)).

    [[Page 139]]

    the House in violating its
    privileges, honor, and dignity. He applied for habeas corpus.

    Sec. 296. Decision of the court in Marshall v. Gordon.

      In the case of Marshall v. Gordon, 243 U.S. 521 (1917), the Court
    addressed the following situation:

    Appellant, while United States Attorney for the Southern District of New
    York, conducted a grand jury investigation that led to the indictment of
    a Member of the House. Acting on charges of misfeasance and nonfeasance
    made by the Member against appellant in part before the indictment and
    renewed with additions afterward, the House by resolution directed its
    Judiciary Committee to make inquiry and report concerning appellant's
    liability to impeachment. Such inquiry being in progress through a
    subcommittee, appellant addressed to the subcommittee's chair, and gave
    to the press, a letter, charging the subcommittee with an endeavor to
    probe into and frustrate the action of the grand jury, and couched in
    terms calculated to arouse the indignation of the members of that
    committee and those of the House generally. Thereafter, appellant was
    arrested in New York by the Sergeant-at-Arms pursuant to a resolution of
    the House whereby the letter was characterized as defamatory and
    insulting and as tending to bring that body into public contempt and
    ridicule, and whereby appellant in writing and publishing such letter
    was adjudged to be in contempt of

      The court held that the proceedings concerning which the alleged
    contempt was committed were not impeachment proceedings; that, whether
    they were impeachment proceedings or not, the House was without power by
    its own action, as distinct from such action as might be taken under
    criminal laws, to arrest or punish for such acts as were committed by
    appellant.

      No express power to punish for contempt was granted to the House save
    the power to deal with contempts committed by its own Members (art. I,
    sec. 5). The possession by Congress of the commingled legislative and
    judicial authority to punish for contempts that was exerted by the House
    of Commons is at variance with the view and tendency existing in this
    country when the Constitution was adopted, as evidenced by the manner in
    which the subject was treated in many State constitutions, beginning at
    or about that time and continuing thereafter. Such commingling of powers
    would be destructive of the basic constitutional distinction between
    legislative, executive, and judicial power, and repugnant to limitations
    that the Constitution fixes expressly; hence there is no warrant
    whatever for implying such a dual power in aid of other powers expressly
    granted to Congress. The House has implied power to deal directly with
    contempt so far as is necessary to preserve and exercise the legislative
    authority expressly granted. Being, however, a power of self-
    preservation, a means and not an end, the power does not extend to
    infliction of punishment, as such; it is a power to prevent acts that in
    and of themselves inherently prevent or obstruct the discharge of
    legislative duty and to compel the doing of those things that are
    essential to the performance of the legislative functions. As pointed
    out in Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821), this implied
    power in its exercise is limited to imprisonment during the session of
    the body affected by the contempt.

      The authority does not cease when the act complained of has been
    committed, but includes the right to determine in the use of legitimate
    and fair discretion how far from the nature and character of the act
    there is necessity for repression to prevent immediate recurrence, i.e.,
    the continued existence of the interference or obstruction to the
    exercise of legislative power. In such case, unless there be manifest an
    absolute disregard of discretion, and a mere exertion of arbitrary power
    coming within the reach of constitutional limitations, the exercise of
    the authority is not subject to judicial interference. The power is the
    same in quantity and quality whether exerted on behalf of the
    impeachment powers or of the others to which it is ancillary. The
    legislative power to provide by criminal laws for the prosecution and
    punishment of wrongful acts is not here involved.

    [[Page 140]]

    United States Attorney for possible indictment under
    the criminal contempt statute (2 U.S.C. 192) or exercise its inherent
    power to commit for contempt by detaining the recalcitrant witness in
    the custody of the Sergeant-at-Arms.
      The Senate may invoke its civil contempt statute (2 U.S.C. 288d) to
    direct the Senate legal counsel to bring an action in Federal court to
    compel a witness to comply with the subpoena of a committee of the
    Senate. The House, in contrast, may either certify such a witness to the
    appropriate

      (See also McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v.
    United States, 279 U.S. 263 (1929); Jurney v. MacCracken, 294 U.S. 125
    (1935); Quinn v. United States, 349 U.S. 155 (1955); Groppi v. Leslie,
    404 U.S. 496 (1972).)

    [[Page 141]]

    must therefore have a power to punish these disturbers
    of our peace and proceedings. * * *

    Sec. 297. Jefferson's statement of arguments for
    inherent power to punish for contempt.

      * * *  The editor of the Aurora
    having, in his paper of February 19, 1800, inserted some paragraphs
    defamatory of the Senate, and failed in his appearance, he was ordered
    to be committed. In debating the legality of this order, it was
    insisted, in support of it, that every man, by the law of nature, and
    every body of men, possesses the right of self-defense; that all public
    functionaries are essentially invested with the powers of self-
    preservation; that they have an inherent right to do all acts necessary
    to keep themselves in a condition to discharge the trusts confided to
    them; that whenever authorities are given, the means of carrying them
    into execution are given by necessary implication; that thus we see the
    British Parliament exercise the right of punishing contempts; all the
    State Legislatures exercise the same power, and every court does the
    same; that, if we have it not, we sit at the mercy of every intruder who
    may enter our doors or gallery, and, by noise and tumult, render
    proceeding in business impracticable; that if our tranquillity is to be
    perpetually disturbed by newspaper defamation, it will not be possible
    to exercise our functions with the requisite coolness and deliberation;
    and that we

    [[Page 142]]

    exist; and does not exist, from their own neglect; that, in the
    meantime, however, they are not unprotected, the ordinary magistrates
    and courts of law being open and competent to punish all unjustifiable
    disturbances or defamations, and even their own sergeant, who may
    appoint deputies ad libitum to aid him 3 Grey, 59, 147, 255,  is equal
    to small disturbances; that in requiring a previous law, the
    Constitution had regard to the inviolability of the citizen, as well as
    of the Member; as, should one House, in the regular form of a bill, aim
    at too broad privileges, it may be checked by the other, and both by the
    President; and also as, the law being promulgated, the citizen will know
    how to avoid offense. But if one branch may assume its own privileges
    without control, if it may do it on the spur of the occasion, conceal
    the law in its own breast, and, after the fact committed, make its
    sentence both the law and the judgment on that fact; if the offense is
    to be kept undefined and to be declared only ex re nata, and according
    to the passions of the moment, and there be no limitation either in the
    manner or measure of the punishment, the condition of the citizen will
    be perilous indeed. * * *

    Sec. 298. Statement of arguments against the inherent
    power to punish for contempts.

      * * *  To this it was answered, that the
    Parliament and courts of England have cognizance of contempts by the
    express provisions of their law; that the State Legislatures have equal
    authority because their powers are plenary; they represent their
    constituents completely, and possess all their powers, except such as
    their constitutions have expressly denied them; that the courts of the
    several States have the same powers by the laws of their States, and
    those of the Federal Government by the same State laws adopted in each
    State, by a law of Congress; that none of these bodies, therefore,
    derive those powers from natural or necessary right, but from express
    law; that Congress have no such natural or necessary power, nor any
    powers but such as are given them by the Constitution; that that has
    given them, directly, exemption from personal arrest, exemption from
    question elsewhere for what is said in their House, and power over their
    own members and proceedings; for these no further law is necessary, the
    Constitution being the law; that, moreover, by that article of the
    Constitution which authorizes them ``to make all laws necessary and
    proper for carrying into execution the powers vested by the Constitution
    in them,'' they may provide by law for an undisturbed exercise of their
    functions, e.g., for the punishment of contempts, of affrays or tumult
    in their presence, &c.; but, till the law be made, it does not

    [[Page 143]]

    apply to the law, is open to question and
    consideration, as are all new laws. Perhaps Congress in the mean time,
    in their care for the safety of the citizen, as well as that for their
    own protection, may declare by law what is necessary and proper to
    enable them to carry into execution the powers vested in them, and
    thereby hang up a rule for the inspection of all, which may direct the
    conduct of the citizen, and at the same time test the judgments they
    shall themselves pronounce in their own case.

    Sec. 299. Jefferson's suggestion that a law might define
    procedure in cases of contempt.

      * * *  Which of these doctrines is to
    prevail, time will decide. Where there is no fixed law, the judgment on
    any particular case is the law of that single case only, and dies with
    it. When a new and even a similar case arises, the judgment which is to
    make and at the same time

      In 1837 the House declined to proceed with a bill ``defining the
    offense of a contempt of this House, and to provide for the punishment
    thereof'' (II, 1598). Congress has, however, prescribed that a witness
    summoned to appear before a committee of either House who does not
    respond or who refuses to answer a question pertinent to the subject of
    the inquiry shall be deemed guilty of a misdemeanor (2 U.S.C. 192).

      A resolution directing the Speaker to certify to the U.S. Attorney the
    refusal of a witness to respond to a subpoena issued by a House
    committee involves the privileges of the House and may be offered from
    the floor as privileged if offered by direction of the committee
    reporting the resolution (e.g., Oct. 27, 2000, p. 25200). A committee
    report to accompany such resolution may therefore be presented to the
    House without regard to the three-day availability requirement for other
    reports (see clause 4 of rule XIII; July 13, 1971, p. 24720). A
    resolution with two resolving clauses separately directing the
    certification of the contemptuous conduct of two individuals is subject
    to a demand for a division of the question as to each individual
    (contempt proceedings against Ralph and Joseph Bernstein, Feb. 27, 1986,
    p. 3061); as is a resolution with one resolving clause certifying
    contemptuous conduct of several individuals (Oct. 27, 2000, p. 25200;
    contrast, Deschler-Brown, ch. 30, Sec. 49.1). A contempt resolution may
    be withdrawn as a matter of right before action thereon (Oct. 27, 2000,
    p. 25200).

    [[Page 144]]

    been entered into between
    the committee and the executive branch for access by the committee to
    the documents that Anne Gorsuch had failed to submit and that were the
    subject of the contempt citation (where the contempt had not yet been
    prosecuted) (Aug. 3, 1983, p. 22692). In other cases in which compliance
    had subsequently been attained in the same Congress, the House has
    adopted privileged resolutions certifying the facts to the United States
    Attorney to the end that contempt proceedings be discontinued (see
    Deschler, ch. 15, Sec. 21). In the 98th Congress, the House adopted a
    privileged resolution directing the Speaker to certify to the United
    States Attorney the refusal of a former official of the executive branch
    to obey a subpoena to testify before a subcommittee (H. Res. 200, May
    18, 1983, p. 12720). In the 106th Congress the House considered a
    resolution directing the Speaker to certify to the United States
    Attorney the refusal of three individuals to obey a subpoena duces tecum
    and to answer certain questions while appearing under subpoena before a
    subcommittee, which resolution was withdrawn before action thereon (H.
    Res. 657, Oct. 27, 2000, p. 25217). In the 110th Congress, the House
    adopted (by special rule) a resolution directing the Speaker to certify
    to the United States Attorney the refusal of White House Chief of Staff
    to produce documents to a committee, and former White House Counsel to
    appear, testify, and produce documents to a subcommittee, each as
    directed by subpoena (Feb. 14, 2008, p. _).
      In the 97th Congress, the House adopted a resolution directing the
    Speaker to certify to the United States Attorney the failure of an
    official of the executive branch (Anne M. Gorsuch, Administrator,
    Environmental Protection Agency) to submit executive branch documents to
    a House subcommittee pursuant to a subcommittee subpoena. This was the
    first occasion on which the House cited an executive official for
    contempt of Congress (Dec. 16, 1982, p. 31754). In the following
    Congress, the House adopted (as a question of privilege) a resolution
    reported from the same committee certifying to the United States
    Attorney the fact that an agreement had

      A resolution laying on the table a message from the President
    containing certain averments inveighing disrespect toward Members of
    Congress was considered as a question of the privileges of the House as
    a breach of privilege in a formal communication to the House (VI, 330).-

    Sec. 300. Status of Memberelect as to privilege,
    oath, committee service, etc.

      Privilege  from arrest takes place by force of the
    election; and before a return be made a Member elected may be named of a
    committee, and is to every extent a Member except that he cannot vote
    until he is sworn, Memor., 107, 108. D'Ewes, 642, col. 2; 643, col. 1.
    Pet. Miscel. Parl., 119. Lex. Parl., c. 23.2 Hats., 22, 62.

      The Constitution of the United States limits the broad Parliamentary
    privilege to the time of attendance on sessions of Congress, and of
    going to and returning therefrom. In a case wherein a Member was
    imprisoned during a recess of Congress, he remained in confinement until
    the House, on assembling, liberated him (III, 2676).

    [[Page 145]]

    effective only when sworn (e.g., H. Res. 26, 27; Jan. 6, 1983, p.
    132). In one case, when a Member did not appear to take the oath, the
    Speaker with the consent of the House appointed another Member to the
    committee in his place (IV, 4484). The status of a Member-elect under
    the Constitution undoubtedly differs greatly from the status of a
    Member-elect under the law of Parliament. In various inquiries by
    committees of the House this question has been examined, with the
    conclusions that a Member-elect becomes a Member from the very beginning
    of the term to which elected (I, 500), that he is as much an officer of
    the Government before taking the oath as afterwards (I, 185), and that
    his status is distinguished from that of a Member who has qualified (I,
    183, 184). Members-elect may resign or decline before taking the oath
    (II, 1230-1233, 1235; Jan. 6, 1999, p. 42); they have been excluded (I,
    449, 464, 474, 550, 551; VI, 56; Mar. 1, 1967, pp. 4997-5038), and in
    one case a Member-elect was expelled (I, 476; II, 1262). The names of
    Members who have not been sworn are not entered on the roll from which
    the yeas and nays are called for entry on the Journal (V, 6048; VIII,
    3122), nor are such Members-elect permitted to vote or introduce bills.

      It is recognized in the practice of the House that a Member may be
    named to a committee before being sworn, and in some cases Members have
    not taken the oath until long afterwards (IV, 4483), although in the
    modern practice Members-elect have been elected to standing committees

    Sec. 301. Relations of Members and others to
    privilege.

      Every  man must, at his peril, take notice who are members of
    either House returned of record. Lex. Parl., 23; 4 Inst., 24.

      On Complaint of a breach of privilege, the party may either be
    summoned, or sent for in custody of the sergeant. 1 Grey, 88, 95.

      The privilege of a Member is the privilege of the House. If the Member
    waive it without leave, it is a ground for punishing him, but cannot in
    effect waive the privilege of the House. 3 Grey, 140, 222.

      Although the privilege of Members of the House is limited by the
    Constitution, these provisions of the Parliamentary law are applicable,
    and persons who have attempted to bribe Members (II, 1599, 1606),
    assault them for words spoken in debate (II, 1617, 1625) or interfere
    with them while on the way to attend the sessions of the House (II,
    1626), have been arrested by order of the House by the Sergeant-at-Arms,
    ``Wherever to be found.'' The House has declined to make a general rule
    to permit Members to waive their privilege in certain cases, preferring
    to give or refuse permission in each individual case (III, 2660-2662).

    [[Page 146]]

    to waive the protection of the Speech or Debate Clause.
    The Court found first, that the Member's conduct in testifying before a
    grand jury and voluntarily producing documentary evidence of legislative
    acts protected by the Clause did not waive its protection. Assuming,
    without deciding, that a Member could waive the Clause's protection
    against being prosecuted for a legislative act, the Court said that such
    a waiver could only be found after an explicit and unequivocal
    renunciation of its immunity, which was absent in this case. Second,
    passage of the official bribery statute, 18 U.S.C. 201, did not amount
    to an institutional waiver of the Speech or Debate Clause for individual
    Members. Again assuming without deciding whether Congress could
    constitutionally waive the Clause for individual Members, such a waiver
    could be shown only by an explicit and unequivocal expression of
    legislative intent, and there was no evidence of that in the legislative
    history of the statute. The Speech or Debate clause is not an impediment
    to the enforcement within the House of the rule prohibiting
    personalities in debate (clause 1 of rule XVII, May 25, 1995, p. 14436).

      In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court
    discussed the ability of either an individual Member or the entire
    Congress

    Sec. 302. Parliamentary law as to questioning a Member in
    another place for speech or debate.

      For  any speech or debate in either
    House, they shall not be questioned in any other place. Const. U.S., I,
    6; S. P. protest of the Commons to James I, 1621; 2 Rapin, No. 54, pp.
    211, 212. But this is restrained to things done in the House in a
    parliamentary course. 1 Rush, 663. For he is not to have privilege
    contra morem parliamentarium, to exceed the bounds and limits of his
    place and duty. Com. p.

    Sec. 303. Relation of the courts to parliamentary
    privilege.

      If  an offense be committed by a member in the House, of which
    the House has cognizance, it is an infringement of their right for any
    person or court to take notice of it till the House has punished the
    offender or referred him to a due course. Lex. Parl., 63.

    [[Page 147]]

    is subject to
    the censure of the House; and offenses of this kind have been severely
    punished by calling the person to the bar to make submission, committing
    him to the tower, expelling the House, &c. Scob., 72; L. Parl., c. 22.
    <>   It is a breach of order for the Speaker to refuse to
    put a question which is in order. 1 Hats., 175-6; 5 Grey, 133.

      Privilege is in the power of the House, and is a restraint to the
    proceeding of inferior courts, but not of the House itself. 2 Nalson,
    450; 2 Grey, 399. For whatever is spoken in the House

      Where the Clerk, presiding during organization of the House, declined
    to put a question, a Member put the question from the floor (I, 67).

    [[Page 148]]

    Sec. 305. Parliamentary law of privilege as related to
    treason, felony, etc.

      And  even in cases of treason, felony, and breach of
    the peace, to which privilege does not extend as to substance, yet in
    Parliament a member is privileged as to the mode of proceeding. The case
    is first to be laid before the House, that it may judge of the fact and
    of the ground of the accusation, and how far forth the manner of the
    trial may concern their privilege; otherwise it would be in the power of
    other branches of the government, and even of every private man, under
    pretenses of treason, &c., to take any man from his service in the
    House, and so, as many, one after another, as would make the House what
    he pleaseth. Dec'l of the Com. on the King's declaring Sir John Hotham a
    traitor. 4 Rushw., 586. So, when a member stood indicted for felony, it
    was adjudged that he ought to remain of the House till conviction; for
    it may be any man's case, who is guiltless, to be accused and indicted
    of felony, or the like crime. 23 El., 1580; D'Ewes, 283, col. 1; Lex.
    Parl., 133.

      Where Members of the House have been arrested by the State
    authorities the cases have not been laid first before the House; but
    when the House has learned of the proceedings, it has investigated to
    ascertain if the crime charged was actually within the exceptions of the
    Constitution (III, 2673), and in one case in which it found a Member
    imprisoned for an offense not within the exceptions it released him by
    the hands of its own officer (III, 2676).

    Sec. 306. Practice as to Members indicted or
    convicted.

      The  House has not usually taken action in the infrequent
    instances in which Members have been indicted for felony, and in one or
    two instances Members under indictment or pending appeal on conviction
    have been appointed to committees  (IV,  4479).  The  House  has,
    however, adopted a resolution expressing the sense of the House that
    Members convicted of certain felonies should refrain from participation
    in committee business and from voting in the House until the presumption
    of innocence is reinstated or until re-elected to the House (see H. Res.
    128, Nov. 14, 1973, p. 36944), and that principle has been incorporated
    in the Code of Official Conduct (clause 10 of rule XXIII). A Senator
    after indictment was omitted from committees at his own request (IV,
    4479), and a Member who had been convicted in one case did not appear in
    the House during the Congress (IV, 4484, footnote). A Senator in one
    case withdrew from the Senate pending his trial (II, 1278). After
    conviction but before the Senator's resignation, and while an appeal for
    rehearing was pending, the Senate continued its investigation (II,
    1282).

    Sec. 307. Parliamentary law as to arrest of a
    Member.

      When  it is found necessary for the public service to put a Member
    under arrest, or when, on any public inquiry, matter comes out which may
    lead to affect the person of a member, it is the practice immediately to
    acquaint the House, that they may know the reasons for such a
    proceeding, and take such steps as they think proper. 2 Hats., 259. Of
    which see many examples. Ib., 256, 257, 258. But the communication is
    subsequent to the arrest. 1 Blackst., 167.

    [[Page 149]]

    matter depending before them, so as to preclude, or even
    influence, that freedom of debate which is essential to a free council.
    They are, therefore, not to take notice of any bills or other matters
    depending, or of votes that have been given, or of speeches which have
    been held, by the members of either of the other branches of the
    legislature, until the same have been communicated to them in the usual
    parliamentary manner. 2 Hats., 252; 4 Inst., 15; Seld. Jud., 53.

    Sec. 308. A breach of privilege for one House to encroach
    or interfere as to the other.

      It  is highly expedient, says Hatsel, for
    the due preservation of the privileges of the separate branches of the
    legislature, that neither should encroach on the other, or interfere in
    any

    Sec. 309. Relations of the Sovereign to the Parliament
    and its Members.

      Thus  the King's taking notice of the bill for suppressing
    soldiers, depending before the House; his proposing a provisional clause
    for a bill before it was presented to him by the two Houses; his
    expressing displeasure against some persons for matters moved in
    Parliament during the debate and preparation of a bill, were breaches of
    privilege, 2 Nalson, 743; and in 1783, December 17, it was declared a
    breach of fundamental privileges, &c., to report any opinion or
    pretended opinion of the King on any bill or proceeding depending in
    either House of Parliament, with a view to influence the votes of the
    members, 2 Hats., 251, 6.
    * * * * *