    [Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 119th Congress]
    [119th Congress]
    [House Document 118-187]
    [Jeffersons Manual of ParliamentaryPractice]
    [Pages 135-156]
    [From the U.S. Government Publishing Office, www.gpo.gov]

                               sec. iii--privilege

    [[Page 136]]

    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
    connivance of the Crown, amounts in fact to a perpetual protection
    against the course of justice. In

      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 137]]

    vide 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 for carrying into execution the
    powers given them,'' Const. U.S., Art. II, Sec. 8, they may pro-

    [[Page 138]]

    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 understood.'' (1580) 1 Hats., 99, 100. Nor is
    the law so strict in point of time as to require the party to

    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 139]]

    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 two other occasions, in
    response to a request from the Department of Justice, to provide a copy
    of the audio backup file of a committee deposition made by the Official
    Reporters of Debate to the prosecuting attorney for use in a criminal
    proceeding (Precedents (Wickham), ch. 6, Sec. 26.7; Sept. 12, 2019, p.
    _); 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; Precedents (Wickham), ch. 6, Sec. 27.3). 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 (Precedents
    (Wickham), ch. 6, Sec. 26.4). 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,

    [[Page 140]]

    the concurrence of both Houses by concurrent resolution is required to
    permit compliance (Precedents (Wickham), ch. 6, Sec. 26.8). The House
    has authorized a former committee employee to provide testimony in a
    criminal proceeding, such authorization having been provided by the
    committee in the previous two Congresses (sec. 3(f)(3), H. Res. 5, Jan.
    6, 2015, p. 36).

    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, 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,

      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 were prohibited from producing 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 141]]

    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 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 to protect the interests of the
    House before the court (H. Res. 49, Jan. 29, 1981, p. 1304) or to submit
    briefs amicus curiae (H. Res. 639, Mar. 17, 2016, pp. 3369, 3370 (see
    Apr. 18, 2016, p. 4475 for notification to the House of the filing of a
    brief pursuant to this authorization)). The House has authorized the
    Speaker to initiate or intervene in civil actions regarding the failure
    of the President or any other employee of the executive branch to
    implement a given law and authorized the Office of General Counsel to
    represent the House in such matters and to employ outside counsel
    (Precedents (Wickham), ch. 6, Sec. 19.3), which authority was continued
    in the next Congress (sec. 3(f)(2), H. Res. 5, Jan. 6, 2015, p. 36). The
    House has also authorized the Speaker to intervene in an existing case
    and appellate proceedings arising therefrom, and to intervene or appear
    in any other similar case in order to defend a particular law, and has
    authorized the Office of General Counsel to represent the House in such
    matters and to employ outside counsel (sec. 103(n), H. Res. 6, Jan. 3,
    2019, p. _; title III, H. Res. 6, Jan. 9, 2019, p. _). The House 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 regarding judicial enforcement
    of committee subpoenas (H. Res. 706, June 28, 2012, p. 10512, continued
    in the next two Congresses by sec. 4(a)(2), H. Res. 5, Jan. 3, 2013, p.
    27 and sec. 3(f)(1), H. Res. 5, Jan. 6, 2015, p. 36). In the 116th and
    118th Congresses the House adopted a resolution reported by the
    Committee on Rules authorizing a standing committee to intervene in or
    initiate judicial proceedings with respect to several specified
    investigations and reaffirming the authority of committees to initiate
    or intervene in judicial proceedings with respect to any subpoena issued
    by such committee if authorized to do so by the Bipartisan Legal
    Advisory Group pursuant to clause 8(b) of rule II (H. Res. 430, June 11,
    2019, p. _). The House has also adopted (by special rule) an unreported
    resolution on the same topic (H. Res. 980, Feb. 14, 2008, pp. 2190,
    2191, continued and expanded in the next Congress by sec. 4(f), H. Res.
    5, Jan. 6, 2009, p. 10; H. Res. 917, Dec. 13, 2023, p. _), and in the
    116th Congress the House adopted (by special rule) an unreported
    resolution ratifying and reaffirming current and future investigations
    and subpoenas issued by committees with respect to certain individuals
    and subject matters (H. Res. 507, July 24, 2019, p. _). In the 115th
    Congress, the House enabled continuing litigation au-

    [[Page 142]]

    thority by adopting clause 8(c) of rule II (sec. 2(h), H. Res. 5, Jan.
    3, 2017, p. 37). 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. Sec. 670, 670a, 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. 5503), 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. 27858; 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

    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 143]]

    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
    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. 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).

    [[Page 144]]

    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, 1166 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)).

    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

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

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

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

      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.

    [[Page 145]]

    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.
      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

      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.

      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 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.

      (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 146]]

    mitted. 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 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 com-

    [[Page 147]]

    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 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

    [[Page 148]]

    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

    [[Page 149]]

    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 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.

      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 United States
    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 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). The Speaker
    certifies a contempt case to the United States Attorney (2 U.S.C. 194)
    and informs the House thereof (e.g., Deschler, ch. 15, Sec. 22.3; June
    29, 2012, p. 10769; Precedents (Wickham), ch. 6, Sec. 2.1).

    [[Page 150]]

    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 (H. Res. 979, Feb. 14, 2008, pp. 2190, 2191). In
    the 112th Congress, the House adopted a resolution directing the Speaker
    to certify to the United States Attorney the refusal of the Attorney
    General to produce documents to a committee as directed by subpoena (H.
    Res. 711, June 28, 2012, p. 10514). In the 113th Congress, the House
    adopted a resolution directing the Speaker to certify to the United
    States Attorney the refusal of the former Director of Exempt
    Organizations at the Internal Revenue Service to produce documents to a
    committee as directed by subpoena (H. Res. 574, May 7, 2014, p. 7490).
    In the 116th Congress, the House adopted a resolution directing the
    Speaker to certify to the United States Attorney the refusal of the
    Attorney General and the Secretary of Commerce to produce documents to a
    committee as directed by subpoena and authorizing that committee to take
    steps to seek civil enforcement of certain subpoenas (H. Res. 497, July
    17, 2019, p. _). In the 117th Congress, the House adopted resolutions
    directing the Speaker to certify to the United States Attorney: 1) the
    refusal of a former White House staff member to produce documents to a
    committee or appear for a deposition; 2) the refusal of a former White
    House Chief of Staff to appear for a deposition; and 3) the refusal of a
    former White House Deputy Chief of Staff and a former White House staff
    member to produce documents to a committee or appear for a deposition,
    in each case as directed by subpoena (H. Res. 730, Oct. 21, 2021, p. _;
    H. Res. 851, Dec. 14, 2021, p. _; H. Res. 1037, Apr. 6, 2022, p. _). In
    the 118th Congress, the House adopted a resolution directing the Speaker
    to certify to the United States Attorney the refusal of the Attorney
    General to produce documents to a committee as directed by subpoena (H.
    Res. 1292, June 12, 2024, p. _) and, upon the adoption of such
    resolution, the House adopted (by special rule) a second resolution to
    the same effect that had been reported by a different committee (H. Res.
    1293, June 12, 2024, 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 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

      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).-

    [[Page 151]]

    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.

    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

      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).

      Although a Member may be named to a committee before being sworn, and
    in some cases a Member has not taken the oath until long afterwards (IV,
    4483), in the modern practice a Member-elect is elected to a standing
    committee effective only when sworn (e.g., H. Res. 26, 27, Jan. 7, 2011,
    p. 227; Precedents (Wickham), ch. 2, Sec. 1.2). Where a Member-elect
    participated in various committee business before taking the oath of
    office, the House adopted a resolution ratifying his election to and
    participation in proceedings of the committee (Precedents (Wickham), ch.
    2, Sec. 3.3). 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
    (see Sec. 198, supra). The House has granted a Member-elect a leave of
    absence (e.g., Precedents (Wickham), ch. 2, Sec. 1.8; Jan. 6, 2015, p.
    63).

    [[Page 152]]

    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).

      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 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, Precedents (Smith), ch.
    7, Sec. 8.1).

    [[Page 153]]

    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. 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

    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.

      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 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.

    Sec. 304. Breach of privilege to refuse to put a question
    which is in order.

        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.

      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 154]]

    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.

    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

      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).

    [[Page 155]]

    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. 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, along with the principle that Members
    indicted for certain felonies should resign from committees and party
    caucus or conference leadership positions until the charges have been
    dismissed or reduced to less than a felony (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

    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.

    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 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.

    [[Page 156]]

    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.
    * * * * *

    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