U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Wed Sep 01, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, continued ...

The CAA also authorizes congressional employees to bring sexual harassment claims for violations of Title VII of the Civil Rights Act of 1964, 190 although such claims appear to have only rarely been evaluated by federal courts.

In Scott v. Office of Alexander, the former scheduler for a Member brought a CAA claim that included counts alleging sexual harassment and retaliation for reporting that harassment in the form of a demotion. 191

The majority of the district court decision focused on the plaintiff’s retaliation claim. 192

Applying Fields, the court determined first that the demotion itself was not a legislative act, and thus the claim was not barred by the Clause’s general immunity principle.193

However, the court also held that a retaliation claim “operates in the same way” as the discrimination claims brought in Fields and Howard.
194

Thus, the plaintiff would be required to rebut the Member’s assertion of nonretaliatory reasons for her demotion in order to show that it was pretextual. 195

Through an affidavit, the Member had asserted that Scott was demoted because of scheduling errors that caused him to miss votes and committee hearings. 196

The court concluded that:

Although Plaintiff argues that her “case would not require impermissibly questioning anything that Defendant may have done during the course of an actual vote or hearing,” whether the Congressman missed or attended an actual vote or hearing, and the reasons why he may have attended or missed an actual vote or hearing, are inquiries that impermissibly relate to the legislative process.

Accordingly, the Court finds that Defendant has asserted, through the Congressman’s affidavit, legitimate, non-retaliatory reasons for Plaintiff's demotion that are protected from inquiry by the Speech or Debate Clause.
197

As a result, the court held that “the evidentiary privilege of the Clause prevents Plaintiff from refuting the Member’s stated reasons for her demotion.” 198

Because the plaintiff had not presented any evidence “unrelated to the Congressman’s stated reasons for Plaintiff’s demotion that would not require an inquiry into [] legislative acts,” the court dismissed the retaliation claim. 199

190 2 U.S.C. § 1302(a)(2); 42 U.S.C. §§ 2000e-2000e-17.

191 Scott v. Office of Alexander, 522 F. Supp. 2d 262, 265 (D.D.C. 2007).

192 Id. at 267-72.

193 Id. at 269 (“Plaintiff’s retaliation claim predicates liability on conduct that does not constitute core legislative activities.”).

194 Id. at 270.

195 Id.

196 Id. at 270-71.

197 Scott, 522 F. Supp. 2d at 271.

198 Id. at 272.

199 Id.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Fri Sep 03, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, concluded ...

With respect to the sexual harassment claim, the court held that the defendant’s argument that the claim was barred by the Clause was not properly before the court. 200

Nevertheless, the court provided some insight into how the Clause may apply to evidence supporting alleged sexual harassment, as opposed to alleged retaliation.

Whereas the plaintiff was “precluded from seeking discovery or otherwise inquiring about the Congressman’s reasons for removing Plaintiff as Scheduler,” the court suggested that “the proper focus of the remaining discovery ... appears to be the conduct that other individuals may have observed at times relevant to the Complaint, and what Plaintiff may have told others about such conduct.” 201

That evidence, it would appear, would not be protected by the Clause’s component privileges.

In sum, the Clause’s general immunity principle does not typically act as an absolute bar to employment-related claims brought under the CAA. 202

However, it would appear that there may be cases in which a CAA claim fails as a result of the application of the Clause’s evidentiary and testimonial privileges, which may effectively block a plaintiff from presenting evidence of related legislative acts necessary to support the claim. 203

200 Id. at 271

201 Id. at 274.

202 See Fields, 459 F.3d at 11.

203 See Howard, 720 F.3d at 949-50

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Sat Sep 04, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split

Although the precise scope of the protections afforded by the Clause have not been clearly articulated by the Supreme Court, there appears to be some agreement among the lower courts that the Clause provides immunity from direct liability for legislative acts; prohibits the use of legislative-act evidence in the course of litigation; and protects a Member from being compelled to respond to questioning regarding his legislative acts. 204

There is stark disagreement, however, as to whether the Clause encompasses a general documentary “non-disclosure privilege” that applies unrelated to whether such documents are introduced into evidence. 205

When accepted, this privilege appears to be included within the testimonial component of the Clause, and may apply in a variety of situations, including protecting Members from compelled compliance with an administrative 206 or civil discovery 207 subpoena for legislative-act documents, or from disclosures reflecting legislative acts that occur during a search executed as part of a criminal investigation. 208

The D.C. Circuit has established the documentary nondisclosure privilege. 209

In a series of opinions, the circuit court determined that the Clause bars any compelled disclosure — not just the evidentiary use — of written materials that fall “within the sphere of legitimate legislative activity.” 210

According to the D.C. Circuit, this privilege is broad and “absolute,” and applies with equal “vigor” as the other aspects of the Clause. 211

The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) and the Third Circuit have rejected this documentary nondisclosure privilege, considering it an undue expansion of the Clause. 212

Instead, these courts have held, at least in criminal cases, that the Clause prohibits only the evidentiary use of privileged documents, not their mere disclosure to the government for review as part of an investigation. 213

The disagreement has not been addressed by the Supreme Court. 214

204 See, e.g., Renzi, 651 F.3d at 1035 n. 27 (“To reiterate, the Court has identified three distinct privileges in the Clause: a testimonial privilege, an evidentiary privilege, and a privilege against liability.”); Howard, 720 F.3d at 946 (“As a general matter, the Speech or Debate Clause affords three distinct protections: (a) an immunity from ‘a civil or criminal judgment ...’ (b) an evidentiary privilege ... and (c) a testimonial and non-disclosure privilege ...”) (citations omitted).

205 Compare Rayburn, 497 F.3d at 655 (holding that the testimonial component of the Clause includes a documentary nondisclosure privilege), with Renzi, 651 F.3d at 1034 (holding that the testimonial component of the Clause does not create the documentary nondisclosure privilege outlined in Rayburn).

206 See Comm. on Ways & Means, 161 F. Supp. 3d at 238-45.

207 MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 857-59 (D.C. Cir. 1988).

208 Rayburn, 497 F.3d at 660.

209 See id. at 660-62; Brown & Williamson, 62 F.3d at 420; MINPECO, 844 F.2d at 858.

210 Rayburn, 497 F.3d at 660.

211 Brown & Williamson, 62 F.3d at 420-21.

212 Renzi, 651 F.3d at 1032-39; Fattah, 802 F.3d at 524-29; In re Grand Jury Investigation, 587 F.2d 589, 595-97 (3rd Cir. 1978).

213 Fattah, 802 F.3d at 529.

214 Rayburn, 651 F.3d at 1033 (noting that “to date the Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privilege”); Comm. on Ways & Means, 161 F. Supp. 3d at 238.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Sun Sep 05, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split, continued ...

The D.C. Circuit position is perhaps best exemplified by two cases: Brown & Williamson Tobacco Corporation v. Williams and United States v. Rayburn House Office Building. 215

Brown & Williamson arose when a former employee of a law firm disclosed to a congressional committee stolen documents that were obtained while the firm was representing Brown & Williamson. 216

The law firm brought an action against the former employee in state court, and during that proceeding, the court issued subpoenas to two Members of the committee requiring the return of the stolen documents. 217

The case was removed to federal court, where the Members sought to quash the subpoenas on Speech or Debate grounds. 218

The court agreed with the Members, blocking the subpoenas and extending the Clause to include a general nondisclosure privilege. 219

In doing so, the court rejected three conclusions that had been reached by the Third Circuit in an earlier case.

First, the court rebuffed the idea that a Member must be named as a party to the suit in order for litigation to “distract them from their legislative work.” 220

“Discovery procedures” in any civil case, the court reasoned, “can prove just as intrusive” as being a party to a case. 221

The court similarly disagreed with the assertion that the testimonial component of the Clause applies only when Members or their aides are “personally questioned,” suggesting instead that “documentary evidence can certainly be as revealing as oral communications.” 222

Finally, the court dismissed the assertion that when applied to documents, the Clause’s protection “is one of nonevidentiary use, not of nondisclosure.”

Instead, noting the antidistraction purpose of the Clause, the court held that “the nature of the use to which documents will be put ... is immaterial if the touchstone is interference with legislative activities.” 223

The court concluded that “a party is no more entitled to compel congressional testimony — or production of documents — than it is to sue a congressman.” 224

The D.C. Circuit later extended the nondisclosure privilege to scenarios in which the government executes a search warrant as part of a criminal investigation of a Member. 225

In United States v. Rayburn House Office Building, a Member sought the return of documents seized by the Federal Bureau of Investigation (FBI) during a search of the Member’s office, arguing the search — which was pursuant to a warrant for nonlegislative, unprotected documents — was executed in a way that
violated the Clause. 226

In order to distinguish between protected and unprotected documents, the warrant permitted FBI agents to review “all of the papers in the Congressman’s office.” 227

215 Brown & Williamson, 62 F.3d at 411-421; Rayburn, 497 F.3d at 659-63.

216 Brown & Williamson, 62 F.3d at 411-12.

217 Id.

218 Id. at 412.

219 Id. at 420 (“We do not accept the proposition that the testimonial immunity of the Speech or Debate Clause only applies when Members or their aides are personally questioned. Documentary evidence can certainly be as revealing as oral communications ...”).

220 Id. at 418 (citing MINPECO, 844 F.2d 856.).

221 Id.

222 Brown & Williamson, 62 F.3d at 420.

223 Id. at 421.

224 Id.

225 Rayburn, 497 F.3d at 656.

226 Id. at 655.

227 Id. at 661. This instance was the first time a sitting Member’s office was searched by the executive branch. Id. at 659.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Mon Sep 06, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split, continued ...

The D.C. Circuit held that the search violated the Clause because the Executive’s procedures “denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents.” 228

The court noted that despite the limited scope of the warrant, the FBI’s review of the Member’s papers to determine which were responsive “must have resulted in the disclosure of legislative materials to agents of the executive.” 229

That compelled disclosure was inconsistent with the protections of the Clause. 230

In reaching this conclusion, the court reaffirmed the nondisclosure privilege articulated in Brown & Williamson, and then extended it to the criminal context, concluding that “there is no reason to believe that the bar does not apply in the criminal as well as the civil context.” 231

The court also reaffirmed its view of the absolute nature of the nondisclosure privilege, noting that the “non-disclosure privilege of written materials ... is [] absolute, and thus admits of no balancing.” 232

The court carefully distinguished between the lawfulness of searching a congressional office pursuant to a search warrant — which the court held was clearly permissible — and the lawfulness of the way the search was executed. 233

The court declined, however, to expressly delineate acceptable procedures that could avoid future violations, noting only that there appears to be “no reason why the Congressman’s privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement.” 234

228 Id. at 662.

229 Id. at 661. The court also held that the FBI’s copying of hard drives was permissible, since procedures allowed for the Member to assert privilege prior to FBI review of the drive. Id. at 663.

230 In reaching its conclusion, the court invoked the distraction and disruption rationale, noting that: This compelled disclosure clearly tends to disrupt the legislative process: exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process. Id. at 661.

231 Id. at 660.

232 Rayburn, 497 F.3d at 662.

233 Id. at 659.

234 Id. at 662. The court observed that the question of how these searches should proceed “is best determined by the legislative and executive branches in the first instance.” Id. at 663.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Thu Sep 09, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split, continued ...

The D.C. Circuit’s legal reasoning in Rayburn has been rejected by both the Ninth and Third Circuits. 235

In United States v. Renzi, the Ninth Circuit held that the Clause does not prohibit the compelled disclosure of legislative documents to the government in the course of executing a warrant in a criminal investigation, at least when the underlying criminal action is not itself barred by the immunity prong of the Clause. 236

Renzi involved a Speech or Debate Clause challenge brought by a former Member to portions of a 48-count indictment that included charges that he agreed to provide certain legislative favors in exchange for personal benefits. 237

Specifically, the Member relied on the nondisclosure privilege articulated in Rayburn to argue, in part, that the government’s unlawful review of privileged documents allowed it to obtain evidence that was used against him. 238

The Ninth Circuit rebuffed Renzi’s argument, as well as the reasoning in Rayburn, instead finding that the Clause does not encompass a documentary nondisclosure privilege. 239

After noting that the Supreme Court has not recognized the existence of a general nondisclosure privilege, the Renzi court laid out the three principal reasons that led it to disagree with the D.C. Circuit’s reasoning.

First, the court objected to the D.C. Circuit’s reliance on the notion that “distraction” from a Member’s legislative duty, on its own, can serve “as a touchstone for application of the Clause’s testimonial privilege.” 240

Instead, the court reasoned that because “legislative distraction is not the primary ill the Clause seeks to cure,” that rationale must be “anchored” to a barred action — for example, an investigation into a protected act — before it can preclude inquiry. 241

In cases where the underlying action is not precluded, the court stated that “other legitimate interests exist” and must be taken into account, most notably “the ability of the executive to adequately investigate and prosecute corrupt legislators for non-protected activity.” 242

Second, the circuit court indicated that previous decisions by the Supreme Court have suggested that the executive branch may review legislative materials as part of an investigation. 243

For example, in United States v. Helstoski, the Supreme Court reasoned that the executive branch could redact “legislative” aspects of certain documents so that the “remainder of the evidence would be admissible.” 244

From this language, the circuit court noted that:

Because the Executive would be hard pressed to redact a document it was constitutionally precluded from obtaining or reviewing, we see no tenable explanation for this caveat except that the Clause does not blindly preclude disclosure and review by the Executive of documentary “legislative act” evidence. 245

Third, the court determined that any interpretation of the Clause that permitted the courts, but not the executive branch, to review protected legislative documents would be inconsistent with the separation-of-powers rationale that undergirds the Clause. 246

The Clause, the court noted, is a “creature born of separation of powers” and thus must apply “in equal scope and with equal strength to both the Executive and the Judiciary.” 247

The court specifically criticized the D.C. Circuit’s opinion in Rayburn on the grounds that it prohibited “‘any executive branch exposure to records of legislative acts’ ... while noting that the Judiciary could review evidence claimed to be privileged.” 248

“Such a distinction,” the court stated, “cannot exist.” 249

235 Renzi, 651 F.3d at 1032-39; Fattah, 802 F.3d at 524-29

236 Renzi, 651 F.3d at 1032-39.

237 Id. at 1017-18.

238 Id. at 1019. The court also rejected Renzi’s assertion that the charges were based on “legislative acts.” Id. at 1021-27.

239 Id. at 1032.

240 Id. at 1034.

241 Renzi, 651 F.3d at 1037 (“Concern for distraction alone cannot bar disclosure and review when it takes place as part of an investigation into otherwise unprotected activity.”).

242 Id. at 1036.

243 Id. at 1037.

244 Helstoski, 442 U.S. at 488 n.7.

245 Renzi, 651 F.3d at 1037.

246 Id. at 1037-38.

247 Id. at 1038.

248 Id. (citing Rayburn, 497 F.3d at 660).

249 Id.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Mon Sep 13, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split, concluded ...

The precise holding of Renzi appears to be that the Clause does not prohibit the government from reviewing protected legislative documents as part of the execution of a warrant connected to an investigation into nonlegislative acts. 250

However, the opinion suggests that there may be times when the testimonial component of the Clause would create a nondisclosure privilege in response to a subpoena for documents.

Citing to the concurrence in Rayburn, the Ninth Circuit indicated that execution of a warrant has no testimonial aspects since the Member is not required to “respond” in any way. 251

However, the court reasoned that “it is entirely true that sometimes the very disclosure of documentary evidence in response to a subpoena duces tecum may have some testimonial import.” 252

This language would appear to suggest that the Ninth Circuit has not foreclosed the idea of the existence of some form of documentary nondisclosure privilege — for instance, one more intimately connected to the testimonial privilege component — that may apply in situations where a subpoena is issued for legislative documents.

The central focus for the court appears to have been whether the disclosure is “testimonial,” and therefore more directly implicating the “question[ing]” prohibited by the Clause. 253

The Third Circuit similarly rejected the existence of a documentary nondisclosure privilege during criminal investigations in In re Fattah. 254

There, a Member challenged a warrant, served on Google, authorizing the government to search his email on the grounds that such a search was barred by the Clause. 255

Specifically, the Member asserted that the privilege created by the Clause was “one of non-disclosure.” 256

The court rejected this argument, holding that “it cannot be ... that the privilege prohibits disclosure of evidentiary records to the Government during the course of an investigation.” 257

The court rested its decision primarily on the effect such a broad privilege would have on criminal prosecutions, noting that a nondisclosure privilege during criminal investigations would “shelter” Members from criminal responsibility and “eradicate the integrity of the legislative process” by “unduly amplify[ing] the protections” of the Clause. 258

The court ultimately refused to extend the testimonial component of the Clause to documentary disclosures, concluding that:

... while the Speech or Debate Clause prohibits hostile questioning regarding legislative acts in the form of testimony to a jury, it does not prohibit disclosure of Speech or Debate Clause privileged documents to the Government. Instead, as we have held before, it merely prohibits the evidentiary submission and use of those documents. 259

How, and whether, the Supreme Court resolves this ongoing disagreement over the existence of a documentary nondisclosure privilege could have a significant impact on the protections afforded to Members by the Clause.

For example, if the Court were to adopt the position of the Third and Ninth Circuits, that ruling would directly limit a Member’s ability to invoke the Clause as a shield against the disclosure of documents to the executive branch during a criminal investigation.

More generally, however, the disagreement between the D.C. Circuit and the Third and Ninth Circuits is one relating to the fundamental purpose of the Clause. 260

The opinions in Renzi and Fattah appear to have adopted a legal reasoning that minimizes the role of the “distraction” rationale in defining the scope of the Clause.

Were the Supreme Court to embrace that reasoning, it could potentially lead to a narrowing of the Clause’s protections, especially in scenarios in which information is sought from a Member in a proceeding to which he is not a party.

250 Id. at 1038-39.

251 Renzi, 651 F.3d at 1037 n. 28.

252 Id. at 1037 n. 28.

253 Id.

254 Fattah, 802 F.3d at 524-29. See also, In re Grand Jury Investigation, 587 F.2d 589, 595-97 (3rd Cir. 1978) (holding that “when applied to records or third-party testimony” the privilege afforded by the Clause “is one of nonevidentiary use, not of nondisclosure”).

255 Fattah, 802 F.3d at 521-22.

256 Id. at 524.

257 Id. at 528.

258 Id. at 529 (“Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.”) (quoting Renzi, 651 F.3d at 1036).

259 Id.

260 In some sense, the debate concerns how, under the Clause, the purpose of preventing “distraction” should be weighed against the purpose of preserving “independence.” See Renzi, 651 F.3d at 1034 (“Rayburn rests on the notion that ‘distraction’ of Members and their staffs from their legislative tasks is a principal concern of the Clause, and that distraction alone can therefore serve as a touchstone for application of the Clause’s testimonial privilege ... We disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale.”).

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Sat Sep 18, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

The Acquisition and Use of Information by Congress

A final line of cases relates to Speech or Debate Clause protections for the acquisition and use of information by Congress. 261

These cases typically arise from lawsuits in which a party asks a court to invalidate or block a congressional subpoena, or to direct Congress or its Members in how they may use information that is within their possession.

Generally, a court will not interfere with lawful efforts by Congress to exercise its subpoena power, nor will a court act to limit the ability of Members to use or distribute information within the legislative sphere. 262

In some sense, these cases tend to emphasize the structural and institutional aspects of the Clause’s role in the separation of powers. 263

In Eastland v. United States Serviceman’s Fund, the Supreme Court concluded that the Clause acts as a significant barrier to judicial interference in Congress’s exercise of its subpoena power. 264

In this case, a private nonprofit organization filed suit against the Chairman of a Senate subcommittee asking the Court to enjoin a congressional subpoena issued to a bank for the nonprofit’s account information. 265

The subpoena was issued as part of an investigation into alleged “subversive” activities harmful to the U.S. military conducted by the organization. 266

The Court held that because the “power to investigate and to do so through compulsory process plainly” constitutes an “indispensable ingredient of lawmaking,” the Clause made the subpoena “immune from judicial interference.” 267

Eastland is generally cited for the proposition that the Clause prohibits courts from entertaining preenforcement challenges to congressional subpoenas. 268

As a result, the lawfulness of a subpoena usually may not be challenged until Congress seeks to enforce the subpoena through either a civil action or contempt of Congress. 269

While it is generally true that courts will not interfere in valid congressional attempts to obtain information, especially through the exercise of the subpoena power, the concurrence in Eastland and a subsequent appellate court decision suggests that the restraint exercised by the courts in deference to the separation of powers is not absolute. 270

Justice Marshall’s concurrence in Eastland clarified that the Clause “does not entirely immunize a congressional subpoena from challenge.” 271

Rather, according to Justice Marshall, the Clause requires only that a Member “may not be called upon to defend a subpoena against constitutional objection.” 272

Thus, Justice Marshall implied that if a challenge to the legitimacy of a subpoena is directed not at Congress or its Members, it may be permitted to proceed. 273

Such a claim arose, however, in the case of United States v. AT&T. 274

In that case, a congressional subcommittee subpoena was issued to AT&T for all letters sent to the company by the Department of Justice (DOJ) that had identified certain phone lines the DOJ wished to monitor. 275

DOJ filed suit, seeking to enjoin AT&T from complying with the subpoena, citing national security concerns. 276

The subcommittee Chairman intervened in the case, asserting that judicial interference in the subcommittee’s investigation was barred by the Clause. 277

After the court’s attempts to initiate a settlement between the parties failed, 278 the D.C. Circuit ultimately rejected the Chairman’s argument, noting generally that the Clause “was not intended to immunize congressional investigatory actions from judicial review.” 279

Instead, the court concluded, the Clause “is personal to members of Congress” such that when Members or their aides are not “harassed by personal suit against them, the Clause cannot be invoked to immunize the congressional subpoena from judicial scrutiny.” 280

The court went on to establish an exception to the general prohibition on preenforcement interference with congressional subpoenas.

When a party is “not in a position to assert its claim of constitutional right by refusing to comply with a subpoena,” because the subpoena was issued to a neutral third party, the Clause “does not bar the challenge so long as members of the Subcommittee are not, themselves, made defendants in a suit to enjoin implementation of the subpoena.” 281

261 See, e.g., Eastland, 421 U.S. at 501-11; Brown & Williamson, 62 F.3d at 416-17; Hearst v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936).

262 See Eastland, 421 U.S. at 501; Brown & Williamson, 62 F.3d at 416 (“The privilege also permits Congress to conduct investigations and obtain information without interference from the courts, at least when these activities are performed in a procedurally regular fashion.”); Dombrowski v. Burbank, 358 F.2d 821, 823-24 (1966) “Since the documents are now held by the Subcommittee ... We cannot prohibit, nor are we asked to prohibit, [their] use of the documents in the course of their official business for the Subcommittee ...”).

263 See, Dombrowski, 358 F.2d at 824 (noting the importance of “considerations resting upon a proper allocation of powers and responsibilities among the co-ordinate branches of the federal system....”).

264 Eastland, 421 U.S. at 501.

265 Id. at 494-96.

266 Id. at 493.

267 Id. at 501.

268 In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987) (“The Supreme Court has held analogously that the Speech or Debate Clause shields Congressmen from suit to block a Congressional subpoena because making the legislators defendants ‘creates a distraction and forces Members [of Congress] to divert their time, energy, and attention from their legislative tasks to defend the litigation.’”) (citing Eastland, 421 U.S. at 503.).

269 United States v. Ryan, 402 U.S. 530, 532 (1971) (noting that in the judicial context that “one who seeks to resist the production of desired information [has a] choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal”); Eastland, 421 U.S. at. 515-16 (Marshall, J., concurring).

270 Eastland, 421 U.S. at 513-18; United States v. Am. Tel. & Telegraph Co., 567 F.2d 121, 129-30 (D.C. Cir. 1977).

271 Eastland, 421 U.S. at. 513 (Marshall, J., concurring).

272 Id. at 516.

273 Id. at 517. Justice Marshall did not speculate as to what such a case may look like or “who might be the proper parties defendant.” Id.

274 United States v. AT&T, 567 F.2d 121, 123-25 (D.C. Cir. 1977).

275 Id. at 123-24.

276 Id.

277 Id. at 124.

278 In a prior iteration of the case, the D.C. Circuit had requested that the two branches seek a settlement, reasoning that “before moving on to a decision of such nerve-center constitutional questions, we pause to allow for further efforts at a settlement.” United States v. AT&T, 551 F.2d 384, 394 (1976).

279 AT&T, 567 F.2d at 129.

280 Id. at 130.

281 Id. at 129. This principle builds off the Perlman doctrine, which generally holds that a preenforcement challenge to a subpoena may be appropriate when the subpoena is issued to a neutral third party, rather than the party that owns the constitutional privilege. Perlman v. United States, 247 U.S. 7, 12 (1918).

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

Post by thelivyjr » Sun Sep 19, 2021 1:40 p

Congressional Research Service

Understanding the Speech or Debate Clause
, concluded ...

Todd Garvey, Legislative Attorney

December 1, 2017

The Acquisition and Use of Information by Congress, concluded ...

Once information is in the possession of Congress, courts generally will not curtail the ability of Members to use or distribute that information within the legislative sphere.

For example, in Doe v. McMillan, a case dealing with the inclusion of specific students’ names in a committee report on the D.C. public schools, the Supreme Court noted that “although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the ... Committee Report, we have no authority to oversee the judgment of the Committee in this respect ...” 282

The D.C. Circuit has also issued a series of opinions protecting Congress’s authority to freely and independently assess and use information within its possession, no matter how it was obtained.

In Hearst v. Black, the court concluded that it was not within its authority to tell a Senate committee that it was barred from “keeping” or “making any use of” certain unlawfully obtained documents. 283

Similarly, in McSurely v. McClellan, a case involving the receipt of documents by a committee that were obtained pursuant to an unlawful search by a congressional investigator, the court noted that “the law is clear that even though material comes to a legislative committee by means that are unlawful or otherwise subject to judicial inquiry the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity.” 284

Finally, in Brown & Williamson, the court suggested that the Clause supplied Congress with the “privilege to use materials in its possession without judicial interference.” 285

These principles were applied recently in the case of Senate Permanent Subcommittee on Investigations v. Ferrer, 286 in which a Senate subcommittee initiated a civil action to enforce a subpoena issued to the Chief Executive Officer (CEO) of an online advertising website for documents relating to sex trafficking. 287

As part of that proceeding, the CEO asked the D.C. Circuit to order that the subcommittee destroy or return certain documents he had produced in response to the subpoena. 288

The court refused to comply with that request, citing to the aforementioned cases, and reasoning that “to circumscribe the committee’s use of material in its physical possession would ... ‘destroy[]’ the independence of the Legislature and ‘invade[]’ the constitutional separation of powers.” 289

The court ultimately held that “the separation of powers, including the Speech or Debate Clause, bars this court from ordering a congressional committee to return, destroy, or refrain from publishing the subpoenaed documents.” 290

Conclusions

The Speech or Debate Clause is perhaps the greatest constitutional bulwark against inappropriate executive or judicial intrusions into both the functioning of Congress as an institution and the representative role of individual Members.

The Clause seeks to ensure an independent legislature by providing Members with immunity from liability for legislative acts in both criminal and civil cases.

That immunity appears to be complemented by both an evidentiary and a testimonial privilege that protects against the compelled disclosure of information reflecting those acts.

However, the scope of those privileges, especially with regard to the disclosure of documents for nonevidentiary purposes, is subject to debate among the federal courts.

The issue would appear to be ripe for Supreme Court review.

Author Contact Information

Todd Garvey
Legislative Attorney
tgarvey@crs.loc.gov, 7-0174

282 Doe v. McMillan, 412 U.S. 306, 313 (1973).

283 Hearst v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936).

284 McSurely v. McClellan, 553 F.2d 1277, 1296-97 (D.C. Cir. 1976).

285 Brown & Williamson, 62 F.3d at 416. See also, Dombrowski, 358 F.2d at 823-24.

286 Senate Permanent Subcomm. on Investigations v. Ferrer 856 F.3d 1080, 1085-87 (D.C. Cir, 2017).

287 Id. at 1084.

288 Id.

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