U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause


Todd Garvey, Legislative Attorney

December 1, 2017

Congressional Research Service
7-5700
www.crs.gov
R45043

Summary

The Speech or Debate Clause (Clause) of the U.S. Constitution states that “[F]or any Speech or Debate in either House,” Members of Congress (Members) “shall not be questioned in any other Place.”

The Clause serves various purposes: principally to protect the independence and integrity of the legislative branch by protecting against executive or judicial intrusions into the protected legislative sphere, but also to bar judicial or executive processes that may constitute a “distraction” or “disruption” to a Member’s representative or legislative role.


Despite the literal text, protected acts under the Clause extend beyond “speeches” or “debates” undertaken by Members of Congress, and have also been interpreted to include all “legislative acts” undertaken by Members or their aides.

Judicial interpretations of the Clause have developed along several strains.

First and foremost, the Clause has been interpreted as providing Members with general criminal and civil immunity for all “legislative acts” taken in the course of their official responsibilities.

This immunity principle protects Members from “intimidation by the executive” or a “hostile judiciary” by prohibiting both the executive and judicial powers from being used to improperly influence or harass legislators.

Second, the Clause appears to provide complementary evidentiary and testimonial privileges.

Although not explicitly articulated by the Supreme Court, lower federal courts have generally viewed these component privileges as a means of effectuating the purposes of the Clause by barring evidence of protected legislative acts from being used against a Member, and protecting a Member from compelled questioning about such acts.

The testimonial privilege component of the Clause has given rise to significant disagreement in the lower courts.

The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has held that the Clause’s testimonial privilege encompasses a general documentary nondisclosure privilege that applies regardless of the purposes for which disclosure is sought.

To the contrary, the U.S. Court of Appeals for the Third Circuit and the U.S. Court of Appeals for the Ninth Circuit have rejected that position, holding instead that, at least in criminal cases, the Clause prohibits only the evidentiary use of privileged documents, not their mere disclosure to the government for review as part of an investigation.

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Introduction

The Constitution’s Speech or Debate Clause (Clause) represents a key pillar in the American separation of powers.1

The Clause, which derives its form from the language of the English Bill of Rights and has deep roots in the historic struggles between King and Parliament, 2 serves chiefly to protect the independence, integrity, and effectiveness of the legislative branch by barring executive or judicial intrusions into the protected sphere of the legislative process. 3

These prohibited intrusions may take various forms, and, judicial interpretation of the Clause’s relatively ambiguous language has developed along several related lines of cases. 4

First and foremost, the Clause has been interpreted as providing Members of Congress (Members) 5 with general immunity from liability for all “legislative acts” 6 taken in the course of their official responsibilities. 7

This “cloak of protection” 8 shields Members from “intimidation by the executive” or a “hostile judiciary” by protecting against either the executive or judicial powers from being used to improperly influence or harass legislators through retaliatory litigation. 9

This overarching immunity principle has traditionally been viewed as advancing the primary purpose of the Clause: that of preserving the independence of the legislative branch.

The Clause has also been said to serve a good governance role, barring judicial or executive processes that may constitute a “distraction” or “disruption” to a Member’s representative or legislative role. 10

The Court has cited this “distraction” principle, and the Clause’s broad proscription that Members not be “questioned in any other place,” as justification for extending the Clause’s immunity protection beyond criminal actions initiated by the executive branch —which clearly implicate the separation of powers — to private civil suits initiated by members of the public — which generally implicate the separation of powers only to a lesser degree. 11

1 United States v. Helstoski, 442 U.S. 477, 491 (1979) (noting that the Clause’s “purpose was to preserve the constitutional structure of separate, coequal, and independent branches of government.”); United States v. Johnson, 383 U.S. 169, 178 (1966) (holding that the Clause “reinforc[es] the separation of powers so deliberately established by the Founders.”); United States v. Renzi, 651 F.3d 1012, 1037 (9th Cir. 2011) (noting that the “Speech or Debate Clause is a creature born of separation of powers concerns”); Fields v. Office of Johnson, 459 F.3d 1, 8 (D.C. Cir. 2006) (en banc) (“The Speech or Debate Clause reinforces the separation of powers and protects legislative independence.”).

2 Johnson, 383 U.S. at 178 (describing the Clause as “the culmination of a long struggle for parliamentary supremacy” in which “successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.”). For a thorough discussion of the historical evolution of the legislative privilege associated with the Clause, see JOSH CHAFETZ, CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS 201-10 (2017).

3 See Helstoski, 442 U.S. at 491(“This Court has reiterated the central importance of the Clause for preventing intrusion by [the] Executive and Judiciary into the legislative sphere.”); Johnson, 383 U.S. at 181 (noting that the primary purpose of the Clause is to “prevent intimidation by the executive and accountability before a possibly hostile judiciary”).

4 Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995) (“From this terse prohibition has emerged a somewhat complicated privilege, with several strands.”).

5 This report will refer generally to “Members,” but as discussed infra, the privilege applies to Members and their aides. See “Who Is Protected?” infra.

6 See “What Constitutes a Legislative Act?” infra.

7 Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-03 (1975) (“Thus we have long held that, when it applies, the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.”); Gravel v. United States, 408 U.S. 606, 615-17 (1972).

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

9 See Johnson, 383 U.S. at 181; Gravel, 408 U.S. at 617; Miller v. Transamerican Press, Inc., 709 F.2d 524, 528 (9th Cir. 1983).

10 Eastland, 421 U.S. at 503 (“Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function.”); United States v. Brewster, 408 U.S. 501, 507 (1972) (noting that the Clause exists to “protect the integrity of the legislative process”); Powell v. McCormack, 395 U.S. 486, 505 (1969) (stating that “the purpose of the protection afforded legislators is... to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions”); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (“Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good... The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of trial ...”).

11 Eastland, 421 U.S. at 503; Brown & Williamson, 62 F.3d 408, 416 (1995) (“The Clause states, after all, that Members shall not be called to account ‘in any other Place’—not just a criminal court.”). Even civil suits may arguably implicate the separation-of-powers principles that underlie the Clause. Any court order directed at a Member could be viewed as a clash between the judicial and legislative powers. See Eastland, 421 U.S. at 503 (“[W]hether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.”).

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Introduction, concluded ...

Even when absolute immunity is not appropriate — for example, when a charge or claim does not arise directly out of a legislative act but is rather entangled with protected and unprotected acts — the Clause appears to provide Members with complementary evidentiary and testimonial privileges which may be invoked by a Member to protect against the introduction of specific “legislative act” evidence.

Although not explicitly articulated by the Supreme Court, 12 lower federal courts have generally viewed these component privileges as a means of effectuating the protections afforded by the Clause by barring the introduction of specific documentary evidence of protected legislative acts for use against a Member and protecting a Member from being questioned 13 regarding those same acts. 14

Some appellate opinions have recognized that the Clause must also include a broad documentary nondisclosure privilege to protect Members from the perils and burdens of revealing written legislative materials, even when the documents are not used as evidence against the Member. 15

Although this nondisclosure privilege has not been adopted by the Supreme Court, it has been utilized to extend the protections of the Clause to prohibit the compelled disclosure of documents in various circumstances, including during searches conducted as a part of a criminal investigation. 16

Some courts, however, have rejected this reasoning, considering it an undue expansion of the Clause. 17

These courts have instead held that, at least in criminal cases, the Clause prohibits only the evidentiary use of privileged documents, not their mere disclosure to the government for review as part of an investigation. 18

The Clause has also been interpreted to protect Congress’s ability to obtain and use information without interference from the judiciary. 19

These cases tend to emphasize the structural aspects of the Clause’s role in the separation of powers and, more specifically, the proper relationship between Congress and the courts. 20

For example, courts have generally read the Clause as prohibiting the judicial branch from invalidating or blocking a congressional subpoena, or from interfering with how Congress, and its Members, choose to use information within the legislative sphere. 21

12 See infra notes 29-36.

13 This component of the Clause would appear to apply to questioning that occurs at trial, before the grand jury, or in a deposition. See Fields, 459 F.3d at 14.

14 See Gravel, 408 U.S. at 616, 622, 628-29 (reasoning that a Senator “may not be made to answer — either in terms of questions or in terms of defending himself” for legislative acts); Helstoski, 442 U.S. at 490 (holding that “revealing information as to a legislative act” to a jury violates the Clause”). Perhaps the chief distinction between the immunity principle and the evidentiary and testimonial components of the Clause is that when a claim is predicated on a legislative act, and therefore triggers immunity, the Clause operates as a “jurisdictional bar.” See Fields, 459 F.3d at 13 (2006).

15 See, e.g., United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007); MINPECO, S.A. v. Conticommodity Serv. Inc., 844 F.2d 856 (D.C. Cir. 1988). The D.C. Circuit’s jurisprudence holds that the documentary nondisclosure privilege is part of the testimonial privilege. Rayburn, 497 F.3d at 655 (“Our precedent establishes that the testimonial privilege under the Clause extends to non-disclosure of written legislative materials.”).

16 Rayburn, 497 F.3d at 655

17 See, e.g., In re Fattah, 802 F.3d 516, 529 (3rd Cir. 2015); Renzi, 651 F.3d at 1034 (“We disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale.”).

18 Fattah, 802 F.3d at 529 (“The Speech or Debate Clause does not prohibit the disclosure of privileged documents. Rather, it forbids the evidentiary use of such documents.”).

19 Eastland, 421 U.S. at 501.

20 Id. at 509 n.16 (“Where we are presented with an attempt to interfere with an ongoing activity by Congress, and that activity is found to be within the legitimate legislative sphere, balancing plays no part. The speech or debate protection provides an absolute immunity from judicial interference.”).

21 See Ferrer, 856 F.3d at 1086 (“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.”) (citations omitted).

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

The Core of the Clause: Member Immunity and Component Privileges

In fashioning an evolving interpretation, the Supreme Court has described the Clause as a provision in which the text simply cannot be interpreted literally. 22

“Deceptively simple” phrases such as “shall not be questioned,” “Speech or Debate,” and even “Senators and Representatives” have been the subject of significant debate. 23

While there appears to be much about the Clause that is unclear, it is well established that the Clause seeks to secure the independence of legislators by providing Members with immunity from criminal prosecutions or civil suits that stem from acts taken within the legislative sphere. 24

This general immunity principle forms the core of the protections afforded by the Clause.

The Supreme Court has consistently and repeatedly suggested the Clause’s immunity principle should be interpreted “broadly” to effectuate the purpose of maintaining an independent legislature. 25

Once it is determined that the Clause applies to a given action, the resulting protections from liability are “absolute,” 26 and the action “may not be made the basis for a civil or criminal judgment against a Member.” 27

Unlike some constitutional provisions, the Clause does not require a court to engage in a balancing of interests. 28

The Clause’s general immunity principle is perhaps best understood as complemented — and effectuated — by two component privileges that courts have viewed as emanating from the Clause.

The evidentiary component of the Clause prohibits evidence of legislative acts from being introduced for use against a Member. 29

Similarly, the testimonial component of the Clause generally may be invoked when a Member is questioned about his legislative acts, either in a trial, before the grand jury, or in a deposition, and, in some courts, to block the compelled disclosure of documents pursuant to a subpoena or a warrant. 30

The Supreme Court has not explicitly framed the protections of the Clause by reference to these two independent component privileges, but has instead used language that implies only their existence. 31

As such, these privileges are neither clearly established nor described, and, especially in regard to the testimonial privilege, relatively unsettled.

Nevertheless, in understanding the Speech or Debate Clause, it would seem prudent to describe the Clause as composed of a general immunity principle, complemented by component evidentiary and testimonial privileges. 32

22 Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979) (noting that the “Court has given the Clause a practical rather than a strictly literal reading ...”). See also, Bastien v. Office of Campbell, 390 F.3d 1301, 1305 (10th Cir. 2004) (“[T]he Supreme Court has long treated the Clause as constitutional shorthand for a more extensive protection.”).

23 Brown & Williamson, 62 F.3d at 415.

24 Eastland, 421 U.S. at 510-11 (noting that the Clause should be “construed to provide the independence which is its central purpose”); Johnson, 383 U.S. at 182 (“There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.”).

25 Eastland, 421 U.S. at 501 (“Without exception, our cases have read the Speech or Debate Clause broadly to effectuate its purposes.”).

26 Id. at 503 (“[O]nce it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.”); Doe v. McMillan, 412 U.S. 306, 324 (1973) (“The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating.”). Indeed, the Court has gone so far as to say that legislative acts may not even be the subject of “inquiry” by either the executive or judicial branches. Brewster, 408 U.S. at 509 (“The privilege protects Members from inquiry into legislative acts or the motivation for actual performance of legislative acts.”).

27 McMillan, 412 U.S. at 312.

28 Eastland, 421 U.S. at 508 n.16 (“Where we are presented with an attempt to interfere with an ongoing activity by Congress, and that activity is found to be within the legitimate legislative sphere, balancing plays no part.”).

29 Helstoski, 442 U.S. at 487 (noting that the Court’s previous holdings “leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government”); Brewster, 408 U.S. at 527 (holding that “evidence of acts protected by the Clause is inadmissible”).

30 Gravel, 408 U.S. at 616 (holding that Members “may not be made to answer—either in terms of questions or in terms of defending himself from prosecution” for legislative acts).

31 Indeed, the Supreme Court has never used the phrase “testimonial privilege” or “evidentiary privilege” in discussing the Speech or Debate Clause. In United States v. Gillock, the Court referenced an evidentiary privilege for state legislators “similar in scope” to the Clause. 445 U.S. 360, 366 (1980).

32 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 v. Office of the Chief Admin. Officer of the United States House of Representatives, 720 F.3d 939, 946 (2013) (“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)

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

The Core of the Clause: Member Immunity and Component Privileges, continued ...

Although there appears to be some agreement on the existence of the immunity principle and the evidentiary and testimonial privileges, the Supreme Court’s relatively ambiguous treatment of the interactions between the different aspects of the Clause has led to significant disagreement among the lower courts. 33

For example, the Court’s silence on the scope of the testimonial component of the Clause, combined with the inherent confusion 34 surrounding what constitutes a “testimonial” disclosure in other areas of federal law, has led to a deep split among the federal appellate courts as to whether the Clause protects against nonevidentiary disclosures of written legislative materials — for example, disclosures made in response to discovery subpoenas or search warrants 35 — or, to the contrary, whether such disclosures are covered only by the evidentiary component of the Clause, and therefore disclosure of such documents is protected only when used for evidentiary purposes. 36

Despite the doctrinal uncertainty, it would appear that the different aspects of the Clause may be best summarized in the following way.

First, the immunity principle of the Clause acts as a jurisdictional bar to legal actions seeking to hold a Member liable, either civilly or criminally, for protected legislative acts. 37

When the claim itself does not require proof of a legislative act, but rather arises from nonlegislative or unprotected activity, the Member is not immune, and the criminal or civil action may go forward. 38

Second, during the course of the litigation, the Member may nonetheless assert the evidentiary privilege to block the introduction of specific evidence reflecting protected legislative acts. 39

Third, the testimonial privilege may be invoked in a variety of circumstances in order to protect the Member from compelled testimony, or in some courts from disclosing documents, about those acts. 40

Viewing the Clause holistically, it becomes apparent that whether a court chooses to address a Speech or Debate case by reference to the general immunity principle, or the evidentiary and testimonial privileges, in some cases the ultimate result may be the same.

For example, a Member may avoid liability that may have otherwise attached to his actions either because the court relies on the Clause’s immunity principle, or because the party initiating the legal action is unable to prove his case without resort to evidence and testimony that is protected by the evidentiary and testimonial privilege components of the clause.
41

33 See Brown & Williamson, 62 F.3d at 418 (“Based on the text of the Constitution, it would seem that the immunity from suit derives from the testimonial privilege, not the other way around.”)

34 See, e.g., Crawford v Washington, 541 U.S. 36, 51-61 (2004) (addressing the meaning of “testimonial” for purposes of the Confrontation Clause); United States v. Hubbell, 530 U.S. 27, 34-46 (2000) (discussing the act of production doctrine and the testimonial privilege arising from the Fifth Amendment privilege against self-incrimination). In a Fifth Amendment case, the Court held that “to be testimonial, an accused’s communication must itself, explicitly or
implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988). As previously mentioned, the Supreme Court has never directly addressed the testimonial privilege arising from the
Clause. Lower federal courts have adopted very different descriptions of what is meant by testimonial, and, in fact, no circuit court has explicitly defined the term “testimonial.” Compare Brown & Williamson, 62 F.3d at 421 (describing “testimonial purposes” as “not for use as evidence against Congress or any of its Members.”) with In re Grand Jury Investigation into Possible Violations of Title 18, 587 F.2d 589, 596 (3d Cir. 1978) (equating the testimonial privilege to “hostile questioning”).

35 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).

36 Fattah, 802 F.3d at 529 (“The Speech or Debate Clause does not prohibit the disclosure of privileged documents. Rather, it forbids the evidentiary use of such documents.”).

37 Eastland, 421 U.S. at 502-03 ("We have long held that, when it applies, the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.”); Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13 (D.C. Cir. 2006) (“The Speech or Debate Clause operates as a jurisdictional bar when ‘the actions upon which [a plaintiff] sought to predicate liability were “legislative acts.”’”) (citing McMillan 412 U.S. at 318) (quoting Gravel, 408 U.S. at 618).

38 Brewster, 408 U.S. at 525.

39 Helstoski, 442 U.S. at 487 (holding that “evidence of a legislative act of a Member may not be introduced by the Government ...”).

40 See “Nondisclosure Privilege: A Continued Circuit Split” infra.

41 See Jay Rothrock, Striking a Balance: The Speech or Debate Clause's Testimonial Privilege and Policing Government Corruption, 24 Touro L. Rev. 739, 751 n. 45 (2008). In this sense, an analogy may arguably be drawn to judicial implementation of the state secrets privilege, an evidentiary privilege that allows the federal government to resist disclosure of information during litigation if there is a reasonable danger that disclosure would harm the national security of the United States. See U.S. v. Reynolds, 345 U.S. 1, 7-8 (1953). Dismissal of a claim based on a valid assertion of the state secrets privilege can either result in an outright bar to the claim, for example when the “very subject matter of the case is a state secret,” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083 (9th Cir. 2010), or after it becomes clear that a plaintiff cannot establish a prima facie case without privileged evidence. Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998).

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

The Core of the Clause: Member Immunity and Component Privileges, concluded ...

As a result of the breadth of these protections, the Clause seemingly makes it more difficult for the executive branch to prosecute Members for unlawful acts committed in the context of legislative activity, including those offenses directly related to corruption. 42

This impact on executive enforcement of the law was fully understood at the time the Clause was adopted, and considered a necessary consequence of protecting legislators from undue influence or intimidation. 43

The Clause does not, however, turn Members into “supercitizens” by providing them with a blanket exemption from legal liability for any and all illegal acts. 44

Rather, the Clause immunizes or protects only a certain class of actions, known as “legislative acts,” that are undertaken as part of the legislative process. 45

Not all actions taken by a Member in the course of his congressional duties are considered legislative acts.

In fact, many acts that may otherwise be considered “official,” in that they relate to governmental duties, are not covered by the protections of the Clause.
46

The Clause protects only those acts that are an “integral part of the deliberative and communicative processes” through which Members engage either in “the consideration and passage or rejection of proposed legislation” or “other matters which the Constitution places within the jurisdiction of either House.” 47

The legislative act limitation and other aspects of the Clause are discussed in greater detail below. 48

42 Helstoski, 442 U.S. at 488 (“[W]ithout doubt the exclusion of such evidence will make prosecutions more difficult.”); Brewster 408 U.S. at 516.

43 Brewster, 408 U.S. at 516-17 (“In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander and even destroy others with impunity, but that was the conscious choice of the Framers ... The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards.”).

44 Id. at 516 (noting that the purpose of the Clause was not “to make Members of Congress super-citizens, immune from criminal responsibility”).

45 Gravel, 408 U.S. at 625.

46 McMillan, 412 U.S. at 313 (“Our cases make perfectly apparent [] that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause.”); United States v. McDade, 28 F.3d 283, 295 (3rd Cir. 1994) (“The Speech or Debate Clause does not immunize every official act performed by a member of Congress.”).

47 Gravel, 408 U.S. at 625.

48 See “What Constitutes a Legislative Act?” infra.

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Supreme Court Interpretations

A series of decisions from the Supreme Court address the general scope of the Clause and elucidate the distinction between legislative acts, such as voting or debating, which are accorded protection under the Clause and are not subject to “inquiry,” 49 and political or other nonlegislative acts, which are not protected by the Clause and therefore may serve as the basis for a legal action. 50

These cases suggest at least three noteworthy themes.

First, despite the text, the protections afforded by the Clause extend well beyond “speeches” or “debates” undertaken by “Senators and Representatives.” 51

Second, otherwise legitimate political interactions external to the legislative sphere — for example, disseminating information outside of Congress — are generally not considered protected legislative acts. 52

Third, the Clause does not immunize criminal conduct that is clearly no part of the “due functioning” of the legislative process. 53

The Supreme Court adopted a broad interpretation of “Speech or Debate” from its first assessment of the Clause in the 1881 case Kilbourn v. Thompson. 54

In Kilbourn, the Court considered whether a civil action could be maintained against Members who were responsible for initiating and approving a contempt resolution ordering an unlawful arrest. 55

The Members defended themselves on the ground that their acts were protected by the Clause. 56

The Court agreed, determining that the Members were not subject to suit for their actions. 57

The Court adopted an interpretation of the Clause that extended protections beyond mere legislative deliberation and argument, holding that “it would be a narrow view of the constitutional provision to limit it to words spoken in debate.” 58

Instead, the Court determined that the Clause applied to “things generally done in a session of the House by one of its members in relation to the business before it,” including the presentation of reports, the offering of resolutions, and the act of voting. 59

Accordingly, the Court concluded that although the arrest itself may have been unlawful, the Members were immune from suit and could not be “brought in question” for their role in approving the resolution “in a court of justice or in any other place,” as that act was protected by the Clause. 60

49 Gravel, 408 U.S. at 616.

50 See, e.g., Id. at 613-29; Brewster, 408 U.S. at 507-29; Johnson, 383 U.S. 174-85; Kilbourn v. Thompson, 103 U.S. 168, 201-05 (1881). Additional Supreme Court cases significantly addressing the Clause include Harlow v. Fitzgerald, 457 U.S. 800, 810-12 (1982); Hutchinson v. Proxmire, 443 U.S. 111, 124-33 (1979); Helstoski, 442 U.S. at 484-94 (1979); Eastland, 421 U.S. at 501-11 (1975); McMillan, 412 U.S. at 311-19 (1973); Powell, 395 U.S. at 501-06 (1969); Tenney v. Brandhove, 341 U.S. 367, 372-79 (1951).

51 Kilbourn, 103 U.S. at 204 (extending the protections of the Clause beyond speeches and debates); Gravel, 408 U.S at 616-17 (extending the protections of the Clause to acts of aides).

52 See Gravel, 408 U.S. at 625-26.

53 See Johnson, 383 U.S. at 172.

54 Kilbourn, 103 U.S. at 200-05.

55 Id. at 200.

56 Id. at 201.

57 In reaching its holding, the Court noted that if the Members had ordered the unlawful arrest “in any ordinary tribunal” they would have been liable for the act. Id. The Court concluded, however, that the Constitution and the Clause make clear that Congress “is not an ordinary tribunal.” Id.

58 Id. at 204.

59 Id.

60 Id. 201.

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Supreme Court Interpretations, continued ...

The Court only rarely addressed the Clause after Kilbourn. 61

It was not until the 1966 case United States v. Johnson that the Court embarked on an early attempt to define the protections afforded by the Clause in the context of a criminal prosecution of a Member. 62

In Johnson, a former Member challenged his conviction for conspiracy to defraud the United States that arose from allegations he had agreed to give a speech defending certain banking interests in exchange for payment. 63

In prosecuting the case, the government relied heavily on the former Member’s motive for giving the speech, introducing evidence that the speech had been made solely to serve private, rather than public, interests. 64

Focusing on the admission of this protected evidence, the Court overturned the conviction.

“However reprehensible such conduct may be,” the Court concluded that a criminal prosecution, the “essence” of which requires proof that “the Congressman’s conduct was improperly motivated,” was “precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.”
65

The opinion noted that the Clause must be “read broadly to effectuate its purposes,” ultimately concluding that the Clause prohibits a prosecution that is “dependent” upon the introduction of evidence of “the legislative acts” of a Member or “his motives for performing them.” 66

Although overturning the conviction, the Court remanded the case to the district court for further proceedings, holding that the government should not be precluded from bringing a prosecution “purged of elements offensive to the Speech or Debate clause” through the elimination of all references to the making of the speech. 67

The Johnson case therefore stands for at least two important propositions.

First, the opinion demonstrated that the government is not prohibited from prosecuting conduct that merely relates to legislative duties, but is not itself a legislative act. 68

When a legislative act is not an element of the offense, the government may proceed with its case by effectively “purg[ing]” the introduction of evidence offensive to the Clause. 69

Second, though not explicitly articulating such a privilege, the opinion impliedly introduced the evidentiary component of the Clause by holding that even though a case may go forward, the Clause may be invoked by Members to bar admission of specific protected evidence. 70

Less than a decade after Johnson, the Supreme Court issued two decisions on the same day in 1972 that established important limitations on the types of actions that are protected by the Clause.

In United States v. Brewster, which involved a Member’s challenge to his indictment on a bribery charge, the Court reaffirmed Johnson and clarified that “a Member of Congress may be prosecuted under a criminal statute provided that the Government’s case does not rely on legislative acts or the motivation for legislative acts.” 71

The Court made clear that the Clause does not prohibit inquiry into illegal conduct simply because it is “related” to the legislative process or has a “nexus to legislative functions,” but rather, the Clause protects only the legislative acts themselves. 72

By adhering to such a limitation, the Court reasoned that the result would be a Clause that was “broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members.” 73

61 See Philip Mayer, An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause, 50 COLUM. J.L. & SOC. PROBS. 229, 233 (2017) (“After Kilbourn, the Supreme Court did not substantively address the Clause until almost a century later.”).

62 Johnson, 383 U.S. at 170-85.

63 Id. at 170-73. The Member also allegedly agreed to “exert influence” over Department of Justice enforcement decisions. Id. at 171. With regard to that aspect of the claim, the Court suggested that an “attempt to influence the Department of Justice” was not legislative. Id at 172

64 Id. at 177.

65 Id. at 180.

66 Id. at 185.

67 Johnson, 383 U.S. at 185.

68 Id. at 185.

69 Id.

70 Id. at 173 (“The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial.”).

71 Brewster, 408 U.S. at 512.

72 Id. at 513, 528.

73 Id. at 525.

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

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Supreme Court Interpretations, continued ...

Brewster also drew an important distinction between legislative and political acts.

The opinion labeled a wide array of constituent services, 74 though “entirely legitimate,” as “political in nature” rather than legislative. 75

As a result, the Court suggested that “it has never been seriously contended that these political matters ... have the protection afforded by the Speech or Debate Clause.” 76

Turning to the terms of the bribery indictment, the Court framed the fundamental threshold question for any prosecution of a Member of Congress as: “whether it is necessary to inquire into how [the Member] spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute.” 77

With regard to bribery, the Court reasoned that because acceptance of the bribe is enough to prove a violation of the statute, there was no need for the government to present evidence that the Member had later voted in accordance with the illegal promise, “for it is taking the bribe, not performance of the illicit compact, that is a criminal act.” 78

Because “taking the bribe is, obviously, no part of the legislative function” and was therefore “not a legislative act,” the government would not be required to present any protected legislative evidence in order to “make out a prima facie case.” 79

In that sense, the Court distinguished the case before it from Johnson.

Whereas the prosecution in Johnson relied heavily on showing the motive for Johnson’s floor speech, the prosecution in Brewster need not prove any legislative act, but only that money was accepted in return for a promise.

Finally, Gravel v. United States exemplifies that communications outside of the legislative process are generally not protected by the Clause. 80

Gravel involved a Speech or Debate challenge to a grand jury investigation into the disclosure of classified documents by a Senator and his aides. 81

After coming into possession of the “Pentagon Papers” — a classified Defense Department study addressing U.S. involvement in the Vietnam War — Senator Mike Gravel disclosed portions of the document at a subcommittee hearing and submitted the entire study into the record. 82

The Senator and his staff had also allegedly arranged for the study to be published by a private publisher. 83

A grand jury subsequently issued a subpoena for testimony from one of Senator Gravel’s aides and the private publisher. 84

Senator Gravel intervened to quash the subpoenas. 85

74 These unprotected activities include “a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.” Id. at 512. Similarly, in Hutchinson v. Proxmire, the Court held that informing the public of legislative activities is not protected by the Clause. 443 U.S. 111, 133 (1979) (“Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process. As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause.”).

75 Brewster, 408 U.S. at 512.

76 Id.

77 Id. at 526.

78 Id.

79 Id. at 525.

80 Gravel, 408 U.S. at 622-27. Gravel also exemplifies that the Speech or Debate protections can extend to a Member’s
personal aides. Id. at 616-22.

81 Id. at 608-10.

82 Id. at 608.

83 Id. at 610.

84 Id. at 608.

85 Id. at 609.

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

Post by thelivyjr »

Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Supreme Court Interpretations, concluded ...

The Gravel opinion began by reasoning that “because the claim is that a Member’s aide shares the Member’s constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime.” 86

In addressing the scope of the Senator’s protections, the Court implied the existence of the testimonial component of the Clause, noting that the protections of the Clause protect a Member from compelled questioning. 87

The Court did so by stating, without further discussion, that it had “no doubt” that “Senator Gravel may not be made to answer — either in terms of questions or in terms of defending himself from prosecution — for the events that occurred at the subcommittee meeting.”

The Gravel opinion also drew a clear line of demarcation between protected legislative acts and other unprotected acts not “essential to the deliberations” of Congress. 88

Although the Senator was protected for his actions at the hearing, the Senator’s alleged arrangement for private publication of the Pentagon Papers was not “part and parcel of the legislative process” and was therefore not protected by the Clause. 89

In reaching this determination, the Court established a working definition of “legislative act” that remains applicable today, holding that a legislative act is an: integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. 90

Private publication, as opposed to publication in the record, was “in no way essential to the deliberations of the Senate.” 91

Thus, the Clause provided no immunity from testifying before the grand jury relating to that arrangement. 92

86 Gravel, 408 U.S. at 613. Speech or Debate Clause protections for aides are discussed below.

87 Id. at 626. Brown & Williamson, 62 F.3d at 418 (holding that “the Supreme Court recognized the testimonial privilege in Gravel v. United States”). Gravel involved questioning before a grand jury. 408 U.S. at 613. The D.C. Circuit has suggested, however, that the prohibition extends to questions asked “in a deposition, on the witness stand, and so forth ...” Fields v. Office of Johnson, 459 F.3d 1, 14 (D.C. Cir. 2006).

88 Gravel, 408 U.S. at 625.

89 Id.

90 Id. at 625.

91 Gravel, 408 U.S. at 625.

92 Id. at 626.

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