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The Speech or Debate Clause: Recent Developments
Order Code RL33668
The Speech or Debate Clause:
Recent Developments
Updated April 17, 2007
Todd B. Tatelman
Legislative Attorney
American Law Division The Speech or Debate Clause: Recent Developments
Summary
Members of Congress have immunity for their legislative acts under Article I,
§ 6, cl. 1, of the Constitution, which provides in part that for any speech or debate
in either House, [Senators and Representatives] shall not be questioned in any other
place. Even if their actions are within the scope of the Speech or Debate Clause or
some other legal immunity, Members of Congress remain accountable to the House
of Congress in which they serve and to the electorate. In cases in which the clause
applies, the immunity is absolute and cannot be defeated by an allegation of an
improper purpose or motivation. When applicable, the clause affords not only
substantive immunity but also a complementary evidentiary privilege. In other
words, the clause provides both immunity from liability (in civil and criminal
proceedings) and a testimonial privilege.
Recently, two separate and previously unresolved issues have arisen with
respect to the scope and application of the Speech or Debate Clause. The first
involves the execution of a search warrant on the Rayburn House Office of
Representative William J. Jefferson. The search was conducted as part of the FBIs
investigation of Representative Jefferson to determine whether he and other persons
were involved in criminal activity, including bribery and other felonies. Such an
action by the executive branch appears to be unprecedented in U.S. history and raises
serious and significant constitutional questions with respect to potential intimidation
and diminution of the independence and autonomy of the legislative branch and its
integral legislative functions at which the Speech or Debate Clause is directed.
Although Representative Jefferson lost his initial legal challenge to have the seized
documents and materials returned before the United States District Court for the
District of Columbia, the Court of Appeals for the District of Columbia (D.C.
Circuit) remanded the case and instructed the lower court to provide Representative
Jefferson with copies of the materials and a chance to make his claims of privilege
ex parte and in camera. Moreover, the Court of Appeals issued an injunction
preventing the Department of Justice (DOJ) from reviewing any of the seized
materials until the question of privilege has been settled by the courts.
The second Speech or Debate Clause question on which the courts have recently
issued opinions concerns claims of employment discrimination brought against
Members offices pursuant to the Congressional Accountability Act of 1995. A 1986
decision of the D.C. Circuit had held that such suits were barred by the Speech or
Debate Clause if the employees duties were directly related to the due functioning
of the legislative process. The Tenth Circuit Court of Appeals and the D.C. Circuit,
however, recently ruled that the Speech or Debate Clause does not automatically
prevent such suits from proceeding. Both decisions, however, appear to have left
unanswered significant questions relating to the use and introduction of evidence that
may be related to legislative acts and, therefore, protected by the Speech or Debate
Clause. Such questions could ultimately frustrate the ability of potential plaintiffs
to pursue their claims.
This report examines these recent developments in Speech or Debate Clause
jurisprudence and will be updated as events warrant. Contents
Constitutional Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Searches and Seizures of Congressional Offices . . . . . . . . . . . . . . . . . . . . . . 4
Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
General Legal Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Court of Appeals Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Employment and Personnel Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1
U.S.

C
ONST
. Art. I, § 6, cl. 1.
2
See e.g., United States v. Helstoski, 442 U.S. 477 (1979) (excluding evidence of legislative
action in a criminal prosecution of a Member of the House of Representatives); Eastland v.
United States Servicemens Fund, 421 U.S. 491 (1975) (dismissing civil suit to enjoin a
Senate Committee investigation); Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)
(dismissing a civil conspiracy claim against members of a Senate committee); United States
v. Johnson, 383 U.S. 169 (1966) (reversing criminal conspiracy conviction based on Speech
or Debate Clause immunity).
3
See generally, Gravel v. United States, 408 U.S. 606 (1972).
4
Id. at 615-616; see also Dennis v. Sparks, 449 U.S. 24, 30 (1980) (stating we have held
that Members of Congress need not respond to questions about their legislative acts);
Miller v. Transamerica Press, Inc., 709 F.2d 524, 528-29 (9th Cir. 1983) (denying a motion
to compel testimony from a former congressmen).
5
See e.g., Maddox v. Williams, 855 F.Supp. 406, 413 (D.D.C. 1994) (stating that the
Speech or Debate Clause stands as an insuperable obstacle to [a partys] attempt to acquire
by compulsion documents or copies of documents in the possession of the Congress) affd
sub nom. Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995);
see also Minpeco, S.A. v. Conticommodity Services, 844 F.2d 856, 859-61 (D.C. Cir. 1988)
(applying a broad reading of the Clause to protect the integrity of the legislative process
itself); Hearst v. Black, 87 F.2d 68, 71-2 (D.C. Cir. 1936) (stating that [i]f a court could
say to the Congress that it could use or could not use information in its possession, the
independence of the Legislature would be destroyed and the constitutional separation of the
powers of government invaded).
6
See Powell v. McCormack, 395 U.S. 486, 502 (1969) (citing 5 D
EBATES ON THE
F
EDERAL
C
ONSTITUTION
406 (J. Elliot, ed. 1876); 2 R
ECORDS OF THE
F
EDERAL
C
ONVENTION OF
1787,
246 (M. Farrand, rev. ed. 1966)).
The Speech or Debate Clause:
Recent Developments
Constitutional Background
The Constitution provides that for any speech or debate in either House,
[Senators and Representatives] shall not be questioned in any other place.
1
Commonly referred to as the Speech or Debate Clause, this language affords
Members of Congress immunity from certain civil and criminal suits relating to their
legislative acts.
2
In addition, the clause also provides a testimonial privilege
3
that
extends not only to oral testimony about privileged matters
4
but to the production of
privileged documents.
5
Adopted at the Constitutional Convention without debate or opposition,
6
the
historic rationale and purpose of the Speech or Debate Clause has been clearly
understood to protect the independence and integrity of members of the legislature CRS-2
7
United States v. Johnson, 383 U.S. 169, 181 (1966).
8
Id. at 178 (internal citations omitted); see also Tenney v. Brandhove, 341 U.S. 367, 372
(1951) (stating that:
The privilege of legislators to be free from arrest or civil process for what they
do or say in legislative proceedings has taproots in the Parliamentary struggles
of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing
independence from the Crown, its statement of the privilege grew stronger. In
1523, Sir Thomas More could make only a tentative claim. ... In 1668, after a
long and bitter struggle, Parliament finally laid the ghost of Charles I, who had
prosecuted Sir John Elliot and others for seditious speeches in Parliament)
(internal citations omitted).
9
United States v. Brewster, 408 U.S. 501, 507 (1972); see also Kilbourn v. Thompson, 103
U.S. 168, 203 (1881).
10
Johnson, 383 U.S. at 181.
11
Eastland, 421 U.S. at 502.
12
Johnson, 383 U.S. at 184-85; Gravel, 408 U.S. at 616; see also Cochran v. Couzens, 42
F.2d 783 (D.C. Cir 1929), cert. denied, 282 U.S. 874 (1930).
13
Powell v. McCormack, 395 U.S. 486, 505 (1969) (stating that [t]he purpose of the
(continued...)
from intimidation by both the executive branch and the judiciary that is, to help
ensure that the legislature would be a co-equal, independent branch of government
by prevent[ing]