The Speech or Debate Clause: Recent Developments

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

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 FBI’s 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, the Court of Appeals for the
District of Columbia (D.C. Circuit) has since held the search to have been a violation of the
Speech or Debate Clause. The court left in place an order instructing 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 ordered that the Department of Justice
(DOJ) continue to refrain from reviewing any of the seized materials until the questions of
privilege have been settled by the lower court.
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. Both the Tenth Circuit Court of Appeals and the D.C.
Circuit have recently ruled that the Speech or Debate Clause does not automatically prevent such
suits from proceeding. In addition, an appeal to the Supreme Court has been rejected on the
grounds that the Court lacked a jurisdictional basis to decide the case. These 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.

Constitutional Background........................................................................................................1
Searches and Seizures of Congressional Offices......................................................................3
Factual Background............................................................................................................3
General Legal Arguments...................................................................................................5
District Court Proceedings..................................................................................................6
Court of Appeals Proceedings.............................................................................................9
Employment and Personnel Actions.......................................................................................12
Author Contact Information..........................................................................................................17

The Constitution provides that “for any speech or debate in either House, [Senators and ¹
Representatives] shall not be questioned in any other place.” Commonly referred to as the
Speech or Debate Clause, this language affords Members of Congress immunity from certain ²
civil and criminal suits relating to their legislative acts. In addition, the clause also provides a ³⁴
testimonial privilege that extends not only to oral testimony about privileged matters but to the ⁵
production of privileged documents.
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 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] intimidation [of legislators] by the executive and accountability ⁷
before a possibly hostile judiciary.” In explaining the purposes of the Speech or Debate Clause,
the Supreme Court has traced the ancestry of the clause to the English Bill of Rights of 1689,
which was “the culmination of a long struggle for parliamentary supremacy”:
^Behⁱⁿ^d^t^h^e^s^{e s}ⁱ^m^p^l^e^ph^ras^e^s^lⁱ^es^{a h}ⁱ^s^t^or^y^of^conf^lⁱ^c^t^bet^w^eeⁿ^t^h^{e C}^o^mm^oⁿ^s^aⁿ^{d t}^h^{e T}^u^dor
^an^d^Stu^a^r^t^m^oⁿ^a^r^c^h^s^d^u^rⁱⁿ^g^wh^ich^su^cce^ssi^v^e^m^oⁿ^a^r^c^h^s^u^tili^zed^th^e^c^rⁱ^mⁱⁿ^a^l^an^d^cⁱ^vⁱ^l^l^a^w^to
^su^p^p^r^{ess a}ⁿ^dⁱⁿ^ti^mⁱ^d^a^{te cr}^itic^{al leg}ⁱ^s^l^ato^r^{s. Sin}^{ce t}^h^{e Glo}^rⁱ^o^u^s^Re^v^o^lu^tioⁿⁱⁿ^B^r^itain^{, an}^d
^t^h^r^o^u^gho^ut^Uⁿⁱ^t^e^d^St^a^t^e^s^hi^s^t^o^r^y^,^t^h^e^p^rⁱ^vⁱ^l^e^ge^ha^{s b}^e^eⁿ^r^e^c^o^gni^z^e^d^a^s^aⁿⁱ^m^p^o^r^t^a^nt⁸
^p^r^o^t^ectioⁿ^o^f^th^{e in}^d^e^p^eⁿ^d^eⁿ^c^e^an^dⁱⁿ^te^g^r^it^y^o^f^th^{e le}^gⁱ^slatu^r^e.

¹^U.^S^.^C^ONS^T^{. A}^r^{t. I}^,^§^{6, c}^l^.^1.
²^S^{ee e.}^g^.^,^Unⁱ^t^e^{d S}^t^a^t^{es v.}^Hel^s^t^o^s^kⁱ^,⁴⁴²^U.^S^.⁴⁷^{7 (19}⁷⁹⁾^(excl^u^dⁱ^{ng evi}^d^en^{ce o}^f^l^e^gi^sl^atⁱ^v^{e act}ⁱ^oⁿⁱⁿ^{a cri}^mⁱⁿ^al
^pr^os^e^c^u^ti^on^of^a^Me^m^b^e^r^of^the^Hous^e^of^R^e^pr^e^s^eⁿ^ta^tiv^e^s⁾^;^E^a^st^l^and^v.^Unⁱ^t^ed^S^t^a^t^es^S^e^rvi^cemen^{’s F}^uⁿ^d^,⁴²^{1 U.}^S^.⁴⁹¹
⁽¹⁹^{75) (}^d^ismⁱ^ssing^cⁱ^v^{il suit to e}ⁿ^joⁱⁿ^a^Se^na^te^Com^m^itte^e^inv^e^stiga^tion);^D^o^mb^ro^wski^v.^E^a^st^l^a^nd^,³⁸⁷^U^.^S.⁸²^,⁸⁵
⁽¹⁹^{67) (}^d^ismⁱ^ssing^a^cⁱ^v^{il c}^onspir^a^c^y^c^l^aⁱ^m^a^g^aⁱ^nst^m^e^m^b^e^r^{s o}^f^a^Se^na^te^c^o^m^m^itte^e⁾^;^Uⁿ^ite^{d S}^t^ate^s^v^.^J^o^hⁿ^s^oⁿ^,³⁸³
^U.^S^.¹⁶^{9 (19}⁶⁶⁾^(reversiⁿ^{g cri}^mⁱⁿ^al^coⁿ^s^pⁱ^racy^coⁿ^vⁱ^c^tⁱ^oⁿ^b^a^sed^{on S}^p^eech^o^r^Deb^a^t^e^Cl^au^{se i}^m^m^uⁿⁱ^t^y^).
³^Se^e^ge^ne^r^a^lly^,^G^r^av^e^l^v^.^Uⁿ^ite^{d S}^t^ate^s^{, 4}⁰⁸^U^.^S.⁶⁰^{6 (}¹⁹⁷²⁾^.
⁴^Id^.^a^t⁶¹^5-⁶¹⁶^;^s^e^e^als^o^D^e^nnis^v^.^Sp^ar^k^s^{, 4}^{49 U}^.^S.^24,³⁰⁽¹⁹⁸⁰⁾⁽^s^ta^ting^“^w^e^ha^ve^he^{ld tha}^t^Me^m^b^e^r^s^of^C^ong^r^e^s^s
ⁿ^eed^no^t^respoⁿ^d^t^o^qu^estⁱ^oⁿ^s^ab^ou^t^t^h^ei^{r l}^e^gi^sl^atⁱ^v^{e act}^s”);^M^ille^{r v}^.^Traⁿ^same^ric^a^Pre^{ss, Inc}^.^,⁷^{09 F}^.^{2d 52}^{4, 52}^8-²⁹^th
⁽⁹^Cⁱ^r^.¹⁹⁸³⁾⁽^d^eⁿ^yⁱ^ng^a^m^o^tion^{to c}^o^m^p^e^l^te^s^tim^ony^f^r^o^m^a^f^o^r^m^e^r^Me^m^b^e^r^of^C^ong^r^e^s^s⁾^.
⁵^Se^e^e^.^g.,^M^a^d^dox^v^.^W^illi^ams^,⁸⁵⁵^F^.^S^u^p^p^.⁴⁰⁶^,⁴¹³^(D.^D^.^C^.¹⁹⁹⁴⁾^(st^a^tⁱⁿ^{g t}^h^at^“t^h^e^S^p^eech^o^r^Deb^a^t^e^Cl^au^{se st}^an^d^s
^a^s^aⁿ^ins^u^pe^r^a^ble^o^b^s^t^a^c^l^e^to^[^a^p^a^r^t^y^’^s^]^a^tte^m^p^{t to a}^c^quir^e^by^c^o^m^pulsⁱ^on^doc^um^eⁿ^ts^or^c^opie^s^of^doc^um^eⁿ^ts^{in the}
^pos^s^e^s^sⁱ^on^of^the^C^o^ng^r^e^s^s^”⁾^aff’^{d s}^u^{b n}^o^m^.^Br^{own &}^W^illiamson^Tob^a^c^c^o^Cor^p^{. v}^.^W^ill^iams^{, 62 F.}^{3d 40}⁸⁽^D^.C^.^Cⁱ^r^.
¹⁹⁹⁵⁾^;^{see al}^so^Mi^np^eco^,^S^.^A^.^v.^Coⁿ^tⁱ^c^o^m^m^o^dⁱ^t^y^S^e^rvi^ces^{, 84}^{4 F.}^2d⁸⁵^6,⁸⁵^9-⁶¹⁽^D^.C^.^Cⁱ^r^.¹⁹⁸⁸⁾⁽^a^pplyⁱ^ng^a^br^oa^d
^readⁱⁿ^{g o}^f^t^h^{e Cl}^au^{se t}^o^p^r^o^t^ect^t^h^{e “i}ⁿ^t^egri^t^y^o^f^t^h^{e l}^e^gi^sl^atⁱ^v^{e p}^r^o^{cess i}^t^s^el^f”);^Hea^{rst v.}^Bla^c^k^{, 8}⁷^F^.^2d^68,⁷¹^-2^(D^.C.
^Cⁱ^r^.¹⁹³⁶⁾⁽^s^ta^ting^t^h^a^t^“^[ⁱ^]^f^a^c^o^u^r^{t c}^oul^{d s}^a^y^{to the}^C^o^ng^r^e^s^s^tha^tⁱ^t^c^oul^d^us^e^or^c^o^uldⁿ^o^t^us^e^inf^o^r^m^a^{tion i}ⁿ^its
^pos^s^e^s^sⁱ^on,^theⁱ^nde^pe^nde^nc^e^of^the^L^e^gⁱ^s^l^a^t^ur^e^w^ould^be^de^s^t^r^o^y^e^{d a}ⁿ^d^the^c^ons^tit^uti^ona^{l s}^e^pa^r^a^ti^oⁿ^of^the^pow^e^r^s^of
^go^verⁿ^m^eⁿ^tⁱⁿ^vad^e^d^”⁾^.
⁶^S^{ee P}^o^wel^l^v.^McCo^rma^c^k^{, 39}⁵^U^.^{S. 4}⁸⁶^,⁵⁰²⁽¹⁹⁶⁹⁾⁽^c^iti^ng^{5 D}^E^B^AT^E^S^{ON T}^H^E^F^ED^ER^A^L^C^ONS^T^I^T^U^T^I^ON^{406 (}^J^{. El}^liot^,
^ed^.¹⁸⁷⁶⁾^;²^R^E^C^ORDS^OF^T^H^E^F^ED^E^R^A^L^C^ONV^E^N^T^I^{ON O}^F^1787,²⁴^{6 (}^M^{. Fa}^r^r^aⁿ^d^{, r}^e^v^.^e^d^.¹⁹⁶⁶⁾⁾^.
⁷^Uⁿ^ite^d^St^ate^s^v^.^J^o^hⁿ^s^o^n,³⁸³^U.S^.¹⁶^9,¹⁸^{1 (}¹⁹⁶⁶⁾^.
⁸^Id^.^a^t¹⁷^{8 (i}^nte^r^na^{l c}^ita^ti^ons^om^itte^d);^s^e^e^als^o^Te^nne^y^v^.^Br^an^dh^ov^e^{, 34}^{1 U}^.^S^.³⁶⁷^,³⁷²⁽¹⁹⁵¹⁾⁽^s^ta^ti^ng^tha^t:
^T^h^e^pr^iv^ile^g^e^of^legⁱ^s^l^a^t^or^s^{to be}^f^r^e^e^f^r^o^m^a^r^r^e^s^t^or^cⁱ^v^{il pr}^oc^e^s^s^f^o^r^w^h^a^t^the^y^{do or}^s^a^yⁱⁿ
^l^e^gi^sl^atⁱ^v^{e p}^r^o^ceedⁱⁿ^{gs h}^a^{s t}^a^p^r^o^o^t^sⁱⁿ^t^h^e^P^a^rlⁱ^a^m^eⁿ^t^ar^y^st^ru^ggl^e^s^o^f^t^h^{e S}ⁱ^xt^een^t^h^and^S^e^ven^t^een^t^h
^Cen^t^u^rⁱ^e^s.^A^s^P^a^rlⁱ^a^m^eⁿ^t^achⁱ^e^ve^dⁱⁿ^creasiⁿ^{g i}ⁿ^d^e^p^e^nd^en^{ce f}^r^o^m^t^h^{e Cro}^wⁿ^,ⁱ^t^s^st^at^em^en^t^o^f^t^h^e
^priv^ile^g^e^g^r^e^w^s^t^rong^e^r^{. In 15}²³^,^{Sir T}^hom^a^s^More^c^ould^m^a^ke^onl^y^a^te^nta^tiv^e^c^l^aⁱ^m^.^{... In}¹⁶⁶⁸^,
^a^f^te^r^a^long^a^{nd bi}^tte^r^s^t^r^u^g^g^l^e^,^P^a^r^lia^m^e^{nt f}ⁱ^na^lly^la^{id the}^g^hos^{t of}^C^h^a^r^le^s^I^,^w^{ho ha}^d^pr^os^e^c^u^te^d
^{Sir Jo}^hⁿ^E^llio^{t an}^d^o^t^h^e^{rs f}^o^{r “sed}^itio^u^s^{” s}^p^eech^esⁱⁿ^P^a^rliam^eⁿ^t^{) (in}^t^ern^a^{l citati}^oⁿ^s^o^m^itted⁾^.

In addition, the Supreme Court has recognized that the clause was not intended simply “for the
personal or private benefit of Members of Congress, but to protect the integrity of the legislative ⁹
process by insuring the independence of individual legislators.” The Court has also expressly
noted the function of the Speech or Debate Clause as serving the interests of separation of
powers: “In the American governmental structure the [C]lause serves the additional function of ¹⁰
reinforcing the separation of powers so deliberately established by the Founders.” Moreover, the
Court has “without exception ... read the Speech or Debate Clause broadly to effectuate its ¹¹
purposes.”
The Supreme Court’s interpretations and holdings in cases involving the Speech or Debate Clause ¹²
indicate absolute protection for Members when speaking on the House or Senate floor, ¹³¹⁴
introducing and voting on bills and resolutions, preparing and submitting committee reports, ¹⁵
acting at committee meetings and hearings, and conducting investigations and issuing ¹⁶
subpoenas. Conversely, the Court has made clear that the Speech or Debate Clause does not ¹⁷
protect criminal conduct, such as taking a bribe, which is not a part of the legislative process. In
addition, it appears that the clause provides no protection for what the Court has deemed ¹⁸
“political” or “representational” activities, such as direct communications with the public, ¹⁹²⁰²¹²²
speeches outside of Congress, newsletters, press releases, private book publishing, or even

⁹^Unⁱ^t^e^d^S^t^a^t^{es v.}^B^r^ewst^er^,⁴⁰⁸^U.S^.⁵⁰^1,⁵⁰^{7 (}¹⁹⁷²⁾^;^s^e^e^als^o^K^ilb^ourⁿ^v^.^T^hom^ps^on^,¹^{03 U}^.^S.¹⁶^8,²⁰³⁽¹⁸⁸¹⁾^.
¹⁰^J^ohns^on^{, 3}^{83 U}^.^{S. a}^t¹⁸^1.
¹¹^Eastl^aⁿ^d^,⁴²^{1 U}^.^S.^a^t⁵⁰²^.
¹²^J^ohns^on^{, 3}^{83 U}^.^{S. a}^t¹⁸^4-⁸⁵^;^Gr^a^vel^{, 4}^{08 U}^.^{S. a}^t⁶¹^6;^{see a}^l^s^o^Coch^raⁿ^v.^C^o^u^z^en^s^,⁴²^F.^2d⁷⁸^{3 (}^D^.^C^.^Cⁱ^r¹⁹²⁹⁾^,
^cert^.^d^eⁿⁱ^ed^{, 28}²^U^.^{S. 87}⁴⁽¹⁹³⁰⁾^.
¹³^Po^{well v. M}^c^Co^rma^c^k^,³⁹^{5 U}^.^S.⁴⁸⁶^{, 5}⁰⁵⁽¹⁹⁶⁹⁾⁽^s^ta^ti^ng^tha^t^“^[^t^]^h^e^pur^p^o^s^e^of^the^pr^ote^c^tⁱ^{on a}^f^f^o^r^d^e^d^le^gⁱ^s^l^a^t^or^s^is
^{... t}^oⁱⁿ^s^u^re^t^h^a^t^le^gⁱ^s^l^a^t^ors^a^r^e^not^dis^t^ra^c^t^e^d^f^r^om^{or hin}^d^e^r^e^dⁱⁿ^t^h^e^pe^rf^or^m^a^nc^e^of^theⁱ^{r le}^gⁱ^s^l^a^tiv^e^ta^s^k^s^b^y^be^ing
^c^a^lle^{d int}^o^c^our^{t t}^o^de^f^e^{nd t}^h^eⁱ^r^a^c^tions⁾^;^Kⁱ^lb^ourⁿ^{, 1}⁰³^{U.S. a}^t²⁰⁴^(sta^ting^tha^t^“^[^t^]^he^re^a^s^on^of^the^r^u^le^{is a}^s^f^o^rc^ible
^{in its a}^p^plic^a^tⁱ^{on t}^o^w^r^itte^{n re}^p^o^rt^{s pre}^s^eⁿ^te^{d i}ⁿ^tha^t^b^ody^by^{its c}^o^m^m^itte^e^s^{, to re}^soluti^ons^of^f^e^r^e^{d, .}^{.. a}ⁿ^d^to^the^a^c^t^of
^v^o^ting^,^..^{. ”}⁾^;^{see a}^l^{so F}^l^et^ch^{er v.}^P^eck^{10 U}^.^S.⁽⁶^C^r^aⁿ^c^h⁾^87,¹^{30 (}¹⁸¹⁰⁾⁽^d^e^c^liniⁿ^g^{to e}^x^a^m^ine^the^m^o^tiv^es^of^s^t^a^t^e
^le^gⁱ^s^l^a^t^or^s^w^{ho w}^e^r^e^a^lle^ge^dly^br^ibe^d^f^o^r^theⁱ^r^v^o^te^s⁾^.
¹⁴^Doe^v^.^M^c^M^illan^{, 41}²^U^.^{S. 30}⁶⁽¹⁹⁷³⁾^;^K^ilb^ourⁿ^,¹⁰^{3 U}^.^S.^a^t²^04.
¹⁵^S^{ee i}^d^.^;^{see a}^l^so^Gr^a^vel^{, 4}^{08 U}^.^S^.⁶²^8-^29.^Iⁿ^a^d^diti^on^{, s}^o^m^e^low^e^r^f^e^de^r^a^{l c}^our^ts^ha^v^e^a^l^s^o^he^{ld t}^h^a^t^the^C^l^a^u^s^e^ba^r^s
^the^use^of^e^v^ideⁿ^c^e^of^a^Me^m^b^e^r^’^s^c^o^m^m^itte^e^m^e^m^b^e^r^ship.^C^o^m^p^a^r^e^Uⁿ^ite^{d S}^t^ate^s^v^.^Swⁱⁿ^dal^l^,⁹⁷¹^F^.^2d¹⁵³¹⁽¹¹^th^th
^Cⁱ^r^.¹⁹⁹¹⁾^,^r^e^he^arⁱⁿ^g^de^nie^d^{, 98}⁰^F.2^d¹⁴⁴⁹⁽¹¹^Cⁱ^r^.¹⁹⁹²⁾^w^ith^Uⁿ^ite^{d State}^s^v^.^M^c^D^ade^,²⁸^F.^3d²⁸^{3 (}^{3d C}ⁱ^r^.¹⁹⁹⁴⁾^,
^cert^.^d^eⁿⁱ^ed^{, 51}⁴^U^.^{S. 10}⁰³⁽¹⁹⁹⁵⁾^.
¹⁶^Se^e^E^a^st^l^a^nd^v.^Uⁿⁱ^t^e^d^S^t^at^{es S}^e^rvi^cemen^{’s F}^uⁿ^d^,⁴^{21 U}^.^S.⁴⁹^{1 (}¹⁹⁷⁵⁾^;^{see a}^l^{so T}^eⁿⁿ^{ey v.}^B^r^aⁿ^d^hove^{, 341}^U^.^S.³⁶⁷
⁽¹⁹⁵¹⁾^(ref^u^siⁿ^g^t^o^exa^mⁱⁿ^{e m}^o^tⁱ^{ves o}^f^st^at^e^legⁱ^s^l^a^t^or^{in s}^u^m^m^oni^ng^w^itne^{ss to he}^a^r^ing⁾^.
¹⁷^S^{ee B}^r^ewst^er^{, 40}^{8 U}^.^S.^a^t⁵^26;^{see a}^l^so^Uⁿⁱ^t^e^d^S^t^at^{es v.}^Hel^s^t^o^ski^,⁴⁴²^U^.^S.⁴^77,⁴^{89 (}¹⁹⁷⁹⁾⁽^h^oldiⁿ^g^tha^t^e^v^ideⁿ^c^e
^can^b^eⁱⁿ^t^r^o^d^u^ced^regardⁱⁿ^{g co}^rr^up^t^agree^m^en^t^s^oⁿ^t^h^{e b}^a^si^{s t}^h^at^“pro^mⁱ^{ses b}^y^{a M}^e^m^b^{er t}^o^p^e^rf^o^r^m^an^actⁱⁿ^t^h^{e f}^u^t^u^re
^{are n}^o^t^l^e^gi^sl^atⁱ^v^{e act}^s”);^{but se}^e^Doe^v^.^M^c^M^illan^,⁴¹^{2 U}^.^S^.³⁰⁶^,³^12-^{13 (}¹⁹⁷³⁾⁽^s^ta^ting^tha^t^“^C^ong^r^e^s^s^m^e^{n a}^{nd the}ⁱ^r
^aⁱ^de^{s a}^r^e^im^m^une^f^r^o^m^lia^bility^{for the}ⁱ^r^a^c^{tions w}^ithiⁿ^t^h^e^‘le^g^isla^tiv^e^sphe^re^{’ e}^v^eⁿ^tho^u^g^h^t^h^eⁱ^{r c}^oⁿ^duc^t,^if^pe^rf^or^m^e^d
^{in o}^t^he^r^t^h^aⁿ^le^gⁱ^s^l^a^tiv^e^c^onte^x^ts^,^w^{ould in}^its^e^l^f^be^unc^ons^tit^uti^ona^{l or}^othe^r^w^is^e^c^ontr^a^r^y^{to c}^r^im^{inal or}^cⁱ^v^{il s}^t^a^t^u^t^e^s^”⁾^.
¹⁸^S^{ee B}^r^ewst^er^{, 40}^{8 U.S.}^a^t⁵¹²^(st^a^ting^tha^t^“^[^a^]^lth^oug^h^the^s^e^a^r^e^eⁿ^tire^l^y^le^g^iti^m^a^te^a^c^tiv^itie^{s, the}^y^a^r^e^polit^ic^a^lⁱⁿ
ⁿ^a^t^u^{re rat}^h^{er t}^h^an^l^e^gi^sl^atⁱ^v^e,ⁱⁿ^t^h^{e sen}^s^{e t}^h^at^t^e^rm^h^a^{s b}^een^u^s^ed^b^y^t^h^{e Co}^u^r^tⁱⁿ^p^rⁱ^o^r^cases.^Bu^tⁱ^t^h^a^{s n}^e^{ver b}^een
^seri^o^u^s^l^y^coⁿ^t^en^d^e^d^t^h^at^t^h^{ese p}^o^lⁱ^tⁱ^cal^m^a^t^t^e^rs,^h^o^w^e^v^{er ap}^p^r^o^p^rⁱ^a^t^e^,^h^a^{ve t}^h^{e p}^r^ot^ectⁱ^o^{n aff}^o^rd^ed^b^y^t^h^{e S}^p^eech^o^r
^D^e^ba^te^Cla^u^s^e^.”^).
¹⁹^Id^.
²⁰^Id^.
²¹^H^u^tc^hi^ns^on^v^.^Pr^ox^mⁱ^r^e^,⁴⁴^{3 U}^.^S^.¹¹^{1 (}¹⁹⁷⁹⁾^.
²²^Gra^vel^{, 40}^{8 U}^.^{S. a}^t⁶²^5.

the distribution of official committee reports outside the legislative sphere.²³ According to the
Court, these types of activities are not covered because they are not “an integral part of the
deliberative and communicative processes” by which Members participate in legislative ²⁴
activities. Finally, it appears that the clause protects certain contacts by Members with the
executive branch, such as investigations and hearings related to legislative oversight of the
executive, but does not protect others, such as assisting constituents in “securing government ²⁵
contracts” and making “appointments with government agencies.” The clause’s application to
other types of contact by Members with the executive, especially informal communications from
Members to officials of the executive branch, even if arguably in the course of the oversight ²⁶
process, remains uncertain.
The application for, receipt of, and ultimate execution by the Department of Justice (DOJ) of a
search warrant for the Rayburn House Office of Representative William J. Jefferson has raised
significant constitutional questions about the application and scope of the immunity provided by
the Speech or Debate Clause.
On May 20, 2006, DOJ agents and the Federal Bureau of Investigation (FBI) executed a search
warrant at the congressional offices in the Rayburn Building of Representative William J. ²⁷
Jefferson. The search had been authorized by a warrant issued by Chief Judge Thomas Hogan of
the United States District Court for the District of Columbia on May 18, 2006. The search lasted
approximately 18 hours and, according to subsequently filed court documents, resulted in the
seizure of two boxes of paper records and electronic copies of the contents of every computer
hard drive in the Representative’s office. The General Counsel of the House of Representatives
and Representative Jefferson’s private counsel sought entry to the offices to oversee the search ²⁸
but were prohibited from doing so by the agents.

²³^Doe^v^.^M^c^M^illan^,⁴¹^{2 U}^.^S.³⁰^{6 (}¹⁹⁷³⁾^.^Iⁿ^Do^e^,^t^h^{e C}^o^u^r^t^h^e^l^d^t^h^at^t^h^{e act}ⁱ^oⁿ^s^o^f^t^h^{e M}^e^m^b^ers,^t^h^ei^r^st^aff^s^an^d^a
^c^ons^ulta^{nt i}ⁿ^pr^e^p^a^r^ing^a^c^o^m^m^itte^e^r^e^por^{t w}^e^r^e^pr^ote^c^t^e^d^{. O}ⁿ^r^e^m^a^{nd, t}^h^e^dis^t^rⁱ^c^t^c^our^{t g}^r^aⁿ^te^{d t}^h^e^mⁱ^m^m^unit^y^{on the}
^ba^sⁱ^s^tha^t^t^h^e^r^e^ha^d^be^eⁿ^q^u^ite^lⁱ^m^ite^{d public}^dis^t^rⁱ^buti^oⁿ^of^the^r^e^por^t.^Se^e^Doe^v^.^M^c^M^illaⁿ^,³⁷^{4 F.}^Su^pp.¹³¹³
⁽^D^.D^.C^{. 1}⁹⁷⁴⁾^.^T^h^e^D^.^C^.^Cⁱ^r^c^{uit s}^ubs^e^q^ue^ntly^uphe^l^d^t^h^e^c^l^aⁱ^m^ofⁱ^m^m^unit^y^a^s^{to the}^P^u^blic^Pr^inte^r^a^{nd S}^upe^rⁱ^nte^nde^nt
^of^D^o^c^u^m^e^nts^.^Se^e^Doe^v^.^M^c^M^illan^{, 56}^{6 F.2}^d⁷¹³⁽^D^.C^.C^ir^.¹⁹⁷⁷⁾^,^cert^.^d^eⁿⁱ^ed^,⁴^{35 U}^.^S.⁹⁶^{9 (}¹⁹⁷⁸⁾^{. T}^h^e^D^.^C^.
^Circ^uit,^how^e^v^e^r^{, e}^x^pre^s^sl^y^re^se^r^v^e^d^the^q^u^e^s^tion^of^the^a^v^a^ila^bilit^y^o^fⁱ^m^m^unity^“ⁱ^{n a}^c^a^s^e^w^h^e^r^e^di^stributi^oⁿ^w^a^s
^m^o^r^e^ex^te^ns^iv^e^,^w^a^s^s^p^e^cⁱ^a^l^l^y^pr^om^ote^d^{, w}^a^s^m^a^de^{in r}^e^s^pons^e^t^o^s^p^e^cⁱ^fⁱ^c^r^e^que^s^t^s^r^a^the^r^thaⁿ^s^t^aⁿ^di^ng^or^de^r^s^,^or
^coⁿ^tⁱⁿ^u^e^d^f^o^{r a}^p^e^ri^od^af^t^e^{r n}^o^tⁱ^{ce o}^f^o^b^j^ectⁱ^oⁿ^s^w^a^{s recei}^ved^.^”^Id^.^a^t⁷¹^8.
²⁴^Gra^vel^{, 40}^{8 U}^.^{S. a}^t⁶²^5.
²⁵^Uⁿ^ite^d^St^ate^s^v^.^M^c^D^ade^{, 2}⁸^F^.³^d²^83,²^99-³⁰^{0 (}^{3d C}ⁱ^r^.¹⁹⁹⁴⁾⁽^cⁱ^tⁱ^ng^Eas^t^l^aⁿ^d^v^.^Uⁿ^ite^d^Sta^t^e^s^Se^r^v^ic^e^m^eⁿ^’^s^Fund^,
⁴²¹^U^.^S.⁴^91,⁵^04-^{06 (}¹⁹⁷⁵⁾⁾^,^cert^.^d^eⁿⁱ^ed^,⁵¹^{4 U}^.^S^.¹⁰⁰³⁽¹⁹⁹⁵⁾^;^{see a}^l^so^B^r^ewst^er^{, 4}^{08 U}^.^{S. a}^t⁵¹²^.
²⁶^M^c^D^ade^,²⁸^F^.³^d^at³⁰⁰^.^F^o^r^ad^di^tⁱ^oⁿ^a^l^readⁱⁿ^{g on}^t^h^{e co}ⁿ^s^tⁱ^t^u^tⁱ^onalⁱ^m^m^uⁿⁱ^t^y^a^f^f^o^rd^ed^b^y^t^h^{e S}^p^eech^o^r^Deb^a^t^e
^Clau^se,^see^{CRS Rep}^o^r^{t RL}³⁰⁸⁴³^,^S^p^eech^o^r^Deb^a^t^e^Cl^au^{se Co}ⁿ^s^tⁱ^t^u^tⁱ^oⁿ^a^l^Immunⁱ^t^y^{: A}ⁿ^Overvi^ew^{, by}^T^{odd B}^.
^Ta^t^e^l^m^aⁿ^.
²⁷^Uⁿ^le^s^s^othe^r^w^is^e^note^d^{, the}^s^our^c^e^s^f^o^r^the^f^a^c^t^ua^{l ba}^c^k^g^r^ound^he^r^e^{in r}^e^la^te^{d a}^r^e^a^s^f^o^llow^s^{: T}^h^e^A^f^fⁱ^da^v^{it in}
^Sup^por^t^of^A^pplic^a^tion^of^Se^a^r^c^h^W^a^r^r^a^{nt, da}^te^{d Ma}^y^{18, 2}⁰⁰⁶⁽^A^f^f^ida^v^it)^{; the}^Me^m^o^r^a^ndum^{in Su}^p^por^t^of^Moti^on^f^o^r
^Re^turn^of^P^r^ope^rty^,^da^te^{d Ma}^y²⁴^{, 20}⁰⁶^oⁿ^be^ha^lf^of^Re^pre^s^eⁿ^ta^tive^W^illia^m^{J. Je}^ff^e^r^{son (Je}^ffe^{rson Me}^m^o^{); a}^{nd the}
^G^o^v^e^rn^m^e^nt’s^Re^s^pons^e^t^o^Re^pre^s^eⁿ^ta^tiv^e^W^illiam^J^e^ffe^rs^on’s^Motⁱ^{on f}^o^{r Re}^t^u^rn^of^P^r^ope^rty^,^da^te^d^Ma^y^{30, 20}⁰⁶
⁽^D^O^J^R^e^s^pons^e⁾^.
²⁸^Jeff^er^soⁿ^M^e^m^o^,^s^upr^a^f^ootn^o^te^{27 a}^t^3-⁸^;^{see a}^l^so^{DOJ Respo}ⁿ^s^e^,^s^upr^a^f^oot^note^{27 a}^t^¶⁴^.

The search was conducted as part of the FBI’s investigation of Representative Jefferson, which
began in March 2005, to determine whether he and other persons bribed or conspired to bribe a
public official, committed or conspired to commit wire fraud, or bribed or conspired to bribe a
foreign official, in violation of Sections 201, 371, 343, 1346, and 1349 of Title 18, and Section
78dd-1 of Title 15 United States Code. The investigation involves allegations, inter alia, that the
Representative used his position to promote the sale of telecommunications equipment and
services by a domestic firm to several African nations in return for payment of stocks and cash
and whether he planned to bribe high-ranking officials in Nigeria and to use his influence with
high-ranking government officials in other African countries to obtain the necessary approval for
the firm’s ventures.
In apparent recognition of the unique and constitutionally sensitive action that the DOJ was
preparing to take—it appears that no warrant to search a congressional office had ever been
sought or obtained before—the supporting affidavit contained special procedures to guide and
confine the search process. As explained by the DOJ in its response to the district court opposing
the return of the documents to Representative Jefferson:
^[T]h^{e Gov}^e^rnm^eⁿ^t^h^a^s^{been i}ⁿ^teres^t^{ed on}^l^yⁱⁿ^obtaining^non^-^l^e^g^is^lati^v^e^{act e}^v^iden^{ce o}^f
^crⁱ^mⁱⁿ^{al activ}^it^y^aⁿ^d^h^a^{s co}^m^m^itted^toⁱ^m^p^l^e^m^en^tin^g^elab^o^r^{ate p}^r^o^c^e^d^u^r^{es to}^av^oⁱ^d^an^y
^inf^o^r^m^{ation t}^h^{at cou}^l^{d be co}^{vered by}^t^h^e^Speech^{or Debate}^C^l^aus^e^{(or th}^a^t^w^{ould be n}^on-
^res^pon^sⁱ^v^e^).^A^s^a^m^a^t^t^e^{r of}^comⁱ^t^y^{, an}^{d ou}^t^of^an^abun^dan^c^{e of}^cau^tⁱ^oⁿ^,^t^h^{e G}^o^v^e^rnm^eⁿ^t
^prop^os^{ed, an}^{d th}^is^C^o^u^r^{t approv}^{ed, s}^p^{ecial proce}^d^u^r^es^desⁱ^gn^{ed to acco}^m^m^{odate t}^h^e
^p^r^iv^ileg^e^aⁿ^d^o^t^h^e^r^p^o^{litical sen}^s^iti^v^itie^{s b}^y^en^su^rⁱⁿ^g^th^at^{no doc}^um^ent^cov^e^red^by^t^h^e²⁹
^Speech^{or Debate C}^l^au^s^e^w^o^u^l^{d com}^eⁱⁿ^{to th}^{e pos}^s^e^s^sⁱ^oⁿ^of^th^{e pros}^ecu^tion^tea^m^.
These procedures, as originally described,³⁰ provided that with regard to paper records in the
offices, a search team of Special Agents from the FBI who had no role in the investigation (non-
case agents) would examine every document in the office and determine which documents were
responsive to the list of documents being sought. The non-case agents were forbidden from
revealing any non-responsive or politically sensitive information they came across during the
search. Responsive documents were to be transferred to a “filter team” consisting of two DOJ
attorneys, who were not part of the prosecution team, and a non-case FBI agent, who were to
review each seized document to address its responsiveness. Those documents deemed responsive
would then be reviewed by the filter team to determine if any responsive document fell within the
protection of the Speech or Debate Clause. Non-privileged records, determined to fall outside of
the Speech or Debate Clause protection, were to be transferred to the prosecution team, which
was to have provided counsel to Representative Jefferson copies within 10 days. Papers
potentially covered by the Speech or Debate Clause were to be catalogued in a log and the log
provided to counsel for Representative Jefferson along with copies of the papers within 20
business days. According to the warrant, the potentially privileged papers were not to be supplied
to the prosecution team until a court so ordered.
With respect to the computer files, a special FBI forensics team would download materials from
the office computers and transfer the downloaded files to an FBI facility, where a search of the
data would be conducted using court-approved search terms contained in Schedule C of the
affidavit. Responsive data were to be turned over to the filter team for a review. Responsive,
potentially privileged computer documents were to be logged and provided to counsel along with

²⁹^Se^e^D^O^J^R^e^s^pons^e^,^sup^r^a^f^o^otn^o^t^e^{27 a}^t^14-¹⁵⁽^e^m^pha^sⁱ^s^{in or}^igⁱⁿ^a^l⁾^.
³⁰^Se^e^Affⁱ^da^v^it,^s^upr^a^f^o^ot^no^t^e²⁷^at^¶^¶¹³⁶^-¹⁵^6.

copies of those documents within 60 days from the start of the review. The filter team would then
request the court to review the potentially privileged records.
In response to concerns raised by Representative Jefferson and members of the House leadership,
DOJ in its court filing developed and proposed “additional procedural accommodation[s].” The
additional procedures are discussed as follows:
^Un^d^e^r^thⁱ^s^ad^d^itioⁿ^a^{l p}^r^o^ced^u^r^{e, co}^pⁱ^{es o}^f^all^m^a^terⁱ^al^{s seize}^d^f^r^o^m^Rep^.^J^e^f^f^er^soⁿ^’^{s o}^f^fⁱ^ce
^wⁱ^l^l^{be prov}ⁱ^d^{ed t}^o^R^e^{p. J}^e^f^f^e^r^s^on^(an^d^{, i}^f^R^e^{p. Jef}^f^e^r^s^on^ch^o^o^s^e^s^,^h^e^m^a^y^provⁱ^d^{e copi}^es^t^o
^Ho^u^s^e^Co^uⁿ^sel)^{. T}^h^{e F}^ilter^T^eam^wⁱ^l^l^p^r^ep^ar^{e a lo}^g^o^f^th^{e r}^eco^r^d^{s th}^e^y^d^e^e^m^to^b^e
^p^r^iv^ileg^e^d^.^T^h^{e lo}^g^wⁱ^l^l^id^en^ti^f^y^an^y^su^c^h^r^eco^rds^b^y^{date, recipien}^{t, s}^eⁿ^d^{er, s}^u^bj^ect^m^a^tter,
^an^d^th^eⁿ^a^t^u^r^e^o^f^aⁿ^y^p^o^t^en^ti^{al p}^r^iv^ile^g^e^{. T}^h^{e Filter}^T^e^a^m^wⁱ^{ll p}^r^o^v^id^{e its}^lo^g^to^Rep^.
^Jef^f^e^rs^on^(an^d^{, i}^f^R^e^{p. Jef}^f^e^rs^oⁿ^ch^oos^es^{, t}^o^H^o^u^s^{e C}^o^uⁿ^s^e^l⁾^t^o^al^l^o^w^hⁱ^m^t^h^{e opport}^uⁿⁱ^t^y^t^o
^dⁱ^sag^r^ee^wⁱ^t^h^t^h^{e Filter}^T^e^a^m^’^s^p^r^iv^ile^g^e^d^e^ter^mⁱⁿ^atioⁿ^s^{. Do}^cu^m^eⁿ^t^{s t}^h^{at t}^h^{e Filter}^T^e^a^m
^d^e^ter^mⁱⁿ^e^s^ar^{e p}^r^iv^ileg^e^d^w^ill^b^e^r^e^tu^rⁿ^ed^to^co^uⁿ^s^{el f}^o^r^Rep^.^J^e^f^f^e^r^s^oⁿ^.^Aⁿ^y^dⁱ^sp^u^t^{es t}^h^at
^m^a^y^ar^{ise ab}^o^u^t^w^h^et^h^e^r^p^a^r^ticu^l^ar^r^e^m^aⁱⁿⁱⁿ^g^r^eco^r^d^{s ar}^{e p}^r^iv^ileg^e^d^w^{ill th}^eⁿ^b^e^r^e^s^o^l^v^e^d^b^y
^th^{e Co}^u^r^{t. No}^m^e^m^b^{er o}^f^th^e^P^r^o^s^ecu^tioⁿ^T^eam^w^ill^h^a^v^e^a^{ccess to}^an^y^seized^d^o^c^u^m^eⁿ^ts
^th^{at Rep}^.^J^e^f^f^er^soⁿ^clai^m^s^to^b^e^p^r^iv^ileg^e^d^uⁿ^{til t}^h^e^Co^u^r^{t h}^a^s^m^a^d^e^{a d}^e^ter^mⁱⁿ^at^ioⁿ^t^h^{at t}^h^e
^{record is}ⁿ^o^{t priv}^ileg^e^{d. T}^h^is^acco^m^m^odatioⁿ^obv^iates^t^h^{e con}^cern^ex^pres^s^e^{d i}ⁿ^R^e^p.
^J^e^f^f^e^rs^on’s^{brief th}^a^t^t^h^{e Fi}^lt^{er T}^eam^{, appl}^yⁱ^ng^t^h^{e orig}ⁱⁿ^{al procedu}^r^es^s^e^t^f^o^{rth in th}^e
^af^fⁱ^d^a^v^it,^mⁱ^g^h^t^m^a^k^e^{a u}ⁿ^ilate^r^a^{l d}^e^ter^mⁱⁿ^atioⁿ^t^h^{at a d}^o^c^u^m^en^t^w^a^{s n}^o^{t p}^r^ivⁱ^l^e^g^e^d^aⁿ^d^t^u^rⁿ
ⁱ^t^ov^{er t}^o^t^h^{e Pros}^ecu^tⁱ^oⁿ^T^eam^wⁱ^t^h^ou^t^a^f^f^o^rdiⁿ^g^R^e^{p. Jef}^f^ers^oⁿ^t^h^{e opport}^uⁿⁱ^t^y^t^o^ass^e^rt³¹
^p^r^iv^ileg^e^.
Initially, it appears that a potential Speech or Debate argument exists because, although material
falling within the protective framework of the Speech or Debate Clause could eventually be ruled
inadmissable in a court proceeding or any other legal proceeding (outside of the institutions of the
House or Senate themselves) based on the Speech or Debate privilege, the act of such a wide-
ranging examination of materials pursuant to a search warrant—most likely materials specifically
and clearly covered by the privilege—is arguably in itself an action that raises concerns of
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.
Moreover, as explained in relevant court documents, the FBI itself and its own agents were to be
responsible for “sifting” through all the electronic and paper material seized in the Member’s
office, so that the FBI, and not a court (nor officials of the legislative branch), was to make the
initial determinations not only of what material is “responsive” to the warrant, but also which
material might be “privileged” under the Speech or Debate Clause. Therefore, it also could be
argued that the independence and autonomy of the legislative branch under this process was left
initially to the legal and constitutional interpretations of the agents of the FBI. As a former
Deputy Attorney General in the Reagan Administration testified before the House Judiciary
Committee:
^Search^w^a^rraⁿ^ts^f^o^{r docum}^eⁿ^t^a^ry^e^v^iden^ceⁱⁿ^le^gⁱ^s^l^a^tiv^e^offⁱ^ces^{are irrecon}^c^ilable^wⁱ^t^h^t^h^e
^Speech^{or Debate C}^l^aus^e^{.... T}^h^{e C}^l^au^s^eⁱ^s^off^eⁿ^d^{ed th}^e^m^o^m^eⁿ^t^t^h^{e F.B}^.^{I. peru}^s^e^s^a
^coⁿ^s^tit^u^tioⁿ^a^ll^y^p^r^o^t^ected^legⁱ^s^l^ativ^{e d}^o^c^u^m^en^{t. Ev}^eⁿⁱ^f^th^{e d}^o^c^u^m^eⁿ^{t i}^sⁿ^o^{t se}ⁱ^z^e^d^,^m^e^m^o^r^y

³¹^Se^e^D^O^J^R^e^s^pons^e^,^sup^r^a^f^o^otn^o^t^e^{27 a}^t^11-¹²⁽ⁱⁿ^t^e^r^na^{l f}^oot^note^s^a^{nd c}^ita^ti^ons^om^itte^d).

^o^f^{its p}^o^{litical co}ⁿ^t^en^t^s^r^e^m^aⁱⁿ^{s in}^t^h^{e Ex}^ec^u^tⁱ^v^{e B}^r^an^c^h^f^o^r^u^s^{e i}ⁿ^t^h^w^a^r^tⁱⁿ^g^coⁿ^g^r^e^s^s^ioⁿ^a^l
^oppos^ition^{or leak}ⁱⁿ^g^e^m^barras^sⁱ^ng^{political inf}^o^r^m^atioⁿ^.^Docum^eⁿ^t^ar^y^s^earch^e^s^{are f}^u^rt^h^e^r
ⁱⁿ^ti^mⁱ^datiⁿ^g^{to C}^ong^res^s^becau^s^e^t^h^{e “}^p^laiⁿ^vⁱ^e^w^{” doctrin}^{e of}^th^e^F^o^u^r^t^h^A^m^eⁿ^dm^en^t^w^o^u^l^d
^en^{title t}^h^{e F.B}^.^I^.^to^{seize an}^y^m^a^terⁱ^{al in}^t^h^{e co}^u^r^{se o}^f^r^eadⁱⁿ^g^o^f^fⁱ^ce^f^ile^{s co}ⁿ^cerⁿⁱⁿ^g^crⁱ^m^es
^uⁿ^c^oⁿⁿ^{ected to th}^{e s}^earch^w^a^rr^an^{t. T}^h^{e k}ⁿ^o^w^l^edg^e^b^y^{a Me}^m^b^{er th}^{at th}^{e F.B}^.^{I. can}^m^a^k^e^an
^uⁿ^aⁿⁿ^oun^{ced rai}^d^on^hi^s^l^e^gⁱ^s^l^atⁱ^v^{e o}^f^fⁱ^ce^t^o^{read an}^{d rumm}^a^g^{e t}^h^rou^g^h^e^v^er^y^docum^eⁿ^t^or
^e^m^ai^lⁱ^s^boun^{d t}^o^di^s^c^ou^rag^e^C^ong^res^s^f^r^o^m^t^h^e^m^u^s^c^u^l^{ar ch}^eck^a^g^ai^ns^t^t^h^{e Ex}^ecutⁱ^v^{e t}^h^a^t³²
^th^{e Speech}^{or Debate C}^l^a^u^s^e^w^a^s^calcu^la^{ted to f}^o^s^t^er.
It should be noted that the phrase “questioned in any other place” has not been the subject of
much discussion. There do not appear to be any court decisions or other historical evidence that
may guide modern interpreters as to the phrase’s meaning. While to date neither the DOJ nor
Representative Jefferson has directly raised the issue in this case, it would appear possible to
argue that because the DOJ specifically excluded any legislative branch representatives from the
office search, they constructively converted Representative Jefferson’s office into “any other
place” for Speech or Debate purposes. In addition, the removal of documents for off-site
“filtering” by the DOJ may also constitute questioning “in any other place.” Moreover, the search
of the computer files, which according to the DOJ’s own procedures was to be done at an FBI
laboratory, appears to most certainly qualify as “any other place.”
In response to the search and seizure of materials from his House office, Representative Jefferson,
joined by the House General Counsel filing as amicus curiae on behalf of the House Bi-Partisan
Leadership Council, sought to have the search declared unconstitutional and the seized materials
returned to his possession. In addition to raising many of the arguments discussed above,
Representative Jefferson argued, inter alia, that execution of the search warrant on the premises
via a document-by-document search of every paper record in the office and the “wholesale”
copying and removal of the Representative’s computer hard drive “guaranteed that the executive ³³
would be in possession of material that relates to the Member’s legislative duties.” The motion
asserted that those actions, coupled with the exclusion of Representative Jefferson’s counsel and
the General Counsel for the House of Representatives from even viewing the search process,
impermissibly interfered with and violated the absolute privilege afforded by the Speech or ³⁴
Debate Clause.
The DOJ, in its brief responding to Representative Jefferson’s motion for return of property,
argued that because it was only interested in obtaining non-legislative materials, the use of a ³⁵
“filter team” provided sufficient protection of the privilege under the Speech or Debate Clause.
Based on the DOJ’s filing, it appears that the DOJ adopted the position that the Clause’s language
“shall not be questioned at any other place” merely protects Members from having information ³⁶
relating to legislative acts used against them in a criminal proceeding. The DOJ’s filing

³²^{Reckless Ju}^{stice: Did}^th^{e S}^a^tu^r^d^a^y^Nig^h^{t R}^a^id^o^f^C^oⁿ^g^{ress Tra}^m^p^l^{e th}^{e Co}ⁿ^s^titu^tioⁿ^,^Heariⁿ^{g Bef}^o^{re t}^h^{e Ho}^u^s^e
^C^o^m^m^{. on the}^J^u^dicⁱ^a^r^y^,¹⁰⁹^th^Co^ng^{., 2}^d^Se^{ss. (Ma}^y^30,²⁰⁰⁶⁾^(w^ritteⁿ^te^stim^ony^of^{Mr. Bruc}^e^Feⁱⁿ^a^t^3-4)^av^ail^a^b^l^e
^at^{, http}^://j^udicⁱ^a^r^y^.^hous^e^.^g^o^v^/^O^v^ersⁱ^g^h^tT^e^s^ti^m^oⁿ^y^.a^s^p^x^?^ID⁼^637.
³³^Jeff^er^soⁿ^M^e^m^o^,^s^upr^a^f^ootn^o^te^{27 a}^t¹³^.
³⁴^Id^.
³⁵^D^O^J^R^e^s^pons^e^,^sup^r^a^f^o^o^tⁿ^o^te²⁷^a^t¹⁴^-¹^{7 (}^s^ta^ti^ng^tha^t^“^t^he^pr^oc^e^dur^e^s^pr^op^os^e^d^t^o^be^us^e^d^by^the^G^o^v^e^rⁿ^m^e^{nt a}^r^e
^plaⁱ^nly^s^u^f^f^ic^ie^{nt to pr}^ote^c^t^a^g^aⁱ^ns^{t a}ⁿ^y^pe^r^m^is^sⁱ^ble^intr^us^io^n”⁾^.
³⁶^Id^.^at¹⁷^-¹⁸^(st^a^tⁱⁿ^{g t}^h^at^“evenⁱ^f^t^h^{e S}^p^eech^o^r^Deb^a^t^e^Cl^au^{se w}^e^re^unde^r^s^t^o^o^d^t^o^c^r^e^a^t^e^a^c^r^im^ina^l^dis^c^ov^e^r^y
⁽^c^onti^nue^d.^..)

suggested that the past practice of using subpoenas and allowing initial review by the House
General Counsel’s Office pursuant to House Rule VIII to determine whether the protection of the ³⁷
clause has been simply a matter of “comity.” The DOJ also argued that Representative
Jefferson’s position “would effectively extend Speech or Debate immunity to clearly unprivileged
materials by making it impossible to execute a search warrant in any place containing even one ³⁸
privileged document.”
DOJ’s argument seemed to rest on the contention that because the actual prosecution team was
never to have had access to any information that would have been subject to the privilege, the ³⁹
Speech or Debate Clause had not been violated. Thus, the DOJ appeared to be arguing that the
Speech or Debate Clause is nothing more than an evidentiary privilege that can be asserted prior
to trial, similar to any other available motion to exclude improperly seized evidence. As a result,
DOJ asserted that the procedures employed did not in any way prohibit Representative Jefferson ⁴⁰
from asserting his privilege and having his claims adjudicated by a court. In support of its claim
that the Speech or Debate Clause was not violated merely because the DOJ was to make
determinations regarding privileged material, the DOJ referenced other prosecutions of Members ⁴¹
of Congress. In these instances, the DOJ contended that it reviewed materials obtained in
response to subpoenas and determined what could be used and what was privileged and,
therefore, inadmissible and in close or debatable situations, consistent with the Constitution, the ⁴²
information was submitted to a court for a resolution as to whether the material could be used.
On July 10, 2006, United States District Judge Thomas Hogan issued a written opinion rejecting
the arguments of Representative Jefferson and upholding the search and seizure of materials from ⁴³
his Rayburn House Office as constitutional. In reaching this conclusion, Judge Hogan first
rejected the arguments made by Representative Jefferson, as well as the House General Counsel’s
Office, with respect to the scope of the immunity afforded by the Speech or Debate Clause.

^(...c^on^tin^ue^d)
^priv^ile^g^e^{, ra}^the^r^thaⁿ^a^priv^ile^g^e^p^r^ote^c^ting^le^gⁱ^sla^t^{ors a}^g^aⁱ^ns^{t be}^ing^que^s^tⁱ^one^d^a^b^o^u^t^pr^iv^ile^g^e^{d inf}^o^r^m^a^{tion or}^ha^vⁱ^ng
^s^u^c^h^inf^o^r^m^a^{tion us}^e^d^a^g^aⁱ^ns^{t the}^m⁽^a^{point t}^h^e^G^o^v^e^rⁿ^m^e^{nt doe}^s^{not c}^onc^e^d^e⁾^{, i}^t^sⁱ^m^p^ly^doe^s^{not c}^ons^tit^ute
^‘dⁱ^s^co^ver^y^{’ f}^o^{r a l}^a^w^en^f^o^rce^m^en^t^agen^t^uⁿ^c^onⁿ^ect^ed^wⁱ^t^h^t^h^{e i}ⁿ^vestⁱ^g^atⁱ^oⁿ^t^o^m^a^{ke a}^cu^rso^r^y^re^vi^e^w^o^f^p^rⁱ^vⁱ^l^e^ged
^inf^o^rm^a^{tion sole}^ly^f^o^{r the}^p^u^rp^ose^of^de^te^r^m^ining^w^h^e^t^he^{r it is}^pri^v^ile^g^e^d”^).
³⁷^Id^.^a^t¹⁴^{. D}^O^J^’s^a^s^s^e^{rtion w}^{ith re}^s^p^e^c^t^{to t}^h^e^de^v^e^lopm^eⁿ^{t a}^nd^us^e^of^H^ous^e^Rule^V^{III a}^p^pe^a^r^s^to^dis^c^ount^the
^si^gnⁱ^fⁱ^can^t^hⁱ^st^o^rⁱ^cal^p^r^eced^en^t^and^evi^d^en^{ce t}^h^at^s^u^ggest^{s t}^h^{e Ho}^u^s^{e o}^f^Rep^r^esen^t^a^tⁱ^v^{es h}^a^{ve n}^earl^y^al^wa^y^s^t^a^ken^a
^st^roⁿ^g^po^si^tⁱ^oⁿ^wⁱ^t^h^resp^ect^t^o^t^h^{e rel}^{ease o}^fⁱⁿ^f^o^r^m^atⁱ^oⁿⁱⁿ^respoⁿ^s^{e t}^o^requ^est^s^an^d^s^u^bp^o^eⁿ^a^s^b^y^t^h^{e execu}^tⁱ^v^e
^b^r^an^ch^.^Nam^e^l^y^,ⁱ^t^ap^p^{ears t}^h^at^t^h^{e Ho}^u^s^{e h}^a^{s con}^sⁱ^s^t^eⁿ^t^l^y^de^f^e^nde^{d its rig}^h^t^to^m^a^k^e^the^fⁱ^{rst de}^te^r^m^ina^tio^{n w}^ith
^resp^ect^t^o^t^h^{e a}^p^p^lⁱ^catⁱ^oⁿ^o^f^t^h^{e S}^p^eech^o^r^Deb^a^t^e^p^rⁱ^vⁱ^l^e^ge.^Se^e^C^R^S^G^e^ne^r^a^{l D}ⁱ^s^t^rⁱ^butio^{n Me}^m^o^r^a^ndum^,^Le^g^a^{l an}^d
^Coⁿ^s^tit^u^tⁱ^oⁿ^a^{l Issu}^{es R}^a^ised^b^y^E^xecu^{tive Bra}ⁿ^c^h^S^e^a^r^ch^{es o}^f^Legⁱ^sla^{tive Offices}^{, 13}^-²^2,^by^Mor^t^on^R^o^s^e^nbe^r^g^{, J}^a^c^k
^H^.^Ma^s^k^e^{ll, a}^{nd T}^o^d^d^B^.^T^a^te^l^m^{an (}^J^uⁿ^e¹³^,²⁰⁰⁶⁾⁽^c^opie^s^a^v^a^ila^bl^e^f^r^o^m^a^u^thor^{on r}^e^que^s^t⁾^.
³⁸^Id^.^a^t²³^.
³⁹^Id^.^at¹⁷^(arguⁱⁿ^g^t^h^at^“[b]^ecau^{se su}^ch^o^f^fⁱ^ci^al^{s are}^unde^r^a^f^fⁱ^r^m^a^tⁱ^v^e^oblig^a^tions^no^{t to}^dis^c^los^e^t^h^e^c^onteⁿ^ts^of^aⁿ^y
^doc^um^eⁿ^ts^the^y^s^e^e⁽^a^{nd to a}^tte^s^t^tha^t^the^y^ha^v^e^{not d}^one^s^o⁾^,^t^h^e^r^e^is^no^pr^e^j^u^d^ic^e^to^R^e^{p. J}^e^f^f^e^r^s^{on a}^s^a^r^e^s^u^{lt of}^the
^w^a^{y i}ⁿ^w^hⁱ^c^h^t^h^{e search}^w^a^{s c}^a^rri^ed^o^u^t^.^”^c^iti^{ng W}^e^at^he^r^f^or^{d v}^.^Bu^r^s^e^y^{, 429 U}^.^S.⁵⁴^5,⁵⁵^6-⁵⁸⁽¹⁹⁷⁷⁾⁾^.
⁴⁰^Id^.^a^t¹⁹⁽^s^ta^ting^t^h^a^t^“^R^e^p^{. J}^e^f^f^e^r^s^{on s}^u^f^f^e^r^s^{no c}^o^gⁿ^iz^a^b^leⁱⁿ^jur^y^unde^r^t^h^e^Sp^eech^o^r^Deb^a^t^e^Cl^au^se^b^ecau^{se h}^e
^m^u^st^ass^e^rt^p^rⁱ^vⁱ^l^e^{ge a}^f^t^e^{r a j}^u^dⁱ^ci^al^l^y^au^t^h^o^rⁱ^zed^search^,^rat^h^{er t}^h^aⁿ^d^u^rⁱⁿ^{g i}^t^,^es^p^eci^al^l^y^w^h^en^h^e^su^{ffers n}^o^p^r^ej^u^dⁱ^ce
^{as a resu}^l^t^”^).
⁴¹^Id^.^a^t²¹^.
⁴²^Id^.^at²¹^(arguⁱⁿ^g^t^h^at^“[ⁱ^]^t^h^a^sⁿ^e^{ver b}^een^su^ggest^ed^t^h^at^t^h^{e Con}^s^tⁱ^t^u^tⁱ^oⁿⁱ^s^o^f^f^eⁿ^d^e^d^m^e^r^e^l^y^b^ecau^s^e^me^m^b^{ers o}^f^t^h^e
^prose^c^u^ti^{on te}^a^m^re^vⁱ^e^w^le^gⁱ^sla^tiv^e^m^a^te^ria^l^{s in th}^e^c^our^s^e^of^m^a^kⁱ^ng^pr^iv^ile^g^e^de^te^r^m^ina^tions^”⁾^.
⁴³^Iⁿ^Re^:^Se^ar^c^h^{of t}^h^e^Ray^burⁿ^H^o^us^e^O^ffic^e^Buil^din^g^R^oom²¹¹³^,^W^a^s^h^ing^t^oⁿ^{, D}^.^C^.²⁰⁵¹⁵^,^N^o^.⁰⁶^-²¹³^{, s}^lⁱ^p^o^p^.¹
^(D^.D^{.C. J}^u^ly^10,²⁰⁰⁶⁾^.

Specifically, Judge Hogan noted that should the execution of a search warrant be limited to a
period after the elected official has first been permitted to review and remove privileged
information, it would impermissibly expand the Speech or Debate Clause’s protection to require
advance notice of a search of any property frequented by the Member, not just his congressional ⁴⁴
office.
Next, Judge Hogan focused on the testimonial privilege aspect of the clause. Like the DOJ, Judge
Hogan appears to have adopted an arguably narrow construction of the Speech or Debate Clause’s
protection, noting that unlike providing responses to a subpoena, having property searched
pursuant to a search warrant is not a testimonial act; therefore, the clause’s protection does not ⁴⁵
apply. Relying exclusively on Fifth Amendment case law for this analysis, Judge Hogan
concludes that “[j]ust as a search warrant does not trigger the Fifth Amendment’s testimonial ⁴⁶
privilege, neither does a search trigger the Speech or Debate Clause’s testimonial privilege.”
Turning to the Speech or Debate Clause’s purpose in protecting the independence and integrity of ⁴⁷
the legislative branch, Judge Hogan again appears to have adopted an arguably narrow
construction of the immunity afforded by the Speech or Debate Clause. Here again, he interprets
the Speech or Debate Clause as protecting a right analogous to the right against self-incrimination
afforded by the Fifth Amendment. For Judge Hogan, the Speech or Debate Clause merely protects
Members from having to “answer questions as to [their] legislative activities”; it “does not ⁴⁸
prohibit the disclosure of legislative material.” Because in this case Representative Jefferson
was not questioned about things within the sphere of his legislative activities, Judge Hogan held ⁴⁹
that the Clause’s immunity did not apply.
Finally, Judge Hogan addressed the “filtering” procedures approved by the warrant. He rejected
the argument that members of the legislature be permitted to determine what is privileged and
what is not prior to a search warrant being executed. Arguing by analogy to both the privilege
provided by the First Amendment’s protections, as well as other privileges at common law, Judge
Hogan indicated that he was able to find “no support for the proposition that a Member of
Congress must be given advance notice of a search, with an opportunity to screen out and remove
materials the Member believes to be privileged. Indeed, the Court is aware of no case in which ⁵⁰
such a procedure is mandated by any other recognized privilege.”
With respect to this point, it appears that Judge Hogan is attempting to preserve the role of the
judiciary in determining the proper scope and application of privileges. Specifically, Judge Hogan
observed that the power to determine the scope of a privilege is conferred to neither federal ⁵¹⁵²
judges nor the President of the United States and concluded, therefore, that such power cannot

⁴⁴^Id^.^a^t¹²⁽^s^ta^ting^t^h^a^t^“^t^his^a^r^g^u^m^e^{nt w}^{ould r}^e^quir^e^a^Me^m^b^e^r^of^C^ong^r^e^s^s^{to be}^gⁱ^v^e^{n a}^d^v^a^nc^eⁿ^o^tic^e^of^aⁿ^y^s^e^a^r^c^h
^of^his^pr^ope^r^t^y^,^inc^l^ud^ing^pr^ope^r^t^y^outsⁱ^de^his^c^o^ng^r^e^s^sⁱ^ona^{l of}^fⁱ^c^e^,^s^u^c^h^a^s^his^hom^e^or^c^a^r^{, a}ⁿ^{d f}^u^r^t^he^r^tha^t^he^be
^al^l^o^w^e^d^t^o^rem^o^{ve an}^y^mat^e^ri^al^t^h^at^h^e^d^eemed^t^o^b^e^co^v^e^re^{d by}^the^le^gⁱ^sla^tiv^e^priv^ile^g^e^{prior to}^th^e^se^a^r^c^h^”⁾^.
⁴⁵^Id^.^a^t¹⁴^.
⁴⁶^Id^.^a^t¹⁵^.
⁴⁷^Id^.^at¹⁶^(st^a^tⁱⁿ^{g t}^h^at^“[t^]^h^e^p^u^r^po^{se o}^f^t^h^{e S}^p^eech^o^r^Deb^a^t^e^Cl^{ause i}^s^rat^h^{er t}^o^p^r^o^t^ect^t^h^{e i}ⁿ^d^e^p^e^nd^en^{ce an}^d
^inte^g^r^ity^of^the^le^gⁱ^sla^t^ure^b^y^not^que^stio^ning^Me^m^b^e^r^{s of}^Cong^re^s^s^f^o^{r the}ⁱ^{r le}^g^itim^a^t^e^le^gⁱ^sla^tiv^e^a^c^t^s”^{) (c}^iting^Brown
^&^W^illiamson^To^bac^c^o^C^o^rp.^v^.^W^illiams^,⁶²^F.^3d⁴⁰^8,⁴¹^{6 (}^D^.^C^.^Cⁱ^r^.¹⁹⁹⁵⁾⁾^.
⁴⁸^Id^.^a^t¹⁶^.
⁴⁹^Id^.
⁵⁰^Id^.^a^t¹⁷^.
⁵¹^Id^.^a^t¹⁹^(c^iting^Iⁿ^{re Certa}ⁱ^{n Comp}^laⁱⁿ^{ts Un}^de^{r Inv}^e^s^tig^atioⁿ^,⁷⁸^{3 F.}^2d¹⁴⁸⁸^,¹⁵¹^8-^{20 (}¹¹^th^Cir.¹⁹⁸⁶^)).

be available to Members of Congress. Based on these findings, Judge Hogan held that “[r]eview ⁵³
of allegedly privileged material by the Court is allowed and appropriate under the Constitution.”
Further, Judge Hogan concluded that because Representative Jefferson remained free to assert
claims of privilege at a later point in potential criminal proceedings against him, the search of his
House office did not violate the Speech or Debate Clause. Judge Hogan also issued an order
permitting the DOJ to begin reviewing the documents and other materials seized from
Representative Jefferson’s office.
Almost immediately after Judge Hogan issued his ruling, Representative Jefferson filed a motion
for a stay pending appeal to the Court of Appeals. Judge Hogan, on July 19, 2006, denied this
motion, relying primarily on his opinion that Representative Jefferson was not substantially likely
to prevail on the merits of his appeal, that Representative Jefferson had suffered no irreparable
injury, and that the damage to the government in delaying its investigation outweighed any ⁵⁴
potential harm to Representative Jefferson. Representative Jefferson promptly filed notice of
appeal to the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit),
seeking a stay of both Judge Hogan’s order and any DOJ review of the documents pending the
outcome of his appeal. The resolution of Representative Jefferson’s appeal appears to have been
expedited due to an announcement by the Attorney General that set a July 26, 2006, deadline for
investigators to begin reviewing the documents and materials seized from the Representative’s ⁵⁵
House office.
On July 28, 2006, a three-judge panel of the D.C. Circuit issued a two-page order remanding the
case back to the district court for further fact finding with respect to claims of legislative privilege ⁵⁶
and detailing the procedures under which the court is to perform its duties. Specifically, the
Court of Appeals ordered that the District Court, either via a magistrate judge or other judicial
officer, copy all of the paper documents seized by the FBI, as well as provide a list of responsive ⁵⁷
computer documents to Representative Jefferson for his review. Moreover, the Court of Appeals
ordered that Representative Jefferson, within two days of receipt of said documents and records, ⁵⁸
submit ex parte any claims of privilege under the Speech or Debate Clause. According to the
order, the District Court would then conduct an in camera review of the claims and make any and
all necessary findings regarding whether the specific documents are legislative in nature and,

^(...c^on^tin^ue^d)
⁵²^Id^.^a^t²⁰^(c^iting^Uni^t^e^d^S^t^at^{es v.}^Ni^xoⁿ^,⁴¹^{8 U}^.^S^.⁶⁸³^,⁷^03-⁰⁵⁽¹⁹⁷⁴⁾⁾^.
⁵³^Id^.^a^t²¹^.
⁵⁴^Iⁿ^Re^:^Se^ar^c^h^{of t}^h^e^Ray^burⁿ^H^o^us^e^O^ffic^e^Buil^din^g^R^oom²¹¹³^,^W^a^s^h^ing^t^oⁿ^{, D}^.^C^.²⁰⁵¹⁵^,^N^o^.⁰⁶^-²¹³^{, s}^lⁱ^p^o^p^.²
^(D^.D^{.C. J}^u^ly^19,²⁰⁰⁶⁾^.
⁵⁵^Se^e^K^e^nne^th^P^.^D^o^y^l^e^,^D^O^J^C^o^mplyⁱⁿ^{g w}ⁱ^t^h^Ap^pe^als^C^our^t^O^r^de^r^;^Re^vⁱ^e^w^{of J}^e^ffe^r^s^on^Se^ar^c^h^M^a^te^rⁱ^als^Pu^{t O}^f^f^,
^BNA^M^ON^E^Y^&^P^OL^I^T^I^C^S^R^EPO^R^T^,^{2 (}^A^ug^{. 1,}²⁰⁰⁶⁾^,^av^aila^ble^a^t^{, ht}^tp://^pu^bs^.b^na^.c^om^/ip/bna^/^m^pr^.ns^f^/^e^h/A⁰^B³^B³^Y⁴^F⁰^.
⁵⁶^Se^e^Uⁿ^ite^d^St^ate^s^v^.^Ray^burⁿ^H^o^us^e^O^ffic^e^Buil^din^g^R^oom²¹¹³^,^W^a^s^h^ing^t^oⁿ^{, D}^.^C^.²⁰⁵¹⁵^,^N^o^.⁰⁶^-³¹⁰^{5 s}^lⁱ^p^op.¹
^(D^{.C. Cir. J}^u^ly^{28, 2}⁰⁰⁶^).
⁵⁷^Id^.^(c^iti^ng^Brow^{n &}^W^illiamson^Tob^a^c^c^o^Cor^p^{. v}^.^W^ill^iams^{, 62 F.}^{3d 40}^{8, 42}⁰⁽^D^.C^.^Cⁱ^r^.¹⁹⁹⁵⁾⁾^.
⁵⁸^Id^.

therefore, privileged.⁵⁹ Finally, the Court of Appeals enjoined the DOJ from reviewing any of the ⁶⁰
documents or materials seized pending further order of the court.
Because the Court of Appeals order contains no analysis and only two case citations, it is difficult
to draw any definitive conclusions about the legal rationale for the order. From the text of the
order, it appears reasonable to conclude that the Court of Appeals felt that there was too little
lower court review of claims of privilege pursuant to the Speech or Debate Clause. Moreover, it
appears that the Court of Appeals felt strongly that those claims, whatever they may be, should be
dealt with prior to any review of the materials by the executive branch and, significantly, without
any opportunity for input or argument from the DOJ. Beyond that, however, it appears that few, if
any, principles regarding the Speech or Debate immunity can be derived from the Court of
Appeals’ order. Consequently, it appears that the question of the legality of such a search and
seizure remains very much an unresolved question.
The D.C. Circuit heard oral argument on Representative Jefferson’s appeal on May 15, 2007, and ⁶¹
issued its decision on August 3, 2007. The court concluded that the “compelled disclosure of
privileged material to the Executive during execution of the search warrant ... violated the Speech
or Debate Clause and that the Congressman is entitled to the return of documents that the court ⁶²
determines to be privileged under the Clause.” In reaching its conclusion the court relied upon
many of the core concepts of Speech or Debate Clause jurisprudence, including the Speech or
Debate Clause’s broad scope and its purpose of protecting the legislative branch from ⁶³
intimidation from the Executive. Specifically, the D.C. Circuit affirmed its holding in Brown & ⁶⁴
Williamson Tobacco Corporation v. Williams, which made clear that a critical component of the
Speech or Debate Clause is the prevention of intrusions into the legislative process, and that the
compelled disclosure of legislative materials is such a disruption, regardless of the proposed use ⁶⁵
of the material.
Applying these principles to the search of Representative Jefferson’s office, the court stated that
the

⁵⁹^Id^.^(c^iti^ng^Klitzma^{n, Kl}^itzman^,^a^{nd G}^a^lla^ghe^{r v}^.^Kr^ut^,⁷⁴^{4 F}^.²^d⁹^55,⁹⁶^{2 (}^{3d C}ⁱ^r^.¹⁹⁸⁴⁾⁾^.
⁶⁰^Id^.
⁶¹^S^{ee Un}ⁱ^t^e^{d S}^t^a^t^{es v.}^R^a^y^b^u^r^{n Hou}^s^{e Of}^fⁱ^{ce B}^uⁱ^l^dⁱ^ng^,^R^o^o^m²¹¹³^,^Wa^shⁱⁿ^gt^on^,^D.^C^.²⁰⁵¹⁵^,^N^o^.⁰⁶^-³¹⁰^{5, s}^l^ip^op^.
⁽^D^.C^{. C}ⁱ^r^.²⁰⁰⁷⁾^.^Me^r^its^br^ie^f^s^w^e^r^e^f^ile^{d by}^{both R}^e^pr^e^s^eⁿ^ta^tiv^e^J^e^f^f^e^r^s^{on a}^{nd the}^D^O^J^{. I}ⁿ^a^d^diti^on^,^am^ic^us^c^u^rⁱ^ae
^(f^rien^d^o^f^th^{e co}^u^r^t)^b^r^ief^s^{, su}^p^p^o^r^tin^g^Rep^r^esen^tativ^{e Jefferso}ⁿ^’^{s l}^e^g^a^{l p}^o^s^itioⁿ^oⁿ^t^h^{e Sp}^eech^o^r^De^b^a^{te Clau}^{se, w}^e^re
^f^ile^{d by}^the^f^o^llowⁱ^ng^indivⁱ^dua^ls^{: Sta}ⁿ^le^y^{M. B}^r^a^nd,^C^h^rⁱ^s^t^op^he^r^B^r^y^a^{nt, Ste}^v^eⁿ^{F. H}^u^e^f^ne^r^,^T^hom^a^s^{E. Ma}ⁿⁿ^,
^No^rm^an^J.^Orn^s^t^eⁱⁿ^,^S^t^even^R.^R^o^ss,^T^h^o^m^{as J.}^S^u^p^l^ak,^Ch^arl^e^{s T}ⁱ^efer,^t^h^{e Ho}^no^rab^l^{e T}^h^o^m^{as S}^.^F^o^l^e^y^,^t^h^{e Ho}^no^rab^l^e
^Ne^w^t^Gⁱ^ng^ric^h^{, the}^Hon^o^ra^ble^Ro^be^{rt H. Mic}^h^e^l^{, t}^h^e^Hon^o^ra^ble^A^b^ne^{r J. Mik}^v^a^{, Sc}^ott^P^a^lm^e^r^{, Elliot}^Be^rk^e^,^a^{nd Re}^id
^Stun^tz^{. In}^s^u^p^por^{t of}^the^D^O^J^{, t}^h^e^W^a^s^h^ing^t^{on L}^e^g^a^{l Foun}^da^tio^{n, J}^udicⁱ^a^l^W^a^tc^{h, a}ⁿ^{d t}^h^e^Citiz^eⁿ^s^f^o^{r Re}^s^ponsⁱ^b^ility
^an^d^E^t^hⁱ^{cs i}ⁿ^W^a^shⁱⁿ^gt^oⁿ^each^fⁱ^l^e^d^am^ic^us^c^u^rⁱ^ae^br^ie^f^s^{. T}^h^e^H^ous^e^G^e^ne^r^a^{l C}^ouns^e^l^{, w}^{ho f}^ile^{d a}^s^am^ic^us^c^u^rⁱ^ae^on
^be^ha^lf^of^the^H^ous^e^Bⁱ^-^P^a^r^tis^aⁿ^L^e^a^d^e^r^s^h^{ip C}^o^unc^il^be^f^o^r^e^the^Dⁱ^s^t^rⁱ^c^t^C^our^t^,^dⁱ^d^no^{t f}^ile^a^br^ie^f^be^f^o^r^e^the^D^.^C^.
^Circ^uit.
⁶²^Id^.^at³^.
⁶³^S^{ee i}^d^.^at¹¹^(no^tⁱⁿ^{g t}^h^at^t^h^{e S}^u^p^r^e^m^{e Co}^u^r^t^h^a^{s h}^e^l^d^t^h^at^on^{e o}^f^t^h^{e p}^u^r^po^{ses o}^f^t^h^{e S}^p^eech^o^r^Deb^a^t^e^Cl^au^{se i}^s^t^o
^“^a^s^s^u^r^e^a^c^o^-^e^qua^{l br}^aⁿ^c^h^of^the^g^o^v^e^rⁿ^m^e^nt^wⁱ^de^f^r^ee^dom^of^s^p^e^e^c^{h, de}^ba^te^{, a}ⁿ^d^de^li^be^r^a^tio^{n w}^ithou^{t intim}^ida^tio^{n or}
^t^h^reat^{s f}^r^o^m^t^h^{e E}^x^e^c^u^tⁱ^v^{e Bran}^ch^.^”^Gra^vel^v.^Unⁱ^t^ed^St^a^t^es^,⁴⁰⁸^U.^S^.⁶⁰^6,⁶¹^{6 (}¹⁹⁷²⁾⁾^.
⁶⁴⁶²^F.^3d⁴⁰^{8 (}^D^.C^.^Cⁱ^r^.¹⁹⁹⁵⁾^.
⁶⁵^S^{ee Un}ⁱ^t^e^{d S}^t^a^t^{es v.}^R^a^y^b^u^r^{n Hou}^s^{e Of}^fⁱ^{ce B}^uⁱ^l^dⁱ^ng^,^R^o^o^m²¹¹³^,^Wa^shⁱⁿ^gt^on^,^D.^C^.²⁰⁵¹⁵^,^N^o^.⁰⁶^-³¹⁰^{5, s}^l^ip^op^{. a}^t
^{12 (D.C}^{. Cir.}²⁰⁰⁷⁾^(c^iting^Br^own^&^W^illiamson^{, 6}²^F^.³^d^a^t⁴¹^9).

^co^m^p^elled^dⁱ^sclo^s^u^r^e^clear^l^y^t^eⁿ^d^{s to}^dⁱ^sr^u^p^t^th^{e leg}ⁱ^s^l^ati^v^{e proces}^s^:^ex^ch^aⁿ^g^e^s^bet^w^eeⁿ^a
^Me^m^b^{er of}^C^ong^res^s^aⁿ^{d t}^h^e^Me^m^b^er’s^s^t^a^f^f^{or a}^m^ong^Me^m^b^er^s^of^C^ong^res^s^on^l^e^gⁱ^sl^atⁱ^v^e
^m^a^tter^s^m^a^y^le^g^iti^m^a^tel^yⁱⁿ^v^o^l^v^e^f^r^aⁿ^k^o^r^e^m^b^a^r^r^as^sin^g^s^t^ate^m^eⁿ^ts^{; th}^{e p}^o^s^sib^ilit^y^o^f
^co^m^p^elled^dⁱ^sclo^su^r^e^m^a^y^t^h^er^ef^o^r^{e ch}^{ill t}^h^{e e}^x^ch^aⁿ^g^e^o^f^vⁱ^e^w^s^wⁱ^t^h^r^e^sp^{ect to}^legⁱ^slati^v^e
^activ^it^y^.^T^h^{is ch}^{ill r}^uⁿ^s^co^uⁿ^te^r^to^th^{e Clau}^se^’^s^p^u^r^p^o^s^{e o}^f^p^r^o^t^ectin^g^a^g^aiⁿ^s^{t d}ⁱ^sr^u^p^tioⁿ^o^f⁶⁶
^th^{e legis}^l^at^iv^{e proces}^s^.
In so holding the court sought to carefully distinguish between the lawfulness of searching a
congressional office pursuant to a search warrant—which the court holds is clearly permissible—
and the lawfulness of the manner in which the search was executed in light of the protections ⁶⁷
afforded to the Member pursuant to the Speech or Debate Clause. Thus, the court concluded that
because the Executive’s procedures for executing the warrant “denied the Congressman any
opportunity to identify and assert the privilege with respect to legislative materials before their ⁶⁸
compelled disclosure to Executive agents,” they violated the Speech or Debate Clause. The
court declined, however, to expressly delineate acceptable procedures for avoiding a violation of
the Speech or Debate Clause in future searches of congressional offices, 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 ⁶⁹
Executive in law enforcement.” Moreover, the court observed that the precise contours of those ⁷⁰
accommodations are a matter best left to negotiations between the political branches.
Finally, with respect to what remedy Representative Jefferson is entitled to, the court declined to
grant what was requested; namely, a return of all of the documents seized from the office during
the unconstitutional search. Rather, the court determined that, with respect to the computer files,
the court’s previous Remand Order “affords the Congressman an opportunity to assert the ⁷¹
privilege prior to disclosure of privileged materials to the Executive.” With respect to the paper
documents, however, the court concluded that, while the Speech or Debate Clause prevents the
compelled disclosure of privileged documents, it does not prohibit “inquiry into illegal conduct ⁷²
simply because it has some nexus to legislative functions.” Therefore, according to the court, a
return of all of the documents would be an inappropriate remedy for a violation of the Speech or
Debate Clause. As a result, the court concluded that Representative Jefferson is entitled to a
return of all legislative documents subject to the Speech or Debate Clause, whose protection is
absolute, while non-privileged materials—which may yet be subject to future challenges as the ⁷³
criminal trial proceeds—are not required to be returned at this time. Furthermore, the court
ordered that “the FBI agents who executed the search warrant shall continue to be barred from
disclosing the contents of any privileged or politically sensitive and non-responsive items, and

⁶⁶^Id^.^a^t¹³^.
⁶⁷^Id^.^a^t¹⁴^.
⁶⁸^Id^.^a^t¹⁵^.
⁶⁹^Id^.^a^t¹⁶^.
⁷⁰^Id^.^at¹⁷^(st^a^tⁱⁿ^{g t}^h^at^“[h]^o^w^t^h^at^acco^mm^o^d^a^tⁱ^oⁿⁱ^s^t^o^b^e^achⁱ^e^vedⁱ^s^b^e^st^d^e^t^e^rmⁱⁿ^ed^b^y^t^h^{e l}^e^gi^sl^atⁱ^v^{e an}^d
^execu^tⁱ^v^{e b}^r^an^ch^{es i}ⁿ^t^h^{e f}ⁱ^rstⁱⁿ^s^t^an^ce”).
⁷¹^Id^.^at¹⁷^.^T^h^{e co}^u^r^t^no^t^e^s,^ho^w^e^v^e^r,^t^h^at^t^hⁱ^s^con^c^l^u^si^onⁱ^s^at^l^eastⁱⁿ^p^a^rt^b^a^sed^on^t^h^{e assert}ⁱ^oⁿ^o^f^t^h^{e E}^x^ecu^tⁱ^v^{e t}^h^at
^{no a}^g^eⁿ^t^of^the^Ex^e^c^u^tiv^e^ha^{s se}^eⁿ^aⁿ^y^of^the^e^l^e^c^t^ronic^d^o^c^u^m^e^{nts or w}^{ill se}^e^the^m^{until c}^l^aⁱ^m^s^of^priv^ile^g^e^ha^v^e^be^eⁿ
^ad^j^u^di^cat^ed^.^S^{ee i}^d^.^a^t^17-^18.
⁷²^Id^.^a^t²⁰^(c^iting^B^r^ewst^er^{, 4}^{08 U}^.^{S. a}^t⁵²⁸⁾^.
⁷³^Id^.^a^t^21-²²^.

they shall not be involved in the pending prosecution or other charges arising from the ⁷⁴
investigation described in the warrant affidavit other than as regards responsiveness.”
Representative Jefferson’s specific claims of privilege, based on his review of the documents
pursuant to the D.C. Circuit’s July 28 Order, are still pending before the courts. These claims are
apparently still awaiting disposition before Judge Hogan. However, the documents for which
Representative Jefferson has not asserted privilege appear to have been turned over to the DOJ
and are currently being reviewed.
For some time now, there has been an open question as to whether the Speech or Debate Clause
immunizes a Member from civil actions related to office personnel. In 1995, with little debate
focused on the immunity issue, the House and Senate passed the Congressional Accountability ⁷⁵
Act (CAA), which provides for judicial review under various statutes of congressional
personnel actions. Section 413 of the CAA, however, declares that the authorization to bring
judicial proceedings under various provisions of the law does not constitute a waiver of the
Speech or Debate privilege of any Member. In light of the statute, as well as prior decisions of the ⁷⁶
appellate courts, both the Tenth Circuit Court of Appeals and the United States Court of Appeals ⁷⁷
for the District of Columbia (D.C. Circuit) have recently issued decisions that have refused to
automatically dismiss employment-related civil cases on the grounds that they are a violation of
the Speech or Debate immunity.
Prior to the passage of the CAA, the D.C. Circuit had held that the Speech or Debate Clause
immunized Members for personnel actions regarding at least some congressional employees. In ⁷⁸
Browning v. Clerk, U.S. House of Representatives, it was alleged that the termination of the first ⁷⁹
African American Official Reporter employed by the House was the result of racial animus. The
court, in dismissing the claims, held that personnel actions by Members were protected by the
Speech or Debate Clause if the “employee’s duties were directly related to the due functioning of ⁸⁰⁸¹
the legislative process.” Two years later, however, the Supreme Court in Forrester v. White
raised doubts as to whether Speech or Debate Clause immunity extended to employment actions.
In Forrester, a case raising the issue of judicial immunity for personnel actions, the Supreme
Court held that a state court judge did not have judicial immunity for the firing of a probation
officer, concluding that the immunity did not extend to “administrative, legislative, or executive
functions,” regardless of how important the functions may be to the “very functioning of the

⁷⁴^Id^.^a^t²³^(inte^r^na^{l q}^uota^tⁱ^ons^aⁿ^d^c^ita^tions^om^itte^{d). In l}ⁱ^g^h^{t of}^the^f^a^c^t^tha^t^Re^pre^s^eⁿ^ta^tiv^e^Je^ffe^{rson’s indic}^t^m^e^{nt w}^a^s
^f^ile^{d in the}^Ea^ste^r^{n Distric}^t^of^Vⁱ^r^g^inia^{, w}^h^ic^{h is a}^c^our^{t in}^t^h^e^F^o^u^r^t^h^Ci^rcuⁱ^t^,ⁱ^tⁱ^s^un^cl^{ear exact}^l^y^w^h^at^bⁱ^ndⁱⁿ^{g ef}^f^e^ct
^the^{D.C. Circ}^{uit’s h}^o^l^d^ing^s^aⁿ^{d re}^m^e^die^s^w^{ill ha}^v^e^{on tha}^t^c^r^im^ina^l^prose^c^u^ti^on.^G^e^ne^ra^ll^y^spe^a^kⁱ^ng^{, the}^de^cⁱ^sioⁿ^{s of}
^one^cⁱ^r^c^uit^a^r^e^not^bi^nd^ing^oⁿ^t^h^e^othe^r^s^.
⁷⁵^Cong^re^s^sⁱ^ona^{l A}^c^c^ounta^b^ility^A^c^t,^P^.^L^.¹^04-^1,¹⁰^{9 S}^t^a^t^{. 3}⁽¹⁹⁹^5).
⁷⁶^Bas^tieⁿ^v^.^O^ffic^e^of^Seⁿ^a^tor^Beⁿ^Nⁱ^ght^hor^s^e^C^a^m^pbe^ll^,²⁰⁹^F^.^S^u^pp^.²^d¹⁰⁹⁵^(D.^C^o^l^o.²⁰⁰²^{) (}^h^o^l^dⁱ^{ng t}^h^at^S^p^eech^o^r
^D^e^ba^te^im^m^unit^y^{did a}^p^ply^{to e}^m^ploy^m^e^{nt a}^c^tions⁾^,^rev’d^,^B^a^s^tieⁿ^v^.^O^ffic^e^of^Se^nat^or^Beⁿ^Nⁱ^g^h^th^or^s^e^C^a^m^pbe^ll^,³⁹⁰^th
^F^.^3d¹³⁰¹⁽¹⁰^Cⁱ^r^.²⁰⁰⁴⁾^.
⁷⁷^Fie^l^ds^v^.^O^f^fⁱ^c^e^{of E}^ddie^Be^rⁿ^ic^e^J^ohns^on^,⁴⁵⁹^F.3^d^{1 (}^D^.C^{. C}ⁱ^r^.²⁰⁰⁶⁾^.
⁷⁸⁷⁸⁹^F.^2d⁹²^{3 (}^D^.^C^.^Cⁱ^r^.¹⁹⁸⁶⁾^,^c^e^r^t^{. de}^nie^d^,⁴^{79 U}^.^S.⁹⁹^{6 (}¹⁹⁸⁶⁾^.
⁷⁹^Id^.^a^t⁹²^4.
⁸⁰^Id^.^a^t⁹²^9.
⁸¹⁴⁸^{4 U}^.^S^.²¹⁹⁽¹⁹⁸⁸⁾^.

court.”⁸² In other words, according to the Court, the employment decision in Forrester was ⁸³
administrative, not judicial; therefore, there was no entitlement to judicial immunity. ⁸⁴
Subsequently, in Gross v. Winter, the D.C. Circuit, applying Forrester, held that common-law
legislative immunity did not immunize a D.C. Council Member from suit for employment-related ⁸⁵
decisions. The court in Gross, however, declined to overturn the reasoning in Browning,
preferring instead to distinguish the case on the grounds that it dealt with a common law privilege
and not the Speech or Debate Clause.
In 2002, the United States District Court for the District of Colorado heard the first case involving
the Speech or Debate Clause as it related to an employment discrimination allegation brought ⁸⁶
pursuant to the CAA. The plaintiff, a former district office staffer for Senator Ben Nighthorse
Campbell, alleged age discrimination and retaliation for discrimination complaints under the
CAA. The Senator’s office moved to dismiss the claims, arguing that the Speech or Debate
Clause immunized the office from the claims because the “[p]laintiff’s duties of meeting with
constituents, gathering information for the Senator, discussing constituent suggestions and then
conveying them to the Senator, constitute actions that directly relate to the due functioning of the ⁸⁷
legislative process.” The district court found that the plaintiff’s duties were “not only to provide
Senator Campbell with information, but to take action on behalf of the Senator and provide him ⁸⁸
with recommendations on various legislative issues and agendas.” In addition, the court
described the plaintiff’s job responsibilities as including “gathering and conveying to Senator
Campbell himself, and to the Defendant, information critical to the Senator’s legislative ⁸⁹
agenda.” As a result, the court dismissed the suit, holding that because the plaintiff’s duties were
directly related to the due functioning of the legislative process, the immunity afforded Members ⁹⁰
of Congress by the Speech or Debate Clause applied.
The Court of Appeals for the Tenth Circuit, however, reversed the lower court’s decision,
distinguishing between “legislative” acts that are entitled to Speech or Debate immunity and non-⁹¹
legislative acts, which are not. The court noted that even if a legislative act had been involved, ⁹²
only the Senator’s actual vote would be entitled to immunity. The Senator’s office, on the other
hand, could still be liable for personnel decisions, as its actions fall outside the scope of the ⁹³
immunity. In addition, the court found, relying on Supreme Court precedent, that the
“[p]laintiff’s discrimination claim does not require proof of any legislative act by Senator

⁸²^Id^.^a^t²²^7-²⁸^.
⁸³^Id^.^a^t²²^9-³⁰^.
⁸⁴⁸⁷⁶^F.^2d¹⁶^{5 (}^D^.^C^.^Cⁱ^r^.¹⁹⁸⁹⁾^.
⁸⁵^Id^.^a^t¹⁷^{2 (s}^ta^ti^ng^tha^t^“^t^he^f^unc^ti^ons^j^udg^e^s^a^nd^le^gⁱ^s^l^a^t^ors^e^x^e^r^cⁱ^s^e^{in m}^a^kⁱ^ng^pe^rs^onne^{l de}^cⁱ^sⁱ^oⁿ^s^a^f^f^e^c^ting^{... a}^r^e
^ad^mⁱⁿⁱ^st^ratⁱ^v^e,ⁿ^o^t^j^u^dⁱ^ci^al^o^r^l^e^gi^sl^atⁱ^v^e”).
⁸⁶^Bastieⁿ^v^.^Cam^pbe^ll^,²⁰⁹^F.S^u^p^p^.^2d¹⁰⁹⁵⁽^D^{. C}^o^lo.²⁰⁰²⁾^.
⁸⁷^Id^.^a^t¹¹⁰¹^.
⁸⁸^Id^.^a^t¹¹⁰³^.
⁸⁹^Id^.^a^t¹¹⁰⁴^.
⁹⁰^Id^.^at¹¹⁰³^(st^a^tⁱⁿ^{g t}^h^at^“t^h^e^S^p^eech^o^r^Deb^a^t^e^Cl^au^{se p}^r^o^vⁱ^d^{es i}^m^m^uⁿⁱ^t^y^t^o^M^e^m^b^{ers o}^f^Coⁿ^g^{ress a}ⁿ^d^t^h^ei^{r ai}^d^e^{s f}^o^r
^pe^r^s^on^ne^{l a}^c^tions^ta^k^e^{n w}^{ith r}^e^s^p^e^c^t^{to e}^m^ploy^e^e^s^w^hos^e^dutie^s^a^r^e^dir^e^c^tly^r^e^la^te^{d to the}^due^f^unc^ti^oⁿ^ing^of^the
^le^gⁱ^sla^tiv^e^proc^e^ss”^);^se^{e a}^l^soⁱ^d^.^a^t¹¹^{04 (}^s^ta^ti^ng^tha^t^“^t^he^pe^r^s^oⁿⁿ^e^{l a}^c^tions^ta^k^e^{n by}^[^t^he^O^f^fⁱ^c^e^]^a^g^aⁱ^ns^{t the}^Plaⁱ^ntif^f
^{are a}^f^f^o^rd^ed^S^p^eech^o^r^Deb^a^t^e^Cl^au^{se i}^m^m^uⁿⁱ^t^y^”).
⁹¹^Bas^tieⁿ^v^.^O^ffic^e^of^Seⁿ^a^tor^Beⁿ^Nⁱ^ght^hor^s^e^C^a^m^pbe^ll^{, 39}⁰^F^.^3d¹³⁰¹^,¹³¹⁵⁽¹⁰^th^Cⁱ^r^.²⁰⁰⁴⁾^.
⁹²^Id^.^a^t¹³¹⁵^.
⁹³^Id^.^a^t¹³^15-¹⁶^.

Campbell or his staff.”⁹⁴ Senator Campbell had argued that the plaintiff’s job function constituted
a legislative act because the information received from constituents or other members of the
public could affect his drafting and supporting of legislation and ultimately his committee and
floor votes. The court disagreed, classifying such functions as “informal information gathering,”
which is distinct from the type of information gathering performed by legislative committees. The
gathering of information by committees, according to the court, is clearly protected by Supreme ⁹⁵
Court precedent; however, extending the protection to other forms of information gathering by ⁹⁶
individual Members would exceed the Court’s pronouncements of the Clause’s scope.
Moreover, the court specifically refused to adopt the D.C. Circuit’s reasoning in Browning v.
Clerk, noting that, in its opinion, Browning extended farther than the Supreme Court’s cases
involving the Speech or Debate Clause. The court, however, did note that even had it chosen to
adopt and follow the Browning standard, this employee’s case would be entitled to proceed
because the duties performed were not central to the legislative process and, therefore, not ⁹⁷
entitled to the Speech or Debate Clause’s protection.
The Tenth Circuit’s decision in Bastien created a conflict between the circuits that led the D.C. ⁹⁸
Circuit to consolidate two pending cases and hear them en banc. The two cases involve a House
office, that of the Honorable Eddie Bernice Johnson, as well as a Senate office, that of Senator ⁹⁹
Mark Dayton. Neither case has been decided on the merits by any court. The D.C. Circuit
sought to determine whether employment suits brought under the CAA were required to be
dismissed by the Speech or Debate Clause, and whether Browning v. Clerk of U.S House of ¹⁰⁰
Representatives should remain the law of the circuit. With 8 of the 10 members of the D.C.
Circuit participating, the court decided unanimously that the Speech or Debate Clause does not ¹⁰¹
require the dismissal of suits brought under the CAA. With respect to the continued validity of
Browning, the court also held unanimously that the Browning framework is no longer consistent ¹⁰²
with Supreme Court precedent and should be abandoned. Despite this agreement, however, the
court splintered regarding the question of how much of a role the Speech or Debate Clause should
play in such cases.
The unresolved issue involves the proper role that the Speech or Debate Clause may play during
the course of employment litigation. The fact that plaintiffs may be able to bring prima facie cases
against Members of Congress under the CAA does not mean that the Speech or Debate Clause is
no longer a relevant consideration. On the one hand, as Judge Randolph, writing for a plurality of
the court, notes, the judicially created, burden-shifting framework under which employment

⁹⁴^Id^.^a^t¹³¹⁶^(c^iting^Gra^vel^v.^Uⁿⁱ^t^ed^S^t^a^t^es^{, 4}⁰⁸^U^.^S.⁶⁰^{6 (}¹⁹⁷²⁾⁾^.
⁹⁵^Id^.^a^t¹³¹⁶^(c^iting^Gra^vel^,⁴⁰^{8 U}^.^{S. a}^t⁶¹^9-²¹⁾^.
⁹⁶^Id^.⁽^s^ta^ti^ng^tha^t^“^[^t^]^{o e}^x^te^nd^pr^ot^e^c^{tion t}^oⁱⁿ^f^o^r^m^a^l^inf^o^r^m^a^{tion g}^a^the^r^ing^...^w^ould^be^the^e^quiv^a^le^nt^of^e^x^te^nding
^S^p^eech^o^r^Deb^a^t^e^Cl^a^u^{se i}^m^m^uⁿⁱ^t^y^t^o^d^e^b^a^t^e^{s b}^e^f^o^{re l}^o^cal^radⁱ^o^st^atⁱ^oⁿ^s^o^r^Ro^t^a^ry^Cl^u^b^s^”).
⁹⁷^Id^.^a^t¹³¹⁹⁽^s^ta^ting^t^h^a^t^“^[ⁱ^]^{n a}ⁿ^y^e^v^eⁿ^{t, e}^v^eⁿ^unde^r^t^h^e^Br^owⁿⁱⁿ^g^f^o^rm^u^l^atⁱ^oⁿ^,^P^l^aiⁿ^tⁱ^f^f^h^e^{re p}^r^evai^l^s^,^b^ecau^{se h}^e^{r j}^o^b
^dutie^s^{do not}^s^a^tis^f^y^the^Gra^vel^st^an^d^a^rd^f^o^{r l}^e^gi^sl^atⁱ^v^{e act}^”).
⁹⁸^An^eⁿ^ba^nc^p^r^o^ceedⁱⁿ^{g i}^s^on^{e “wi}^t^h^al^l^j^u^d^g^{es p}^r^esen^t^an^d^p^a^rtⁱ^cⁱ^p^atⁱⁿ^g;ⁱⁿ^f^u^l^l^c^o^u^r^t^.^{” B}^LA^C^K^’^S^L^AW^D^I^C^T^I^ON^ARY^,
⁵⁴⁶⁽⁷^th^e^d^.¹⁹⁹⁹⁾^.
⁹⁹^Se^na^tor^D^a^y^t^{on ha}^s^sⁱ^nc^e^r^e^tir^e^d^f^r^o^m^the^Se^na^te^{, w}^h^ic^h^h^a^{s rai}^s^{ed t}^h^{e qu}^estⁱ^oⁿ^o^f^w^h^et^h^e^{r t}^h^{e case i}ⁿ^vo^l^vⁱⁿ^{g h}ⁱ^s
^of^fⁱ^c^e^is^m^oot.
¹⁰⁰^Fie^l^ds^v^.^O^f^fⁱ^c^e^{of E}^ddie^Be^rⁿ^ic^e^J^ohns^on^,⁴⁵^{9 F.3}^d^{1, 3}⁽^D^.C^.^Cⁱ^r^.²⁰⁰⁶⁾^.
¹⁰¹^Id^.^at¹⁷^;^{see a}^l^soⁱ^d^.^{at 1}⁷^(Ro^d^g^e^{rs, J., co}ⁿ^c^u^rrin^g^);^id^{. a}^t^25-²⁶⁽^B^r^o^wⁿ^{, J}^{., c}^o^nc^ur^rⁱ^ng⁾^;^id.^a^t¹⁸⁽^T^a^t^e^l^{, J}^.,
^c^onc^ur^rⁱ^ng⁾^.
¹⁰²^Id^.^at¹⁷^;^{see a}^l^soⁱ^d^.^{at 1}⁷^(Ro^d^g^e^{rs, J., co}ⁿ^c^u^rrin^g^);^id^{. a}^t^25-²⁶⁽^B^r^o^wⁿ^{, J}^{., c}^o^nc^ur^rⁱ^ng⁾^;^id.^a^t¹⁸⁽^T^a^t^e^l^{, J}^.,
^c^onc^ur^rⁱ^ng⁾^.

discrimination cases are litigated—where a plaintiff proves a prima facie case of discrimination,
which the employer rebuts by producing evidence that its conduct was nondiscriminatory, and ¹⁰³
which the plaintiff then seeks to demonstrate is pretextual—may present special problems ¹⁰⁴
when combined with the Speech or Debate Clause. These problems may arise specifically
when the nondiscriminatory reason for the adverse employment action was motivated by the
employee’s participation in the legislative process or in activities protected by the Speech or
Debate Clause.
Members remain protected from “inquiry into legislative acts or the motivation for actual ¹⁰⁵
performance of legislative acts.” Moreover, the Speech or Debate Clause’s testimonial privilege
prevents a Member from “being ‘questioned’ in a place other than the House or Senate” about ¹⁰⁶
legislative acts. These protections afforded by the Speech or Debate Clause may, according to
Judge Randolph, depending on the facts of the case, frustrate or even prevent the pursuit of
employment discrimination claims, as they would likely prevent a plaintiff from presenting
evidence to challenge the Member’s assertion that there was a legitimate nondiscriminatory basis ¹⁰⁷
for the employment decision. Although Judge Randolph attempts to provide some guidelines ¹⁰⁸
for invoking the Speech or Debate Clause’s protection, he refrains from ultimately answering
the question, noting that decisions about whether the asserted activity is protected by the Speech ¹⁰⁹
or Debate Clause will be rendered by district court judges on a case-by-case basis.
On the other hand, Judge Janice Rodgers Brown, writing for three members of the court, takes a
slightly different approach. First, Judge Brown notes that the CAA creates a “legal fiction” by
making the Member’s “employing office” liable for any employment discrimination and not the ¹¹⁰
Member or his aides personally. As such, Judge Brown concludes that the “employing office,”
as an “orgainzational division within Congress,” is not in any way entitled to protection under the ¹¹¹
Speech or Debate Clause. Furthermore, according to Judge Brown, to the extent that the
Member personally is implicated, there remains the Speech or Debate Clause’s evidentiary
privilege, which provides ample protection to the Member from disclosure or discussion of ¹¹²
decisions that involve “legislative acts.”
With respect to the potential evidentiary and procedural problems raised by Judge Randolph’s
opinion, Judge Brown appears to suggest a narrower reading of the Speech or Debate Clause.

¹⁰³^S^{ee T}^exa^{s Dep}^’^t^o^f^Cmt^y^.^A^ffa^irs^v.^Bu^rdⁱⁿ^e^,⁴⁵^{0 U}^.^S.²^48,²^53-⁵⁶⁽¹⁹⁸¹⁾^;^{see also}^McDoⁿⁿ^{ell Dou}^g^la^{s Co}^rp.^v.
^Green^{, 41}^{1 U}^.^S.⁷^{92 (}¹⁹⁷³⁾^.
¹⁰⁴^Fie^l^ds^,⁴⁵^{9 F}^.³^d^a^t¹⁴^-¹^6.
¹⁰⁵^Id^.^a^t¹⁴^(c^iting^Uni^t^e^d^S^t^at^{es v.}^B^r^ewst^er^{, 408 U}^.^S.⁵⁰^1,⁵⁰^{8 (}¹⁹⁷²⁾^;^Brow^{n &}^W^illiamson^,⁶²^F.^{3d 4}⁰⁸^,⁴¹⁵^n.⁵
⁽^D^.C^{. C}ⁱ^r^.¹⁹⁹⁵⁾⁽^s^ta^ting^tha^t^“^[^e^]^v^e^{n w}^h^eⁿ^pr^ope^r^l^y^s^ubje^c^t^to^s^u^it,^m^e^m^b^e^r^s^of^C^ong^r^e^s^s^a^r^e^pr^iv^ileg^e^{d a}^g^aⁱ^ns^{t the}
^e^v^ideⁿ^tia^ry^use^a^g^aⁱ^{nst the}^m^of^aⁿ^y^le^gⁱ^sl^a^tiv^e^a^c^t^{, e}^v^eⁿ^if^th^e^a^c^t^{is not c}^l^aⁱ^m^e^{d to}^be^itse^l^f^ille^g^a^{l, b}^u^{t is}^of^fe^re^{d only}
^{to s}^h^ow^m^o^tiv^e^....”^));^s^e^e^als^o^Uⁿ^ite^{d St}^ate^s^v^.^H^e^ls^tos^kⁱ^,⁴⁴^{2 U}^.^S.⁴⁷⁷^{, 4}⁸⁷^-⁸⁹⁽¹⁹⁷⁹⁾^;^Uⁿⁱ^t^e^d^S^t^at^{es v.}^Jo^hn^soⁿ^,³⁸³
^U.^S^.¹⁶^9,¹⁶^{9 (}¹⁹⁶⁶⁾^.
¹⁰⁶^Id^.^(c^iti^ng^He^lstoskⁱ^,⁴⁴^{2 U.}^S^.^at⁴⁹⁰⁾^.
¹⁰⁷^Id^.^a^t^15-¹⁶^.
¹⁰⁸^J^udg^e^Ra^nd^olp^h^’s^o^pⁱⁿ^io^{n i}^ndic^a^te^s^tha^t^aⁿ^a^f^fⁱ^da^v^{it s}^hould^be^s^u^b^m^itte^{d f}^r^o^m^a^pe^rs^{on e}^lig^ible^toⁱⁿ^v^o^k^e^the^Cla^u^s^e
^a^{nd t}^h^a^t^{it s}^h^o^u^ldⁱⁿ^dic^a^t^e^the^“^l^e^g^isla^tiv^e^a^c^tⁱ^v^it^y^”^{or inte}^g^r^a^l^pa^rt^of^the^le^gⁱ^sla^tiv^e^proc^e^{ss the}^plaⁱⁿ^tiff^s^{suit w}^ill
^re^quireⁱⁿ^q^u^iry^into.^S^{ee i}^d^.^a^t¹⁵^-^17.
¹⁰⁹^Id^.^a^t^17-¹⁸^.
¹¹⁰^Id^.^a^t²⁶⁽^B^r^o^wⁿ^{, J}^.^,^c^onc^ur^rⁱ^ng⁾^.
¹¹¹^Id^.^a^t²⁷⁽^B^r^o^wⁿ^{, J}^.^,^c^onc^ur^rⁱ^ng⁾^.
¹¹²^Id^.^(Br^o^wⁿ^{, J., co}ⁿ^c^u^rriⁿ^g^).

According to Judge Brown’s opinion, as long as the Member or other potentially immune aides
are not themselves providing evidence or giving testimony, the Speech or Debate Clause is not
implicated and, therefore, plaintiffs can potentially pursue more claims under this ¹¹³
interpretation. However, if the suit requires such evidence or testimony, then, even under Judge
Brown’s interpretation, the district courts will have to address individual assertions of Speech or ¹¹⁴
Debate immunity on a case-by-case basis.
A writ of certiorari to the U.S. Supreme Court was sought by Senator Dayton’s office. In
addition, Senator Dayton’s office filed a statement of jurisdiction asserting that the CAA affords ¹¹⁵
his office an appeal by right to the U.S. Supreme Court. On January 19, 2007, the Court
postponed consideration of the question of jurisdiction and set oral argument for April 24, ¹¹⁶
2007. The Court heard argument specifically on the following questions: (1) Was the Office of
Senator Mark Dayton entitled to appeal the judgment of the Court of Appeals for the District of
Columbia Circuit directly to this Court? and (2) Was this case rendered moot by the expiration of ¹¹⁷
the term of office of Senator Dayton?
The Court issued its decision on May 21, 2007, unanimously holding that it lacked jurisdiction to ¹¹⁸
reach the merits of the case. Senator Dayton had sought review on the basis of Section 412 of
the Congressional Accountability Act, which states that “[a]n appeal may be taken directly to the
Supreme Court of the United States from any interlocutory or final judgment, decree, or order of ¹¹⁹
a court upon the constitutionality of any provision of this chapter.” According to the Court, this
section cannot serve as the basis for jurisdiction because the D.C. Circuit’s “determination that
jurisdiction attaches despite a claim of Speech or Debate Clause immunity is best read as a ruling ¹²⁰
on the scope of the Act, not its constitutionality.” Moreover, the Court concluded that this
reading of Section 413 as limiting appellate review is “faithful to our established practice of ¹²¹
interpreting statutes to avoid constitutional difficulties” and is consistent with the Court’s ¹²²
jurisprudence holding that “statutes authorizing appeals are to be strictly construed.” Finally,
the Court concluded that there was no basis for exercising its discretionary certiorari jurisdiction

¹¹³^Id^.^at³²^(Bro^wⁿ^,^J.^,^coⁿ^c^u^r^rⁱⁿ^g⁾^(st^a^tⁱⁿ^{g t}^h^at^“^[^b]^ecau^{se t}^h^{e m}^e^m^b^{ers are n}^o^t^d^e^f^eⁿ^d^aⁿ^t^s,^t^h^{e sui}^t^s^do^no^t^b^u^r^d^eⁿ
^th^em^w^ith^d^e^f^eⁿ^s^{e co}^{sts n}^o^r^p^l^{ace th}^em^{at an}^y^risk^o^f^p^e^rsoⁿ^a^{l liab}ⁱ^lity^{, an}^d^{as lo}ⁿ^g^{as m}^e^m^b^{ers an}^d^th^{eir aid}^e^{s are n}^o^t
^t^h^em^sel^v^{es ‘q}^u^e^stⁱ^oⁿ^e^d^,^’^anⁱⁿ^quⁱ^r^yⁱⁿ^t^o^l^e^gi^sl^atⁱ^v^{e act}^{s d}^o^e^{s n}^o^tⁱ^m^p^lⁱ^cat^{e t}^h^{e S}^p^eech^o^r^Deb^a^t^e^Cl^au^se.^Cf.^Vil^l^{. of}
^Ar^lingt^on^H^e^igh^t^s^v^.^M^e^tr^{o. H}^o^us^{. D}^e^v^.^C^o^r^p^.^{, 4}²⁹^U^.^S.²⁵^2,²⁶^6-⁶⁸⁽¹⁹⁷⁷⁾^”⁾^.
¹¹⁴^Id^.⁽^B^r^o^wⁿ^{, J}^{., c}^o^nc^ur^rⁱ^ng⁾⁽^s^ta^ti^ng^tha^t^“^[^w^]^e^ne^e^d^not^e^x^plor^e^t^h^e^pr^e^cⁱ^s^e^c^onto^u^r^s^of^this^pr^iv^ile^g^e^toda^y^;^the
^dⁱ^st^ri^ct^cou^r^t^m^a^y^ad^d^r^{ess t}^h^{ese p}^r^o^b^l^em^{s as t}^h^e^y^ari^s^e”).
¹¹⁵^Se^e^Cong^re^s^sⁱ^ona^l^A^c^c^ounta^b^ilit^y^A^c^t,^P^.^L^.¹⁰^{4-1 § 41}^{2, 10}⁹^Sta^t^.^{3 (}¹⁹^{95) (c}^odifⁱ^e^d^a^t²^U^.^S.C.^§¹⁴¹^{2 (}²⁰⁰⁰⁾⁾
⁽^s^ta^ting^tha^t^“^[^a^]^{n a}^p^pe^a^l^m^a^y^be^ta^k^e^{n dir}^e^c^tly^{to the}^Su^pr^e^m^e^C^our^{t of}^the^Uⁿ^ite^{d Sta}^t^e^s^f^r^om^aⁿ^y^inte^r^l^oc^ut^or^y^or
^fⁱ^na^{l judg}^m^e^{nt, de}^c^r^e^e^,^or^or^de^r^o^f^a^c^our^{t up}^on^the^c^o^ns^tit^uti^ona^lit^y^o^f^aⁿ^y^pr^ov^is^ion^of^this^c^h^a^p^te^r^.^”⁾^.
¹¹⁶^S^{ee Of}^fⁱ^{ce o}^f^S^e^na^t^o^{r D}^a^yt^oⁿ^v.^Haⁿ^s^on^{, N}^o^{. 0}⁶^-6¹⁸^,^av^aila^ble^at^htt^p^://w^ww^.supre^m^e^c^ourtus.g^o^v^/^doc^k^e^t/06-
⁶¹⁸^.htm^.
¹¹⁷^Id^.
¹¹⁸^Da^yt^oⁿ^v.^Han^s^on^,⁵⁵^{0 U}^.^S.^_^__,¹²^{7 S}^.^C^t^.²⁰¹⁸⁽²⁰⁰⁷⁾^{. T}^e^c^hnic^a^lly^{, the}^C^our^t’^s^de^cⁱ^sⁱ^{on w}^a^s^by^a^v^o^te^of^8-⁰
^w^{ith Chie}^f^Justic^e^Robe^{rts n}^o^{t pa}^r^tic^ipa^ting^,^a^s^he^ha^d^be^eⁿ^{a m}^e^m^b^{er o}^f^t^h^{e D.}^C.^Ci^rcuⁱ^t^w^h^enⁱ^t^rend^eredⁱ^t^s^d^eci^si^oⁿ
ⁱⁿ^t^hⁱ^s^case.
¹¹⁹^Cong^re^s^sⁱ^ona^{l A}^c^c^ounta^b^ility^A^c^t,^P^.^L^.¹^04-¹^{§ 4}¹²^,¹⁰⁹^Sta^t^.^{3 (}¹⁹⁹⁵^{) (c}^od^if^ie^{d a}^t^{2 U}^.^S.C.^{§ 1}⁴¹²⁽²⁰⁰⁰⁾⁾
⁽^e^m^pha^sⁱ^s^a^dde^d)^.
¹²⁰^Da^ytoⁿ^,⁵⁵^{0 U.}^S^.^at^__^__^,¹²⁵^S^.^C^t^.^at²⁰²⁰^.
¹²¹^Id^.^a^t²⁰²¹^(c^iting^Cl^a^r^{k v.}^Ma^rtⁱⁿ^ez^{, 5}^{43 U}^.^S.³⁷^1,³⁸^1-³^{82 (}²⁰⁰⁵⁾⁾^.
¹²²^Id^{. (c}^iti^ng^{Perry Ed}^.^Assn^.^v.^{Perry L}^o^ca^{l E}^d^u^c^a^t^o^{rs’ Assn}^.,⁴⁶^{0 U}^.^S.^37,⁴³⁽¹⁹⁸³⁾^;^s^e^e^als^o^F^o^r^nar^is^v^.^Rid^g^e^T^ool
^Co^.^,⁴⁰^{0 U}^.^S^.⁴¹^,⁴²^{, n}^.¹⁽¹⁹⁷⁰⁾⁽^p^e^r^c^u^rⁱ^a^m⁾⁾^.

as the D.C. Circuit’s decision does not conflict with any other Circuit with respect to the
application of the Speech or Debate Clause in suits brought challenging personal actions by ¹²³
Members of Congress.
^To^d^d^B^.^Ta^t^e^l^m^an
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^t^t^a^t^e^l^m^aⁿ^@^c^rs^.l^oc.g^o^v^{, 7-}⁴⁶⁹⁷

¹²³^Id^.⁽^c^om^pa^rⁱ^ng^Fⁱ^el^d^s^v.^Of^fⁱ^{ce o}^f^E^d^di^{e B}^e^rnⁱ^{ce Jo}^hn^son^,⁴⁵^{9 F.}^3d^{1 (}^D^.C^.^Cⁱ^r^.²⁰⁰⁶⁾⁽^c^a^s^e^be^low⁾^,^{with B}^a^stie^{n v}^.
^O^ffic^e^{of Se}^nat^or^Be^{n N}ⁱ^g^h^th^or^s^e^C^a^m^pbe^ll^{, 3}⁹⁰^F.^3d¹³⁰¹⁽¹⁰^th^Cⁱ^r^.²⁰⁰⁴⁾^.