Speech or Debate Clause
In the United States Constitution Article I, Section 6, Clause 1, the Speech or Debate Clause declares that members of both houses of Congress:
| “ | shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place. | ” |
The purpose of the Speech and Debate Clause is to protect members from being arrested by the President or other representatives of the Executive branch on a ploy to inhibit them from voting a specific way or taking actions with which he/she might hold an opposing view.
In court decisions this is more frequently referred to as the Speech or Debate Clause, rather than the Speech and Debate Clause. Overall, more than 1,400 court decisions refer to this principle, including 44 decisions by the U.S. Supreme Court.
Senator Lindsey Graham (R-SC) cited this as a defense against a subpoena by a Democrat prosecutor to compel him to answer questions under oath before an unusual special purpose grand jury in Georgia.
Contents
Prominent cases
In Fields v. Office of Johnson, 459 F.3d 1 (2006), the D.C. Circuit en banc narrowed the scope of the Speech or Debate Clause such that it not impeded lawsuits by Capitol staff based on alleged discrimination:
| “ | Legislative immunity under the Speech or Debate Clause is limited to matters that are part of, or integral to, the due functioning of the legislative process. It is not enough that a Member's conduct is within the outer perimeter of the legislative process. Cf. Brewster, 408 U.S. at 513-16, 528. | ” |
Fields v. Office of Johnson, 373 U.S. App. D.C. 32, 43-44, 459 F.3d 1, 12-13 (2006).
The Speech or Debate Clause “reflects the Founders’ belief in legislative independence.” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir. 2015) (citing United States v. Brewster, 408 U.S. 501, 524 (1972)).
Deprives Courts of Subject Matter Jurisdiction
In late 2022, the D.C. Circuit held that the Speech or Debate Clause bars subject matter jurisdiction over any litigation against a congressman for activity within the immunity of this Clause:
| “ | ... the Speech or Debate Clause bars this suit. The Court concludes that it does, and it therefore dismisses Meadows's claims for lack of subject-matter jurisdiction. | ” |
Meadows v. Pelosi, Civil Action No. 1:21-cv-03217 (CJN), 2022 U.S. Dist. LEXIS 198129, at *3 (D.D.C. Oct. 31, 2022).
Staffing decisions
| “ | This court has held that a staffing decision of a Member of Congress is protected by the Speech or Debate Clause only insofar as the employee's duties are "directly related to the due functioning of the legislative process." Browning v. Clerk, House of Representatives, 252 U.S. App. D.C. 241, 789 F.2d 923, 929 (1986) (discharge of Official Reporter protected under Speech or Debate Clause). Browning built upon our earlier decision in Walker v. Jones, 236 U.S. App. D.C. 92, 733 F.2d 923, 931 (1984), where we held that the Speech or Debate Clause did not protect the decision to discharge the general manager of the House of Representatives restaurant system .... | ” |
United States v. Rostenkowski, 313 U.S. App. D.C. 303, 59 F.3d 1291, 1302 (1995).
Grand jury
| “ | In summary, for the purpose of our jurisdictional analysis, we conclude that at least under some circumstances the Speech or Debate Clause prohibits not only reference to protected material on the face of an indictment but also the use of that material before the grand jury. | ” |
United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C. Cir. 1995).
