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CHAPTER 11

Privilege B. SUITS AGAINST THE HOUSE OR ITS MEMBERS; SUBPENAS § 2. In General; Nature and Scope of Privilege § 3. The Speaker § 4. The Clerk-Civil Actions § 5. -- Criminal Actions § 6. The Sergeant at Arms and Doorkeeper § 7. The Members § 8. Committees § 9. — Committee Employees § 10. Authorization for Court Appearance or Disclosure of Docu

ments § 11. Effect of Adjournment $ 12. Providing for Legal Counsel

B. SUITS AGAINST THE HOUSE OR ITS MEMBERS; SUBPENAS § 2. In General; Nature and Scope of Privilege

$ 2.1 On September 17, 1980, the House adopted House Resolution 722, which provides general authority to the Members, officers, and employees of the House to comply with subpenas served on them in relation to their official functions, and established new procedures to be followed in complying with subpenas. 126 Cong. Rec. p. ......, 96th Cong. 2d Sess. Until the 95th Congress, whenever a Member, officer, or employee received a subpena, the House had to consider the adoption of a resolution authorizing a response. The House would decide in each case whether the person should or should not comply with the subpena. Then on January 4, 1977, and again on January 15, 1979, the House adopted a resolution (H. Res. 10) which granted general authority to Members, officers, and employees to respond to subpenas duces tecum, but reserving to itself the right to revoke this permission in any specific case. The resolution established a procedure by which automatic compliance could be effected without the necessity of a House vote. (See $ 10, infra.) House Resolution 722 revises this procedure and adds new steps to be taken in responding to subpenas relating to the official functions of the House. The resolution (1) directs compliance with such subpenas, subject to the applicable constitutional and legal rights of the party served and of the House itself, unless otherwise determined pursuant to the resolution; (2) requires that the Speaker be promptly notified of the receipt of such subpena and that such notification be laid before the House; (3) requires that any Member, officer, or employee who intends to seek a judicial determination as to the propriety of the issuance of the subpena must first notify the Speaker thereof; (4) requires that, when a determination has been made as to the propriety of the subpena, the Speaker and the House are so notified. 126 CONG. REC. p. 96th Cong. 2d Sess., Sept. 17, 1980 (H. Res. 722]. Note: The purpose of the requirement that those seeking a judicial determination as to the validity of a subpena must give notice is to insure that the Speaker is informed when legal proceedings could involve the rights and privileges of the House, its Members, officers, and employees, are anticipated, and in order that the Speaker can properly discharge his duties in the protection of the House and in the preservation of its integrity and rights and privileges.

$ 2.2 The Speaker laid before the House a communication from the Clerk, informing the House that he had been served with a summons and complaint in a civil action brought in a Federal court in which the U.S. Congress had been named as a defendant. 119 CONG. REC. 349991, 34992, 93d Cong. 1st Sess., Oct. 25, 1973.

§ 2.3 The Speaker laid before the House a communication from the Clerk, informing the House of the receipt of a summons and complaint following the sine die adjournment of the preceding Congress, naming the House and Senate as defendants in a civil action brought in Federal court. 117 CONG. Rec. 1503, 92d Cong. 1st Sess., Feb. 3, 1971. Note: The Clerk requested the U.S. Attorney for the Eastern District of Pennsylvania to represent the House under the provisions of 2 USC § 118, although technically the Clerk had not been named in his official capacity as a party defendant.

$ 2.4 The Clerk having received a summons and complaint naming the House of Representatives as a defendant in a civil action pending in a Federal court, informed the Speaker who laid the matter before the House. The Clerk advised that he had, pursuant to 2 USC § 118, requested the U.S. Attorney for the District of Columbia to represent the House in the matter 119 CONG. Rec. 41258, 93d Cong. 1st Sess., Dec. 13, 1973.

$ 2.5 The Speaker laid before the House a communication from the Clerk, informing the House of the receipt of a summons and complaint, naming the Speaker and Clerk as defendants in a civil action in a Federal District Court, and requesting the Speaker to obtain representation by the U.S. Attorney pursuant to 2 USC $ 118. 119 CONG. Rec. 29, 93d Cong. 1st Sess. Jan. 3, 1973. Note: Several Members of the House were also named as defendants in this action, but under 2 USC § 118 they could not request representation by the U.S. Attorney. The action was subsequently dismissed.

$ 2.6 The Speaker, the majority and minority leaders and certain members of a committee to investigate the right of a Member to be sworn, having been summoned and named as defendants in a civil action brought by that Member in the U.S. District Court for the District of Columbia, the Speaker laid the matter before the House. 113 CONG. REC. 6035-49, 90th Cong. 1st Sess., Mar. 9, 1967 (H. Res. 376, providing special counsel for the House, the Speaker and other Members named in the action brought by Adam C. Powell, former Representative from New York, was adopted by the House).

§ 2.7 The Clerk and the Sergeant at Arms of the House, having been served with a subpena duces tecum requiring their presence before a Federal grand jury and calling upon both officers to produce original papers of the House within their control, informed the Speaker who laid the matter before the House. 114 CONG. REC. 80, 90th Cong. 2d Sess., Jan. 16, 1968 (H. Res. 1022, authorizing the Clerk and Sergeant at Arms to respond to the subpena duces tecum).

$ 2.8 The Speaker laid before the House a communication from the Clerk, informing the House of the receipt of a summons and compliant naming the House as a defendant in a federal civil action seeking to enjoin the impeachment proceedings pending in the House. 120 CONG. REC. 16496, 93d Cong. 2d Sess., May 28, 1974 [National Citizens' Committee for Fairness to the President et al. v U.S. Senate, U.S. House of Representatives, et al.)

$ 2.9 A U.S. District Court held that a suite alleging wrongful use of government funds could not be brought against officers of the House under the False Claims Act where the plaintiff did not possess information supporting his allegations independent of that re ported in the press and within the possession of federal investigators. 123 CONG. Rec. 17725, 95th Cong. 1st Sess., June 7, 1977, setting forth a communications from the Clerk to the Speaker advising that a suit brought against the Clerk, Sergeant at Arms, and Assistant Sergeant at Arms had been dismissed in a U.S. District Court, and transmitting the memorandum order of the court dismissing the suite for failure of the plaintiff to satisfy the jurisdictional requirements of the False Claims Act. Note: In this case, United States ex rel. Thompson v Pendergast (D.D.C. 1977), Civ. Action No. 76-2006, an action was brought under the False Claims Act (31 USC $8 231 et seq.) to recover funds which had allegedly been wrongfully claimed from the government by the defendants.

The basis for the action was an article in the Washington Post con1 cerning the activities of a Congressman who was the subject of a s government investigation. It appeared to the court that the act was

not intended to authorize suits by those having no information or facts of their own but rather have obtained information simply from governmental investigations and newspaper articles. $2.10 Several officers and employees of the House informed the Speaker that they had received subpenas duces tecum or ad testificandum to appear as prosecution witnesses in a Federal criminal

action involving a Member as the defendent; the Speaker laid the Vi subpenas and various related court orders before the House. 124

Cong. Rec. 31758, 95th Cong. 2d Sess., Sept. 26, 1978 (see H. Res. 1383, authorizing compliance with subpenas in U.S. v. Diggs). 83. The Speaker

$ 3.1 When the Speaker is summoned in a civil action, the privilege of the House in involved, and he submits the matter to the 1 House. 109 CONG. Rec. 504, 88th Cong. 1st Sess., Jan. 17, 1963.

Note: In this instance, a U.S. Deputy Marshall came to the Speaker's Rooms with a summons, but the Speaker advised him by telephone that he would accept service at his hotel that evening, but did not want to accept service at the Capitol. See also 111 Cong. Rec. 2645, 89th Cong 1st Sess., Feb. 11, 1965, where the Speaker announced from the Chair that he had accepted service at his residence of a subpena duces tecum from a U.S. District Court.

$ 3.2 The Speaker, having been named in his official capacity as a defendant in a suit brought in a U.S. District Court and having received a summons requiring him to answer the complaint in the action within 60 days, laid the matter before the House for its consideration. 115 Cong. Rec. 24002, 91st Cong. 1st Sess., Sept 3, 1969. Note: The case, Thomas W. Jones et al. v Richard Nixon, James Hare and the United States House of Representatives, was brought in the U.S. District Court for the Eastern District of Michigan and involved the apportionment of Representatives in the House. After the Speaker had been served with a summons, he requested the Attorney General to provide legal representation in the case.

$3.3 The Speaker, having been served with a subpena duces tecum in a federal criminal action, notified the House and announced that the papers requested in the subpena were not within his possession or control. 120 CONG. Rec. 21907, 93d Cong. 2d Sess., July 1, 1974. Note: The subpena duces tecum, issued on behalf of defendant G. Gordon Liddy in the "Watergate criminal trial,” [U.S. v John D. Ehrlichman et al.] directed the Speaker to produce documents within the custody of the Committee on Armed Services; that committee had already refused to turn over those documents in response to similar subpenas issued and served upon them. The Speaker was thus advised to lay the matter before the House and to announce his lack of custody so that the House, by refusing to take action, would be responding for the record to the subpena.

8 4. The Clerk-Civil Actions

$ 4.1 The Speaker laid before the House a letter and communication from the Clerk, informing the House of the receipt of a summons, naming the Clerk as a defendant in a civil action. The letter advised the House that the Clerk had, pursuant to 2 USC § 118, re quested the U.S. Attorney for the District of Columbia to represent him in the action. 114 CONG. REC. 19359, 90th Cong. 2d Sess., July 1, 1968.

§ 4.2 The Speaker laid before the House a communication from the Clerk, advising that he had been served with a summons and complaint in a civil action in a Federal court brought by the American Civil Liberties Union. The letter advised the House that the Clerk had, pursuant to 2 USC § 118, requested the U.S. Attorney for the District of Columbia to represent him in the action. 118 CONG. Rec. 34040, 92d Cong. 2d Sess., Oct. 5, 1972.

§ 4.3 The Clerk having been served with a notice of taking of deposition in a civil action in which he had been named as a defendant in his official capacity, informed the Speaker who laid the matter before the House. 119 CONG. REC. 8485, 93d Cong. Ist Sess., Mar. 19, 1973 (H. Res. 313, authorizing the Clerk to respond to a notice of the taking of a deposition in the case of Common Cause v W. Pat Jennings, et al.].

$ 4.4 The Clerk having received a civil subpena duces tecum to appear before a Federal District Court, informed the Speaker who laid the matter before the House. The House then adopted a resolution authorizing the Clerk to appear but not take papers. 113 Cong. Rec. 3286, 90th Cong. 1st Sess., Feb. 13, 1967.

§ 4.5 The Clerk having been served with a subpena duces tecum and a notice of the taking of a deposition issued by a Federal court in a civil action, informed the Speaker who laid the matter before the House. 119 CONG. Rec. 37136, 37137, 93d Cong. 1st Sess., Nov. 15, 1973 [H. Res. 705, authorizing the Clerk to respond to a subpena duces tecum in a civil action brought by Ralph Nader, seeking information filed with the Clerk pursuant to the Corrupt Practices Act by certain election campaign committees prior to the 1972 Presidential election). 85.-Criminal Actions

$ 5.1 The Clerk, having received a subpena duces tecum from a Federal District Court in a criminal action, informs the Speaker who lays the matter before the House. 106 CONG. REC. 4407, 86th Cong. Žd Sess., Mar. 3, 1960; 107 Cong. Rec. 5850, 87th Cong. Ist Sess., Apr. 13, 1961; 117 CONG. Rec. 31575, 92d Cong. 1st Sess., Sept. 13, 1971. Note: The Federal grand jury was investigating alleged "kickbacks" paid by certain employees of Representative Collins (Tex.) as a condition of employment. See also 117 CONG. REC. 47667, 92d Cong. 1st Sess., Dec. 17, 1971 [H. Res. 755, authorizing the Clerk to respond to subpena duces tecum issued in the case of United States v John Dowdy, et al.); 118 Cong. Rec. 6326, 92d Cong. 2d Sess., Mar. 1, 1972 (H. Res. 854, authorizing the Clerk to respond to subpena duces tecum in the case of U.S. v Boyle).

$ 5.2 The Clerk, having received a summons to appear and testify before a District of Columbia court in a criminal case, informed the

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