House a communication from the Clerk transmitting a subpena duces tecum from a federal grand jury of the U.S. District Court for the District of Columbia requesting all records within his possession of telephone calls from or charged to the congressional phone numbers of a Representative, and an order of that court finding the subpenaed documents relevant and material to the grand jury investigation. 124 CONG. REC. 5498, 95th Cong. 2d Sess., Mar. 3, 1978.

Under this procedure, in the 95th Congress, the Speaker laid before the House a communication from the Sergeant at Arms transmitting two subpenas duces tecum from a federal grand jury for House records within his possession (bank records of two Members), and court orders finding the subpenaed materials relevant and material to the grand jury investigations. 124 CONG. REC. 8460, 95th Cong. 2d Sess., Apr. 3, 1978. See also 124 CONG. REC. 8461, 95th Cong. 2d Sess., Apr. 3, 1978, for a similar communication relating to a subpena served on the Clerk.

§ 10.33 At the outset of the 96th Congress, the House adopted a resolution identical to House Resolution 10 (of the 95th Congress). 125 CONG. REC. p. 96th Cong. 1st Sess., Jan. 15, 1979 [H. Res. 10, authorizing responses to subpenas in the 96th Congress]. Pursuant to this resolution, the Speaker laid before the House a communication from the Chairman of the Committee on Appropriations transmitting a subpena duces tecum to an employee of the committee to testify in a federal criminal action against a former Member, and to bring with him personal notes regarding trips made with the former Member on official committee business, where executive session information was not involved. 125 CONG. REC. p. Cong. 1st Sess., Mar. 12, 1979. The same procedure was followed when the Sergeant at Arms received a subpena duces tecum from a federal district court in a criminal case for House documents (bank records) within his possession and control. 125 CONG. REC. p. 96th Cong. 1st Sess., May 30, 1979.

96th

§ 10.34 House Resolution 10, 96th Congress, which granted per mission to any officer of the House to deliver copies of House documents requested by the courts upon a court finding of materiality and relevancy, did not apply to executive session material, which can only be released by a separate resolution passed by the House. Accordingly, in one instance, the House adopted a resolution, of fered by the Chairman of the Committee on Standards of Official Conduct as a question of the privileges of the House, granting permission for the staff director of that committee to produce a certified copy of testimony taken in executive session to a federal court pursuant to a subpena duces tecum, upon a finding by the court that the testimony was relevant and material. 125 CONG. REC. p. ....., 96th Cong. 1st Sess., June 4, 1979 [H. Res. 296].

§ 10.35 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 therewith. The resolution 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. The

resolution requires that when a Member, officer, or employee of the House receives a subpena, he must notify the Speaker thereof promptly; and if a judicial determination as to the propriety of the issuance of the subpena is to be sought, the Speaker must be notified in advance (see § 2.1, supra). House Resolution 722 specifies that House Resolution 10 is of no force or effect with respect to subpenas served after the date of the adoption of House Resolution 722. 126 CONG. REC. p. ......, 96th Cong. 2d Sess., Sept. 17, 1980.

§ 10.36 By unanimous consent, and prior to the expiration of the time specified by the three-day availability rule, the House considered a privileged resolution reported from the Committee on House Administration authorizing the chairman of a subcommittee to intervene in a pending civil action on behalf of the subcommittee to obtain information in the possession of a federal agency, and authorizing the chairman to retain counsel to determine his rate of compensation from the contingent fund. Subsequently the House adopted the resolution with an amendment recommended by the Committee on House Administration (1) authorizing the subcommittee chairman to intervene on behalf of the full committee, and (2) authorizing the full committee chairman to retain counsel with approval of the Speaker and setting a limit on compensation from the contingent fund. 121 CONG. REC. 41707, 41708, 94th Cong. 1st Sess., Dec. 18, 1975 [H. Res. 899, authorizing the Committee on Interstate and Foreign Commerce to intervene in Ashland Oil Corp. v Federal Trade Commission]. Note: Since the resolution provided for an expenditure from the contingent fund, it was a privileged resolution under Rule XI clause 4(a). However, it ws still subject to the three-day layover requirement of Rule XI clause 2(1)(6). The Journal correctly indicates that the resolution was called up by unani

mous consent.

§ 11. Effect of Adjournment

$11.1 The House may by resolution authorize court appearances in response to subpenas served upon Members, officers or employees of the House during recesses and adjournments of a particular Congress. 113 CONG. REC. 35, 90th Cong. 1st Sess., Jan. 10, 1967; 115 CONG. REC. 37, p. 91st Cong. 1st Sess., Jan. 3, 1969 [H. Res. 15]; 117 CONG. REC. 16, 92d Cong. 1st Sess., Jan. 21, 1971 [H. Res. 9]; 119 CONG. REC. 30, 31, 93d Cong. 1st Sess., Jan. 3, 1973 [H. Res. 12].

§11.2 Under the terms of a resolution adopted by the House at the commencement of a Congress, no Member, officer or employee of the House may release minutes or transcripts of committee executive sessions pursuant to court order during an adjournment of the House to a day certain or sine die. 116 CONG. REC. 37652, 91st Cong. 2d Sess., Nov. 17, 1970; 117 CONG. REC. 2741, 92d Cong. 1st Sess., Feb. 17, 1971.

§ 11.3 The Clerk, having received subpenas duces tecum during an adjournment to a day certain to appear before a General Courts Martial and to produce certain executive session testimony taken by a subcommittee of the House Committee on Armed Services, informed the Speaker who laid the matter before the House when it reconvened. 116 CONG. REC. 37652, 91st Cong. 2d Sess., Nov. 17, 1970; 117 CONG. REC. 2741, 92d Cong. 1st Sess., Feb. 17. 1971. Note: The Clerk was advised: (1) that the Committee on Armed Services

was the proper custodian of such testimony and that an employee of that committee should have been the recipient of the subpenas; and (2) that the committee could meet (even during an adjournment period) and pursuant to clause 28(0) of Rule XI, order the testimony to be made public. Following the expiration of the 91st Congress, however, the Clerk, under Rule XXXVI, technically became the custodian of "all evidence taken by such committee under the order of the House during the said Congress and not reported to the House." In fact, however, the Committee on Armed Services retained custody of the requested executive session testimony for continued study. The committee in the 92d Congress, absent an order of the House, could not make executive-session testimony taken in a prior Congress public on its own initiative.

§ 11.4 The Clerk, having received during a sine die adjournment a subpena duces tecum in a federal criminal action naming a Member as a defendant, notified the Speaker who laid the matter before the House when it reconvened. 120 CONG. REC. 104, 93d Cong. 2d Sess., Jan. 21, 1974 [U.S. v Bertram L. Podell et al.].

§ 11.5 An employee of the Committee on Armed Services having been served with a subpena duces tecum requesting the production in a federal criminal action of executive session material of that committee during an adjournment period, the chairman informed the Speaker who laid the matter before the House when it reconvened. 120 CONG. REC. 30643, 30644, 93d Cong. 2d Sess., Sept. 11, 1974 [U.S. v John N. Mitchell et al.].

§ 11.6 The Speaker laid before the house a communication from the chairman of a committee transmitting notices of the taking of depositions served upon employees and a former employee of that committee to be taken during a forthcoming period of adjournment to a day certain. 120 CONG. REC. 30617, 36018, 93d Cong. 2d Sess., Oct. 17, 1974 [Koniag, Inc., et al. v Rogers C.B. Morton]. Note: The House took no action in response to this request for the taking of depositions.

$11.7 The Speaker laid before the House a communication from the Chairman of the Committee on Merchant Marine and Fisheries transmitting notices of the taking of depositions in a federal civil action that had been served upon employees and a former employee of that committee during a period of adjournment to a day certain. 120 CONG. REC. 36278, 93d Cong. 2d Sess., Nov. 18, 1974 [Koniag, Inc. et al. v Rogers C.B. Morton, and Salamatof Village Association et al. v Rogers C.B. Morton].

§ 12. Providing for Legal Counsel

§ 12.1 By resolution the House authorized the Speaker to appoint and fix the compensation of special counsel to represent the House and those Members named as defendants in a suit brought by former Representative Adam C. Powell. The Speaker stated that the adoption of the resolution permitting him to appoint counsel would not in any manner waive the privileges of the House, would not give the court any jurisdiction it did not already have, and would not give the defendants in the action the right to appear in court without the further consent of the House. 113 CONG. REC. 6035-42, 6048, 90th Cong. 1st Sess., Mar. 9, 1967.

§12.2 The House, by simple resolution, continued the authority granted the Speaker in the 90th Congress to retain counsel to represent the Members and the House in the suit brought against them by Adam Clayton Powell as a result of his exclusion from the 90th Congress. 115 CONG. REC. 3359, 91st Cong. 1st Sess., Feb. 17, 1969 [H. Res. 243, continuing the provisions of H. Res. 376, 90th Congress, in the 91st Congress].

§ 12.3 The Speaker laid before the House a communication from the Clerk, informing the House of the receipt of a summons and complaint, naming the House of Representatives as a defendant in a civil action, and advising the House that he had, pursuant to 2 USC § 118, requested the U.S. Attorney for the Southern District of Indiana, to represent the House in the action. 118 CONG. REC. 29136, 92d Cong. 2d Sess., Aug. 18, 1972.

§ 12.4 The Speaker, having been served with a summons and complaint naming him in his official capacity as a defendant in a civil action in a federal district court, laid the summons before the House and advised that he had, pursuant to 2 USC § 118, requested the U.S. Attorney to represent him in the action. 119 CONG. REC. 3207, 93d Cong. 1st Sess., Feb. 5, 1973.

§ 12.5 The Speaker, having been served with a summons and complaint naming him in his official capacity as a defendant (with other Members) in a civil action pending in a federal court, informed the House that he had, pursuant to 2 USC § 118, requested the U.S. Attorney to represent him in the action. 119 CONG. REC. 3207, 93d Cong. 1st Sess., Dec. 10, 1973. Note: While the Speaker may not, under 2 USC § 118, formally request the U.S. Attorney to represent other Members who have been named as defendants and who are not "officers" of the House, it was suggested to other Members so named that they informally request the U.S. Attorney to represent their interests as well.

§ 12.6 The Speaker pro tempore announced to the House that the Clerk had, pursuant to 2 USC § 118, requested the U.S. Attorney to represent the Speaker as a defendant in a federal civil action. 117 CONG. REC. 35769, 92d Cong. 1st Sess., Oct. 12, 1971. Note: The Clerk was advised to request the U.S. Attorney for the Northern District of Florida to represent the Speaker (to file an answer within 60 days), although technically the Speaker, and not the Clerk, had been named in his representative capacity.

§ 12.7 The Speaker and the Chairman of the Rules Committee having been served with summons and complaint in a civil action pending in federal court, the Speaker laid the matter before the House and advised the House that he had, pursuant to 2 USC $118, requested the U.S. Attorney for the Eastern District of Louisiana to represent them in the action. 118 CONG. REC. 17398, 92d Cong. 2d Sess., May 16, 1972.

§ 12.8 The Speaker laid before the House a communication from the Clerk advising that the Clerk and the Sergeant at Arms had been served with a supplemental petition adding them as defendants in a civil action already pending in federal court against the Speaker, the Chairman of the Committee on Rules, and the House of Representatives, and advising that the Clerk and Sergeant at Arms had, pursuant to 2 USC § 118, requested the U.S. Attorney

for the Eastern District of Louisiana to represent them in the action. 118 CONG. REC. 34583, 92d Cong. 2d Sess., Oct. 10, 1972.

§ 12.9 The Speaker laid before the House a communication from the Clerk, informing the House of the receipt of a summons and complaint naming the Clerk as a defendant in a civil action in a federal district court, and advising that he had, pursuant to 2 USC § 118, requested the U.S. Attorney to represent him in the action. 118 CONG. REC. 5024, 92d Cong. 2d Sess., Feb. 22, 1972; 118 CONG. REC. 5492, 92d Cong. 2d Sess., Feb. 24, 1972; 119 CONG. REC. 9452, 9453, 93d Cong. 1st Sess., Mar. 26, 1973.

§ 12.10 The Speaker laid before the House a communication from the Clerk, informing the House of receipt of replies from the Department of Justice and the U.S. Attorney for the District of Columbia in which they agreed (pursuant to 2 USC § 118) to furnish representation for the Clerk in a civil action in which the Clerk had been named a defendant, unless a "divergence of interest" developed between the positions of the Clerk and the Justice Department. 118 CONG. REC. 8470, 92d Cong. 2d Sess., Mar. 15, 1972. Note: On May 3, 1972, the Clerk received a letter from the Attorney General stating that a "divergence of interest" had developed between the positions of the Clerk and the Justice Department and requesting the Clerk to obtain other counsel. The letter was not communicated to the Speaker or laid before the House. Pursuant to authority granted the Clerk in H. Res. 955, adopted May 3, 1972, the Clerk obtained other counsel. See 118 CONG. REC. 15627, 92d Cong. 2d Sess., May 3, 1972, where a resolution authorizing the Clerk to appoint and fix compensation (to be paid from the contingent fund) of counsel to represent him in any suit brought against him as supervisory officer under the Corrupt Practices Act of 1925 or the Federal Election Campaign Act of 1971, was offered from the floor as privileged. The privileged status of the resolution derived from the question of privileges of the House arising from service upon the Clerk in his official capacity of summons and complaints in two cases pending in a federal district court.

§ 12.11 By unanimous consent, the House considered and agreed to a resolution authorizing the Clerk to appoint legal counsel in suits brought against him under the Federal Election Campaign Act and providing payment of expenses out of the contingent fund upon approval by the Committee on House Administration. 119 CONG. REC. 379, 93d Cong. 1st Sess., Jan. 6, 1973 [H. Res. 92]. Note: An attempt was made to call up the resolution as privileged, but since the Committee on House Administration had not been elected and the resolution had not been reported by that committee, the resolution was not privileged.

§ 12.12 The Speaker laid before the House a letter and communication from the Sergeant at Arms informing the House of the receipt of a summons and complaint in a civil suit and that, pursuant to 2 USC § 118, he had requested the U.S. Attorney for the District of Columbia to represent him. 109 CONG. REC. 10359, 88th Cong. 1st Sess., June 6, 1963. Note: The suit alleged the withholding of the salary of a Member for periods of alleged absence from the House. § 12.13 The Speaker laid before the House a letter and communication from the Acting Architect of the Capitol, informing the House of the receipt of a summons and complaint, naming the