Speech or Debate Clause
Encyclopedia
The Speech or Debate Clause is a clause in the United States Constitution
(Article I
, Section 6, Clause 1) . The clause states that members of both Houses of Congress
The intended purpose is to prevent a President
or other officials of the executive branch
from having members arrested on a pretext to prevent them from voting a certain way or otherwise taking actions with which the President might disagree.
A similar clause in many state constitutions protects members of state legislatures in the United States. Legislators in non-U.S. jurisdictions may be protected by a similar doctrine of parliamentary immunity
.
Mike Gravel
(Alaska
) received a copy of the Pentagon Papers
from Ben Bagdikian
, an editor at The Washington Post
. Over the next several days, Gravel (who was dyslexic
) was assisted by his congressional office staff in reading and analyzing the report. Worried his home might be raided by the Federal Bureau of Investigation
, Gravel smuggled the report, which filled two large suitcases, into his Senate office, which was then guarded by disabled Vietnam veterans.
On the evening of , Gravel attempted to read the Pentagon Papers into the Congressional Record
. A lack of a quorum
, however, prevented the Senate from convening. As chair of the Senate Subcommittee on Public Buildings and Grounds, Gravel convened a meeting of the subcommittee and spent an hour reading part of the Pentagon Papers into the record. Prevented by his dyslexia from continuing, Gravel had the remainder of the Pentagon Papers entered into the record.
Gravel arranged to have the Pentagon Papers published by a private publisher, Beacon Press
, a non-profit
book publisher owned by the Unitarian Universalist Association
.
A federal grand jury
was empaneled to investigate possible violations of federal law in the release of the report. Leonard Rodberg, a Gravel aide, was subpoena
ed to testify about his role in obtaining and arranging for publication of the Pentagon Papers. Senator Gravel intervened and asked a court to quash the subpoena, contending that forcing Rodberg to testify would violate the Speech or Debate Clause. A federal district court
refused to grant the motion to quash but did agree to proscribe certain questions. The trial court also held that publication of the Pentagon Papers by a private press was not protected by the Speech or Debate Clause. The Court of Appeals
affirmed the district court's ruling, although it modified the categories of barred questions. The United States appealed the barring of questions, and Senator Gravel appealed the ruling regarding publication. The United States Supreme Court granted certiorari
.
In Gravel v. United States
, 408 U.S. 606
(1972), the Supreme Court held (5-4) that the privileges of the Speech or Debate Clause extend to Congressional aides. Rejecting the reasoning of the Court of Appeals, the Supreme Court held, "...the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself," the Court declared.
The Court refused to protect congressional aides either from prosecution for criminal conduct or from testifying at trials or grand jury proceedings involving third-party crimes. The Supreme Court also vacated the lower court's order permitting some questions and barring others, concluding that if the testimony is privileged then the privilege is absolute.
The Supreme Court upheld the district court ruling regarding private publication. "[Private] publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence."
The Gravel case narrowed the protections offered by the Speech or Debate Clause.
(LA
), some members of Congress have criticized the FBI's search as an unconstitutional breach of this clause. Those who support the FBI's position contend that the clause did not apply to the search of Jefferson because he was alleged to have committed felonies of accepting bribes, obstructing a previous search, and storing in a freezer the money he accepted in bribery. Also, Jefferson was not arrested at the House, and the FBI investigation does not concern anything Jefferson said at Congress.
The U.S. Court of Appeals for the District of Columbia Circuit ruled that the search was unconstitutional. The Supreme Court declined to review the D.C. Circuit Court's decision. The search of the accused Jefferson’s House office was found to be unconstitutional because of a “filter team’s” review of all legislative files in that office.
that killed 24 civilians, filed suit for libel and invasion of privacy. Wuterich claims that Congressman John Murtha
's comments at a news conference on , and in subsequent television interviews tarnished the Marine's reputation and constituted an invasion of privacy.
A federal judge ruled on , that Murtha must testify at the Haditha defamation case. Commentators have expressed concern that Murtha was acting as lawmaker and, therefore, protected by the Speech or Debate Clause. Neither Murtha, the Justice Department, nor the House's General Counsel ever filed an appeal.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
(Article I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
, Section 6, Clause 1) . The clause states that members of both Houses of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
The intended purpose is to prevent a President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
or other officials of the executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
from having members arrested on a pretext to prevent them from voting a certain way or otherwise taking actions with which the President might disagree.
A similar clause in many state constitutions protects members of state legislatures in the United States. Legislators in non-U.S. jurisdictions may be protected by a similar doctrine of parliamentary immunity
Parliamentary immunity
Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
.
Gravel case
On , SenatorUnited States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Mike Gravel
Mike Gravel
Maurice Robert "Mike" Gravel is a former Democratic United States Senator from Alaska, who served two terms from 1969 to 1981, and a former candidate in the 2008 presidential election....
(Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
) received a copy of the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
from Ben Bagdikian
Ben Bagdikian
Ben Haig Bagdikian is an American educator and journalist. Bagdikian has made journalism his profession since 1941. He is a significant American media critic and the dean emeritus of the University of California, Berkeley Graduate School of Journalism...
, an editor at The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
. Over the next several days, Gravel (who was dyslexic
Dyslexia
Dyslexia is a very broad term defining a learning disability that impairs a person's fluency or comprehension accuracy in being able to read, and which can manifest itself as a difficulty with phonological awareness, phonological decoding, orthographic coding, auditory short-term memory, or rapid...
) was assisted by his congressional office staff in reading and analyzing the report. Worried his home might be raided by the Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
, Gravel smuggled the report, which filled two large suitcases, into his Senate office, which was then guarded by disabled Vietnam veterans.
On the evening of , Gravel attempted to read the Pentagon Papers into the Congressional Record
Congressional Record
The Congressional Record is the official record of the proceedings and debates of the United States Congress. It is published by the United States Government Printing Office, and is issued daily when the United States Congress is in session. Indexes are issued approximately every two weeks...
. A lack of a quorum
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
, however, prevented the Senate from convening. As chair of the Senate Subcommittee on Public Buildings and Grounds, Gravel convened a meeting of the subcommittee and spent an hour reading part of the Pentagon Papers into the record. Prevented by his dyslexia from continuing, Gravel had the remainder of the Pentagon Papers entered into the record.
Gravel arranged to have the Pentagon Papers published by a private publisher, Beacon Press
Beacon Press
Beacon Press is an American non-profit book publisher. Founded in 1854 by the American Unitarian Association, it is currently a department of the Unitarian Universalist Association.Beacon Press is a member of the Association of American University Presses....
, a non-profit
Non-profit organization
Nonprofit organization is neither a legal nor technical definition but generally refers to an organization that uses surplus revenues to achieve its goals, rather than distributing them as profit or dividends...
book publisher owned by the Unitarian Universalist Association
Unitarian Universalist Association
Unitarian Universalist Association , in full the Unitarian Universalist Association of Congregations in North America, is a liberal religious association of Unitarian Universalist congregations formed by the consolidation in 1961 of the American Unitarian Association and the Universalist Church of...
.
A federal grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
was empaneled to investigate possible violations of federal law in the release of the report. Leonard Rodberg, a Gravel aide, was subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
ed to testify about his role in obtaining and arranging for publication of the Pentagon Papers. Senator Gravel intervened and asked a court to quash the subpoena, contending that forcing Rodberg to testify would violate the Speech or Debate Clause. A federal district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
refused to grant the motion to quash but did agree to proscribe certain questions. The trial court also held that publication of the Pentagon Papers by a private press was not protected by the Speech or Debate Clause. The Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
affirmed the district court's ruling, although it modified the categories of barred questions. The United States appealed the barring of questions, and Senator Gravel appealed the ruling regarding publication. The United States Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
.
In Gravel v. United States
Gravel v. United States
Gravel v. United States, 408 U.S. 606 , was a case regarding the protections offered by the Speech or Debate Clause of the United States Constitution...
, 408 U.S. 606
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1972), the Supreme Court held (5-4) that the privileges of the Speech or Debate Clause extend to Congressional aides. Rejecting the reasoning of the Court of Appeals, the Supreme Court held, "...the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself," the Court declared.
The Court refused to protect congressional aides either from prosecution for criminal conduct or from testifying at trials or grand jury proceedings involving third-party crimes. The Supreme Court also vacated the lower court's order permitting some questions and barring others, concluding that if the testimony is privileged then the privilege is absolute.
The Supreme Court upheld the district court ruling regarding private publication. "
The Gravel case narrowed the protections offered by the Speech or Debate Clause.
FBI raid
In May 2006, following an FBI raid on the Capitol Hill office of Rep. William J. JeffersonWilliam J. Jefferson
William Jennings "Bill" Jefferson is a former American politician, and a published author from the U.S. state of Louisiana. He served as a member of the U.S. House of Representatives for nine terms from 1991 to 2009 as a member of the Democratic Party. He represented , which includes much of the...
(LA
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
), some members of Congress have criticized the FBI's search as an unconstitutional breach of this clause. Those who support the FBI's position contend that the clause did not apply to the search of Jefferson because he was alleged to have committed felonies of accepting bribes, obstructing a previous search, and storing in a freezer the money he accepted in bribery. Also, Jefferson was not arrested at the House, and the FBI investigation does not concern anything Jefferson said at Congress.
The U.S. Court of Appeals for the District of Columbia Circuit ruled that the search was unconstitutional. The Supreme Court declined to review the D.C. Circuit Court's decision. The search of the accused Jefferson’s House office was found to be unconstitutional because of a “filter team’s” review of all legislative files in that office.
Indictment
On , Jefferson argued before the Fourth Circuit Court of Appeals that, as his legislative acts were part of the evidence used to indict, that they fell under the Clause and the indictment should be vacated. The Court of Appeals rejected this contention.John Murtha Haditha defamation case
On , Marine Corps Staff Sergeant Frank D. Wuterich, who led a squad of Marines into Haditha, IraqHaditha killings
The Haditha killings refers to the incident where 24 Iraqi men, women and children were killed by a group of United States Marines on November 19, 2005 in Haditha, a city in the western Iraqi province of Al Anbar. At least 15 of those killed were civilians...
that killed 24 civilians, filed suit for libel and invasion of privacy. Wuterich claims that Congressman John Murtha
John Murtha
John Patrick "Jack" Murtha, Jr. was an American politician from the U.S. state of Pennsylvania. Murtha, a Democrat, represented Pennsylvania's 12th congressional district in the United States House of Representatives from 1974 until his death in 2010....
's comments at a news conference on , and in subsequent television interviews tarnished the Marine's reputation and constituted an invasion of privacy.
A federal judge ruled on , that Murtha must testify at the Haditha defamation case. Commentators have expressed concern that Murtha was acting as lawmaker and, therefore, protected by the Speech or Debate Clause. Neither Murtha, the Justice Department, nor the House's General Counsel ever filed an appeal.
External links
- Article on Speech or Debate Clause from Answers.com, taken from the West's Encyclopedia of American Law