[author: Thomas J. Spulak]

Ted Hester, Eleanor Hill and Dan Donovan of our group are well aware of Congress' penchant for issuing subpoenas for records and the testimony of corporate officials. They often engage in extensive negotiations with congressional investigators over the scope and nature of these congressional demands.

Perhaps many are not aware of the fact that Congress is often the recipient of subpoenas. Often these are of little consequence, such as those issued by unhappy constituents or requests for appearances as character witnesses. These are often dismissed with little attention and effort. But occasionally, a subpoena issued to Congress results in significant attention and consideration.

Such was the case when I first met Judge Bell. I was House Counsel and he and Ted Hester were representing Brown & Williamson and were seeking the return of company documents taken by a paralegal in a Kentucky law firm that had found their way literally to the door step of a member of Congress who was close to the anti-smoking community. Brown & Williamson wanted to know if Congress did in fact have its documents, what they were, and ultimately their return. Congress ignored the subpoena and Brown & Williamson sued for production. Judge Harold Greene, famous for overseeing the breakup of AT&T, ruled that Congress did not have to comply, based on its constitutional privileges, including the Speech or Debate Clause.

Today, that clause is again in the news. A House committee recently received a subpoena from the Securities & Exchange Commission for information regarding alleged insider trading. The allegation involved the passing of information from a committee staff member to a lobbyist representing an investment firm that subsequently traded on the information. House lawyers have gone to court objecting to enforcement of the subpoena based on the Speech or Debate clause. This provision says that Members and staff cannot be questioned about activities that are part of the core legislative process, which includes debates on the Floor and committee hearings. It does not include political campaign activity and constituent services.

The Framers included this provision because they believed that it was essential to our separate but equal tripartite government. If Congress could be questioned or harassed by an unfriendly Executive, including its Department of Justice, for legislative action antagonistic to perhaps a President of another party, that balance of power could be greatly shifted.

The Clause shields legislative records and debates from executive intrusion to preserve Congress' independence from the executive branch. It does not shield Congress from prosecutions for corrupt activity. For example, numerous Members have been successfully prosecuted for ill-gotten gain through bribery and conflicts of interest. Recently, Representative William Jefferson was convicted for corruption and sent to jail even after successfully invoking the Clause. Prosecutors were able to obtain a conviction based on non-privileged evidence. The clause only prohibits questioning about specific legislative activities connected to the bribe--not the bribe itself. Judges ultimately determine what legislative activity is.