[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 11. Questions of Privilege]
[C. Basis of Questions of Privilege of the House]
[§ 17. Service of Process on Committee Chairmen and Employees]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1637-1643]
CHAPTER 11
Questions of Privilege
C. BASIS OF QUESTIONS OF PRIVILEGE OF THE HOUSE
Sec. 17. Service of Process on Committee Chairmen and Employees
Service of Summons and Complaint on Committee Chairman
Sec. 17.1 The receipt of a summons and complaint naming the chairman of
a House committee as a defendant in a civil action brought in a
federal court raises a question of the privilege of the House, and
the matter is laid before the House for its consideration.
On May 16, 1972,(6) the Speaker (17) laid
before the House as a matter involving a question of the privilege of
the House a communication from the Chairman of the Committee on Rules
advising that he had been served with a summons and complaint as a
defendant in a civil action (8) brought in the U.S. District
Court for the Eastern District of Louisiana. At the same time, the
Speaker, who stated that he and the Clerk of the House had received
summons and complaint in the same action, inserted copies of the
following letters in the Record:
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6. 118 Cong. Rec. 17398, 92d Cong. 2d Sess.
7. Carl Albert (Okla.).
8. Civil Action File No. 72-1126 (Sec. H, U.S.D.C. E.D. La.).
May 16, 1972.
Hon. Richard G. Kleindienst,
Acting Attorney General, Department of
Justice, Washington, D.C.
Dear Mr. Kleindienst: On May 15, 1972, I received by certified
mail a Summons and complaint in Civil Action No. 72-1126 in the
United States District Court for the Eastern District of Louisiana.
A copy of the Summons and complaint is enclosed herewith.
[[Page 1638]]
Representative William M. Colmer, Chairman of the Committee on
Rules of the House of Representatives, and the Clerk of the House
of Representatives, Hon. W. Pat Jennings, have also received
Summons and complaint in the action.
In accordance with the provisions of 2 U.S.C. 118, I have sent
a copy of the Summons and complaint in this action to the U.S.
Attorney for the Eastern District of Louisiana requesting that he
take appropriate action under the supervision and direction of the
Acting Attorney General. I am also sending you a copy of the letter
I forwarded this date to the U.S. Attorney.
Sincerely,
Carl Albert,
Speaker of the House
of Representatives.
May 16, 1972.
Hon. Gerald J. Gallinghouse,
U.S. Attorney for the Eastern District of Louisiana, New Orleans,
La.
Dear Mr. Gallinghouse: I am sending you a copy of a Summons and
complaint in Civil Action No. 72-1126 in the United States District
Court for the Eastern District of Louisiana, against me in my
official capacity as Speaker of the House of Representatives,
received by certified mail on May 15, 1972.
Representative William M. Colmer, Chairman of the Committee on
Rules of the House of Representatives, and the Clerk of the House
of Representatives, Hon. W. Pat Jennings, have also received by
certified mail copies of the Summons and complaint.
In accordance with the provisions of 2 U.S.C. 118, I
respectfully request that you take appropriate action, as deemed
necessary, under the supervision and direction of the Acting
Attorney General, in defense of this suit against the Speaker, the
Chairman of the Committee on Rules of the House of Representatives,
and the House of Representatives. I am also sending you a copy of
the letter that I forwarded this date to the Acting Attorney
General of the United States.
Sincerely,
Carl Albert,
Speaker of the House
of Representatives.
Subpenas Served on Committee Chairmen
Sec. 17.2 The chairman of a House committee, having received a subpena
duces tecum from a federal court, reported the facts to the speaker
who laid the matter before the House.
On Feb. 21, 1961,(9) the Chairman of the Committee on
Un-American Activities, Francis E. Walter, of Pennsylvania, rose to a
question of the privilege of the House and informed the House that he
had been subpenaed to appear and testify in connection with a case
(10) pending before the U.S. District Court for the Southern
District of New York. Following the presentation of the
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9. 107 Cong. Rec. 2481, 87th Cong. 1st Sess.
10. U.S. v Seeger, Criminal Case No. C 152-240, Cr. 800 (U.S.D.C. S.D.
N.Y.).
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[[Page 1639]]
subpena to the House, a resolution,(11) authorizing the
chairman to appear and testify, offered by Mr. John W. McCormack, of
Massachusetts, was agreed to.
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11. H. Res. 178.
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Sec. 17.3 When the chairman of a House committee receives a subpena
duces tecum from the Tax Court of the United States, a question of
the privilege of the House arises.
On Aug. 12, 1969,(12) the Chairman of the Committee on
Banking and Currency, Wright Patman, of Texas, rose to a question of
the privilege of the House and informed the House that he had been
served with a subpena duces tecum requesting the production of certain
documents before the Tax Court of the United States. The subpena was
sent to the desk, and the Speaker (13) instructed the Clerk
to read it to the House.
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12. 115 Cong. Rec. 23354, 91st Cong. 1st Sess.
13. John W. McCormack (Mass.).
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Parliamentarian's Note: Chairman Patman stated that the documents
called for in the subpena were not in his possession or control, and
the House took no action thereon.
Sec. 17.4 The chairman of a House committee, having been subpenaed to
appear and testify before a state court, rose to a question of the
privilege of the House.
On July 7, 1971,(14) the Chairman of the Committee on
Internal Security, Richard H. Ichord, of Missouri, rose to a question
of the privilege of the House and addressed the Chair:
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14. 117 Cong. Rec. 23813, 92d Cong. 1st Sess. On the same day a similar
subpena served on the Chairman of the Committee on Ways and
Means, Wilbur D. Mills (Ark.), by the same court in connection
with the same case was also presented to the House.
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Mr. Ichord: Mr. Speaker . . . I have been subpenaed to appear
before the Superior Court of the District of Columbia on the 7th
day of July 1971 at 2 p.m. in the case of United States v. Margaret
Butterfield (docket No. 27078-71) and to bring with me certain
papers under the control of the Committee on Internal Security.
Under the precedents of the House, I am unable to comply with
this subpena duces tecum without the consent of the House, the
privileges of the House being involved. I therefore submit the
matter for the consideration of this body.
I send the subpena duces tecum to the desk.
The subpena was sent to the desk, and the Speaker pro tempore
(15) instructed the Clerk to read it to the House.
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15. Hale Boggs (La.).
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[[Page 1640]]
Service of Subpenas on Committee Employees
Sec. 17.5 Where a House committee employee had been subpenaed by a
federal court, in a matter related to committee business, the
chairman of the committee advised the Speaker of this fact by
letter and the Speaker then laid the matter before the House for
its consideration.
On Feb. 21, l961,(16) the Speaker (17) laid
before the House as a matter giving rise to a question of the privilege
of the House a communication from the Chairman of the Committee on Un-
American Activities:
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16. 107 Cong. Rec. 2482, 87th Cong. 1st Sess.
17. Sam Rayburn (Tex.).
February 20, 1961.
Hon. Sam Rayburn,
Speaker, House of Representatives,
Washington, D.C.
Dear Mr. Speaker: Mr. Frank S. Tavenner, Jr., an employee of
the House, while serving at my direction as counsel for the
Committee on Un-American Activities, received a subpena duces tecum
directing him to appear as a witness before the U.S. District Court
for the District of Columbia, in the case of the United States of
America v. Martin Popper (No. 1053-59). The return date of the
subpena has been extended to April 15, 1961.
The portion of the subpena duces tecum requiring the production
of documents was, on the 3d day of February 1961, quashed by Mr.
Justice Edward M. Curran.
The subpena in question is transmitted herewith and the matter
is presented for such action as the House, in its wisdom, may see
fit to take.
Sincerely yours,
Francis E. Walter,
Chairman.
After the Clerk's reading of the subpena, the House agreed to a
resolution (18) offered by Mr. John W. McCormack, of
Massachusetts, authorizing the committee employee to appear in response
to the subpena duces tecum as modified.
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18. H. Res. 181.
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Sec. 17.6 When an employee of a House committee had been served with a
subpena from a state court, in a matter related to committee
business, the chairman of the committee informed the Speaker who
laid the matter before the House.
On May 21, 1962,(19) the Speaker pro
tempore,(20) rising to a question of the privilege of the
House, laid before the House the
[[Page 1641]]
following communication from the Chairman of the Committee on Un-
American Activities:
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19. 108 Cong. Rec. 8823, 8824, 87th Cong. 2d Sess. For a further
illustration see 105 Cong. Rec. 5858, 86th Cong. 1st Sess.,
Apr. 14, 1959.
20. Carl Albert (Okla.).
May 21, 1962.
Hon. John McCormack,
Speaker, House of Representatives,
Washington, D.C.
Dear Mr. Speaker: Mr. Donald Appell, an employee of the House,
while serving at my direction as an investigator on the Committee
on Un-American Activities, received a subpena directing him to
appear as a witness in the Supreme Court of the State of New York,
New York County, on the 23d day of May 1962, in the case of John
Henry Faulk, plaintiff v. Aware, Inc., Laurence A. Johnson and
Vincent Hartnett, defendants.
The subpena in question is transmitted herewith and the matter
is presented for such action as the House, in its wisdom, may see
fit to take.
Sincerely yours,
Francis E. Walter,
Chairman.
After a reading of the subpena by the Clerk, a resolution
(1) was offered by Mr. Francis E. Walter, of Pennsylvania,
authorizing the employee's appearance to testify to any matter
determined by the court to be material and relevant to the
identification of any publicly disclosed document, but prohibiting his
testimony as to any matter that may be based on knowledge acquired by
him in his official capacity as committee investigator. The resolution
was agreed to.
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1. H. Res. 650.
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Service of Grand Jury Subpena on Committee Chairman
Sec. 17.7 The chairman of a House committee, having received a subpena
duces tecum from a federal grand jury, rose to a question of the
privilege of the House.
On Aug. 15, 1972,(2) the Chair recognized Mr. Charles M.
Price, of Illinois:
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2. 118 Cong. Rec. 28286, 92d Cong. 2d Sess.
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Mr. Price of Illinois: Mr. Speaker, I rise to a question of the
privileges of the House.
The Speaker:(3) The gentleman will state the
question of privilege of the House.
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3. Carl Albert (Okla.).
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Mr. Price of Illinois: Mr. Speaker, in my capacity as chairman
of the Committee on Standards of Official Conduct, I have been
subpenaed to appear before the grand jury of the U.S. District
Court for the Western District of Pennsylvania, on August 22, 1972,
and to bring with me certain records of the Committee on Standards
of Official Conduct. Under the rules and precedents of the House, I
am unable to comply with the subpena duces tecum without the
permission of the House [the privileges of the House] being
involved.
I therefore submit the matter for the consideration of the
House.
[[Page 1642]]
The Speaker: The Clerk will read the subpena.
After the reading of the subpena, a privileged resolution
(4) was offered by Mr. Hale Boggs, of Louisiana, authorizing
the chairman to appear in response to the subpena but permitting the
production of certified copies of only those subpenaed House papers and
documents subsequently determined by the court to be material and
relevant.
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4. H. Res. 1092.
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Service of Grand Jury Subpenas on Committee Employees
Sec. 17.8 A House committee employee, having received a subpena duces
tecum from a federal grand jury, informed the Speaker who laid the
matter before the House.
On Jan. 16, 1968,(5) the Speaker (6) laid
before the House as a matter involving the privilege of the House a
communication from the clerk of the Committee on House Administration
advising that he was in receipt of a subpena duces tecum commanding his
appearance for the purpose of testifying and producing certain original
records before the grand jury of the U.S. District Court for the
District of Columbia. Following the presentation of the communication
and the reading of the subpena to the House, a privileged resolution
(7) was offered by Mr. Carl Albert, of Oklahoma, authorizing
the committee clerk to appear and produce the requested original papers
and documents in response to the subpena. The resolution was agreed to.
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5. 114 Cong. Rec. 81, 90th Cong. 2d Sess. For further examples see 113
Cong. Rec. 29374-76, 90th Cong. 1st Sess., Oct. 19, 1967; and
113 Cong. Rec. 17562, 90th Cong. 1st Sess., June 27, 1967.
6. John W. McCormack (Mass.).
7. H. Res. 1023.
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Service of Discovery Orders
Sec. 17.9 Where a federal district court, pursuant to the Federal Rules
of Criminal Procedure, issued a discovery order for the inspection
and copying of certain original papers and documents in the
possession and under the control of a House committee, a question
of the privilege of the House arose.
On July 1, 1969,(8) the Chairman of the Committee on
Internal Security, Richard H. Ichord, of Missouri, rose to a question
of the privilege of the House and offered
[[Page 1643]]
a resolution (9) for the consideration of the House. The
resolution authorized him to make available to the U.S. attorney, in
response to a discovery order issued by a federal district court
pursuant to Rule 16 of the Federal Rules of Criminal Procedure, for the
purpose of inspection and copying by parties in a pending criminal
action,(10) certain enumerated committee papers and
documents. The resolution was agreed to.
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8. 115 Cong. Rec. 17948, 91St Cong. 1st Sess.
9. H. Res. 459.
10. U.S. v Stamler, Hall, and Cohen, Criminal Action No. 67 CR 393, 67
CR 394, 67 CR 395 (U.S.D.C. No. 1). Ill ).
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Sec. 17.10 Where certain employees and former employees of a House
committee were named parties defendant in a federal civil action
and had received discovery orders and interrogatories, a question
of the privilege of the House was invoked.
On Mar. 2, 1971,(11) Mr. Richard H. Ichord, of Missouri,
rising to a question of the privilege of the House, offered a
resolution (12) for the consideration of the House. The
resolution authorized specified employees and former employees of the
Committee on Internal Security to testify and produce certain documents
in response to discovery orders and written and oral interrogatories
served on them as parties defendant in a civil action (13)
pending before the U.S. District Court for the Northern District of
Illinois. The previous question was immediately moved on the
resolution. Mr. Abner Mikva, of Illinois, objected to the vote because
a quorum was not present. On a call of the roll pursuant to Rule XV,
the resolution was agreed to.
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11. 117 Cong. Rec. 4584-93, 92D Cong. 1st Sess.
12. H. Res. 264.
13. Civil Action File No. 65 C 800, 65 C 2050 (U.S.D.C. No. D. Ill.).
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