	Constitutional Background

The Constitution provides that "for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place." Commonly referred to as the Speech or Debate Clause, this language affords Members of Congress immunity from certain civil and criminal suits relating to their legislative acts. What Actions Are Protected by the Clause? The Clause is interpreted as extending its protection to aides because the Gravel Court recognized 
that it is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause—to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary will inevitably be diminished and frustrated. Recent Cases

		Employment and Personnel Actions

For some time now, there has been an open question as to whether the Speech or Debate Clause protects a Member from liability in civil actions arising from office personnel disputes. In light of the passage of the CAA and these previous cases, both the Tenth Circuit Court of Appeals and the D.C. Circuit's "determination that jurisdiction attaches despite a claim of Speech or Debate Clause immunity is best read as a ruling on the scope of the Act, not its constitutionality." Executive Branch Criminal Investigations of Members

In recent years, both the D.C. Circuit and the Ninth Circuit have issued opinions addressing the application of the Speech or Debate Clause privilege to executive branch criminal investigations of Members. On this last point, the two circuits appear to split. Searches and Seizures of Congressional Offices: United States v. Rayburn House Office Building

In March 2005, the FBI began an investigation of Representative William J. Jefferson to determine whether he and other persons had engaged in bribery and/or wire fraud. After having his request for a stay pending appeal denied by the district court, Representative Jefferson filed notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit, seeking a stay of the lower court's order and any DOJ review of the seized documents. It concluded that the "compelled disclosure of privileged material to the Executive during execution of the search warrant ... violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause." The court carefully distinguished between the lawfulness of searching a congressional office pursuant to a search warrant—which the court held was clearly permissible—and the lawfulness of the way the search was executed considering the Member's potential Speech or Debate Clause protection. Representative Jefferson's specific privilege claims, based on his review of the documents pursuant to the court of appeals' remand order, were evaluated by the district court. United States v. Renzi

In 2009, Former Representative Richard Renzi was indicted on 48 criminal counts including extortion, money laundering, wire fraud, insurance fraud, and conspiracy related to alleged quid pro quo deals he orchestrated while representing Arizona's first district in the House of Representatives. During the course of the district court proceedings, Representative Renzi argued that the Speech or Debate Clause entitled him to (1) absolute immunity from prosecution because his negotiations with RCC and Aries were "legislative acts"; (2) dismissal of his indictment because privileged evidence was presented to the grand jury; and (3) a hearing to determine if the government used evidence protected by the Clause to obtain non-protected evidence. This part of the decision puts the Ninth Circuit at odds with the D.C. However, when the underlying action is not covered by the Clause, such as the investigations of alleged extortion and fraud in this case and Rayburn , other legitimate interests, like the ability of the executive branch to prosecute non-protected activities, outweigh concerns about legislative distraction.
Members of Congress have immunity for their legislative acts under Article I, Section 6, clause 1, of the Constitution, which provides in part that "for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place." Even if their actions are within the scope of the Speech or Debate Clause or some other legal immunity, Members of Congress remain accountable to the house of Congress in which they serve and to the electorate. In cases in which the Clause applies, the immunity is absolute and cannot be defeated by an allegation of an improper purpose or motivation. When applicable, the Clause provides both immunity from liability (in civil and criminal proceedings) and a complimentary evidentiary privilege.
Recently, two separate and previously unresolved issues arose with respect to the scope and application of the Speech or Debate Clause. The first case concerned claims of employment discrimination brought against Members' offices pursuant to the Congressional Accountability Act of 1995. Both the Tenth Circuit Court of Appeals and the D.C. Circuit ruled that the Speech or Debate Clause does not automatically prevent such suits from proceeding. Additionally, an appeal to the Supreme Court was rejected because the Court ruled that it lacked a jurisdictional basis to decide the case. These decisions, however, appear to leave unanswered significant questions about the use and introduction of evidence related to "legislative acts," which are protected by the Speech or Debate Clause. Such questions could ultimately frustrate the ability of potential plaintiffs to pursue their claims successfully.
In August 2007, the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its opinion in a case arising from the execution of a search warrant on the Rayburn House Office of Representative William J. Jefferson. The search was conducted as part of the FBI's investigation of Representative Jefferson to determine whether he was involved in criminal activity, including bribery and other felonies. Such an action by the executive branch appears to be unprecedented. It raised significant constitutional questions about potential intimidation of the legislative branch and threats to its independence, which the Clause is designed to protect. Although Representative Jefferson lost his initial legal challenge, the appeals court subsequently held that the search violated the Speech or Debate Clause. The court ordered the district court to provide Representative Jefferson with copies of the seized materials and a chance to assert his privilege claims ex parte and in camera. Moreover, the appeals court ordered that the Department of Justice (DOJ) continue to refrain from reviewing any of the seized materials until the privilege claims were evaluated by the lower court.
In 2011, the Ninth Circuit Court of Appeals also weighed in on how to apply the Clause to executive branch criminal investigations of Members. In that case, Representative Richard Renzi was accused of agreeing to support legislation in exchange for a private land purchase agreement benefitting one of his creditors. He was indicted on numerous criminal counts, including extortion and fraud, which he challenged on Speech or Debate Clause grounds. The appeals court determined that his challenged actions were not covered by the Clause. Additionally, the Ninth Circuit appeared to split with the D.C. Circuit analysis in Representative Jefferson's case on whether the Clause prevents the executive branch from ever viewing protected evidence.
This report examines the constitutional background of the Speech or Debate Clause and these recent developments in jurisprudence. It will be updated as events warrant.