Persons Who Can Claim the Speech or Debate Privilege

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Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Although the text of the Speech or Debate Clause refers only to “Senators and Representatives,” and therefore clearly applies to actions by any Member of Congress,1 it is now well established that protections of the Clause apply equally to certain congressional staff.2 Initially, however, the Court seemed apprehensive about such an extension. For example, in early cases the Court held that while Members enjoyed immunity for their actions, the congressional staffers who were also named as defendants, and who were responsible for implementing the Member’s directives, did not.3 Indeed, in Dombrowski v. Eastland, the Court relied on language in Tenney v. Brandhove in reasoning that the protection of the Clause “'deserves greater respect’” when a legislator is sued “'than where an official acting on behalf of the legislature is sued.’” 4

However, the Court later shifted course. In Gravel, the Court held that the Clause protects an aide’s action when the Clause would have protected the same action if it were done by a Member.5 An aide, the Court reasoned, should be viewed as the “alter ego” of the Member he or she serves.6 The Gravel Court recognized that the Member and his or her aide must be “treated as one,” 7 noting:

[I]t 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.8

The opinion distinguished its earlier decisions on the ground that in those cases, the aides did not themselves engage in legislative acts.9 Whereas, in Gravel, and a number of subsequent cases, the Court was willing to extend the protections of the Clause so long as the act of the aide was itself a legislative act, and therefore would have been protected had it been performed by the Member.10

At issue in Gravel were the actions of a Member’s personal staff, but the Clause applies to others as well. Decisions of the Court have extended the protections of the Clause to committee staff, including those in the position of chief counsel, clerk, consultant, staff director, and investigator.11

However, it should be noted that any protections under the Clause that are enjoyed by congressional or legislative staff flow from the Member.12 They do not inhere personally to the individual. As a result, an “aide’s claim of privilege can be repudiated and thus waived by the [Member].” 13 Moreover, the fact that a legislative aide is carrying out a directive from the Member, or even has specific authorization from the House or Senate to take the act in question, “is not sufficient to insulate the act from judicial scrutiny.” 14 This principle was underscored in Kilbourn, in which the Court denied Speech or Debate Clause immunity for the Sergeant at Arms for carrying out an arrest pursuant to a House resolution,15 and Powell v. McCormack, in which the Court similarly held that a suit could be maintained against the House Sergeant at Arms, Doorkeeper, and Clerk for implementing the House’s exclusion of Representative Adam Clayton Powell.16

1: The Clause may be asserted not only by a current Member but also by a former Member in an action implicating his conduct while in Congress. See United States v. Brewster, 408 U.S. 501, 502 (1972).
2: Gravel v. United States, 408 U.S. 606, 616–17 (1972).
3: See Kilbourn v. Thompson, 103 U.S. 168, 200 (1881) (distinguishing between a claim against the Sergeant-at-Arms and a claim against a Member); Dombrowski v. Eastland, 387 U.S. 82, 84–85 (1967) (permitting a claim against an aide, but not the Member); Powell v. McCormack, 395 U.S. 486, 504 (1969) (noting that “although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts” ).
4: Dombrowski, 387 U.S. at 85 (quoting Tenney v. Brandhove, 341 U.S. at 367, 378 (1951).
5: Gravel, 408 U.S. at 628 (holding that an aide’s “immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune” ).
6: Id. at 617.
7: Id. at 616 (quoting United States v. Doe, 455 F.2d 753, 761 (1972)).
8: Id. at 616–17 (internal citations omitted).
9: Id. at 618–21.
10: Id. at 620 (noting that in Kilbourn, Dombrowski, and Powell “immunity was unavailable because [the aide] engaged in illegal conduct that was not entitled to Speech or Debate Clause protection” ).
11: See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 507 (1975); Doe v. McMillan, 412 U.S. 306, 309 (1973).
12: Gravel, 408 U.S. at 621–22 (noting that the “privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator’s behalf . . . .” ).
13: Id. at 622 n.13.
14: McMillan, 412 U.S. at 315 n.10.
15: Kilbourn v. Thompson, 103 U.S. at 199–200.
16: Powell v. McCormack, 395 U.S. at 504.