The U.S. Constitution provides members of Congress immunity from testifying before a grand jury about their “legislative activities.” In a landmark Supreme Court decision, the Court made clear that the Speech or Debate Clause is not limited literally to Representatives and Senators and that individuals who are covered by the Clause cannot resist testifying before a grand jury about communications and activity not covered by the Clause. Gravel v. United States, 408 U.S. 606 (1972).
Summary of our findings: Vice President Mike Pence may have a reasonable basis to claim that the Speech or Debate Clause includes a Vice President when acting as President of the Senate. However, that is largely to no avail here. First, the Clause, as interpreted by the Supreme Court, does not provide sufficient legal basis to resist wholesale a subpoena to testify before the grand jury in the January 6th investigation. Second, there are several lines of questions – which we describe below with specific examples – that would not be precluded by the Speech or Debate Clause.
Whether Special Counsel Jack Smith wants Pence’s testimony to fill gaps in the ongoing investigation or instead wants to lock in Pence’s testimony now in anticipation of a trial – either way Pence’s claim that he is covered by the Speech or Debate Clause is, on its own, a highly incomplete and inadequate answer. Even if the Clause applies to the vice president, several “categories [of questions] … could not qualify as legislative activities under any understanding of Supreme Court precedent,” Fulton County Special Purpose Grand Jury vs. Lindsey Graham, Case 22-12696 (11th Cir. 2022), denial of application for stay and an injunction pending appeal by Supreme Court (Nov. 1, 2022).
In sum, the Special Counsel need not end up in protracted litigation over whether the Speech or Debate Clause applies to Pence. The Special Counsel (and the courts) can assume that it does, and swiftly reject Pence’s effort to resist showing up at the courthouse or answering the lines of questions we outline below.
I. Assume for the sake of analysis that Vice President Pence’s counting of the ballots on January 6th is covered by the Speech or Debate Clause
The main focus of our attention is on the scope of the privilege if it applies to the vice president. However, we first briefly discuss the threshold question whether the Clause applies to Pence given its reference only to “Senators and Representatives.” Article I, section 6, Clause 1 reads:
“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.” (emphasis added)
For starters, contemporary sensibilities may associate the Office of the Vice President solely with the Executive Branch, but it is worth noting a few facts that illustrate the office’s historic and continuing connections to the Legislature. The president cannot fire the vice president. The vice president’s salary is paid from the Senate budget. What’s more, as J. William Leonard recently wrote:
“Former President Harry Truman himself wrote in his memoirs that the Vice President ‘is not an officer of the executive branch.’ Until Lyndon Johnson got an office on the White House grounds in the Executive Office Building, the only official office for use by the Vice President was in the Capitol building, and it was not until Walter Mondale that the Vice President had an office in the West Wing of the White House.”
When one of us (Andy) worked for Vice President Al Gore, a significant portion of the Office of Vice President staff was paid for out of the Senate budget, and those staff members had to abide by a different set of ethics rules than the Executive Branch staff. Compare Letter from Laurence H. Silberman, Acting Attorney General, to the Hon. Howard W. Cannon, Chairman, Senate Comm. on Rules and Administration, at 6 (Sept. 20, 1974) (“Certainly the Vice President is not a Member of Congress as that term is used in the Constitution. To be sure, for certain purposes he can be regarded as being in the legislative branch.”).
The Speech or Debate Clause is designed as a safeguard against politically motivated civil litigation or criminal prosecutions that can chill congressional debate or intimidate legislators. Given those objectives, it makes sense that the protections should extend to a Vice President when acting as President of the Senate or in other legislative branch capacity. It would be anomalous for the Constitution to provide all members of Congress legal immunity for casting a vote, but not the Vice President when he or she breaks the tie.
That said, insofar as the Clause is designed to protect members of Congress from the Executive’s “power to harass” them through use of law enforcement authorities, that separation-of-powers concern would scarcely if ever apply to the Executive’s turning such power against its own Vice President.
Regardless of how scholars and other commentators may view the issue, the Department of Justice, in August 2021, already adopted the position that Vice President Pence was covered on January 6th itself by the Speech or Debate Clause. The Department stated its position in a brief filed in response to a civil suit that named Pence and other members of Congress as defendants. The federal district court then indicated its agreement with the government stating that the plaintiff’s claims against the former vice president and members of Congress were “likely barred by absolute legislative immunity under the Speech or Debate clause.” (For a different view that accords far less weight to the Department’s August 2021 brief, see analysis by the National Review’s Matthew J. Franck.)
That’s not the first time the Department expressed that position. In a Dec. 31, 2020 brief, the Justice Department defended Vice President Pence against a suit filed by Rep. Louie Gohmert (R-Tex.) who was trying to stop the electoral count on Jan. 6. The Department stated: “The United States disagrees with plaintiffs’ unsupported assertion that the Constitution’s Speech or Debate Clause does not apply to the Vice President in his official capacity as the President of the Senate” (p.4 n. 1 & see also p.6). Over a year earlier, in a 2019 brief in a civil suit, the Justice Department also asserted that the Speech or Debate Clause covered the Vice President in his capacity as President of the Senate (p. 10 n.11, pp. 11-12). The brief discussed Supreme Court cases that have extended the protections of the Clause beyond “Representatives and Senators.” Compare Robert G. Dixon Jr., Assistant Attorney General, Office of Legal Counsel, U.S. Dep’t of Justice, Re: Amenability of the President, Vice President and Other Civil Officers to Federal Criminal Prosecution While in Office, at 36 (Sept. 24, 1973) (“With respect to his responsibility as tie breaker his immunity from prosecution should be analogized to that of Members of Congress under Article I, section 6, clause 1 of the Constitution.”) (emphasis added due to the lack of clarity).
What’s more, in a 2014 brief to the U.S. Supreme Court on behalf of then-Vice President Joe Biden, the Senate Legal Counsel took the position that the Speech or Debate Clause precluded a civil action against the vice president along with other Senate officers. In the lower federal court, a 2012 brief filed on behalf of Biden by the Senate Legal Counsel stated flatly, “The activities of the Vice President, in his role as President of the Senate, fall squarely within the scope of the Speech or Debate Clause,” and the brief proceeded to defend the position at length.
All that said, it can become more complicated to determine the role a vice president is playing in a specific factual scenario. On a continuum, there are clear executive branch roles (such as convening an interagency meeting in which the president has delegated a policy coordination role to the vice president) versus clear legislative branch roles (such as casting a vote when there’s a tie in the Senate) versus dual or more difficult to parse roles (such as participation in legislation formulation in which the vice president may be advising the executive on policy). See also Memorandum from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, to Edward L. Morgan, Deputy Counsel to the President, Advisory Commission on Intergovernmental Relations, 2 (Feb. 7, 1969) (“[T]he Vice President has now assumed a particular place in Government in which his status may be characterized as Legislative or Executive depending on the context.”).
But our focus, for the balance of this analysis, is on the limits to the scope of Speech or Debate protections assuming that Pence is covered by the Clause for his role on January 6th.
II. Scope of the Speech or Debate Clause protections as applied to Vice President Pence and the 2020 presidential election investigation
The Speech or Debate Clause protections are formidable, and the DC Circuit has defined them even more expansively than other circuits without the Supreme Court stepping in to resolve those circuit splits. But even within the broad understanding of the Clause, there are clear limitations that would allow for many lines of questions of Pence by the Department of Justice. We include Department requests for both documents and oral testimony, but focus here on questions that prosecutors could pose to Pence in his testimony before the grand jury.
On the limits of the Speech or Debate Clause, the Supreme Court said in the landmark Gravel opinion, “Article I, § 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true.” Gravel v. United States, 408 U.S. 606, 626 (1972). That same year, the Court explained in another influential case, “The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.” United States v. Brewster, 408 U.S. 501, 528 (1972) (emphasis added).
More specifically, the Supreme Court and DC Circuit case law allow for the following lines of inquiry to be pursued by the Justice Department and would not be vulnerable to meaningful litigation if Pence were to try to assert the contrary in court.
Permitted Line of Inquiry 1. Questions about Pence and his staff’s knowledge about and communications with and within the Trump Presidential Campaign.
Supreme Court case law:
In United States v. Brewster, 408 U.S. 501, 512-13 (1972), the Supreme Court defined political activities broadly to include actions by a congressional members’ office that are not legislative in nature and are often performed for the purpose of seeking reelection. This is especially significant because the types of questions we identify below are several degrees removed from even those kinds of official activities, and involve Pence’s personal involvement in political campaign activities and communications with the Trump Campaign.
The Supreme Court in Brewster stated:
“It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature, rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things ‘generally done in a session of the House by one of its members in relation to the business before it,’ Kilbourn v. Thompson, 103 U. S. 204, or things ‘said or done by him, as a representative, in the exercise of the functions of that office,’ Coffin v. Coffin, 4 Mass. 1, 27 (1808).” (emphasis added)
An example of applying this understanding of the Clause to the 2020 election is the unanimous Eleventh Circuit ruling in the case of Sen. Lindsey Graham and the Fulton County GA special grand jury subpoena. The Eleventh Circuit held that the Senator’s “communications and coordination with the Trump campaign regarding its post-election efforts in Georgia” could not qualify for Speech or Debate Clause protections “under any understanding of Supreme Court precedent” (emphasis added).
Example of permissible questions for Pence:
“Where you aware of internal Campaign research or outside research conducted on behalf of the Campaign that showed there was no widespread election fraud?”
“What were your communications and any coordination with the Trump Campaign regarding the campaign’s post-election efforts in Georgia”?
Note: John Eastman was a personal lawyer working with the Trump Campaign; Pence and his staff’s communications with Eastman may accordingly also be included within this line of inquiry.
Permitted Line of Inquiry 2. Questions about public speeches given outside of Congress
Supreme Court case law:
Once again, the influential passage in United States v. Brewster, 408 U.S. 501, 512-13 (1972) identifies activities not covered by the Speech or Debate Clause, including “speeches delivered outside the Congress.” Cf. Gravel v. United States, 408 U.S. 606, 622 (1972) (“Senator Gravel’s alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected speech or debate within the meaning of Art. I, s 6, cl. 1, of the Constitution. Historically, the English legislative privilege was not viewed as protecting republication of an otherwise immune libel on the floor of the House.”).
DC Circuit law: Subsequent DC Circuit case law explains that documents introduced in Congress but then released by the Member to the public are also not covered by the Clause. McSurely v. McClellan, 553 F.2d 1277, 1288-86 (D.C.Cir.1976) (en banc) stated:
“To the extent plaintiffs charge dissemination outside of the Halls of Congress, the federal defendants are not immune to further questioning. “That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Gravel v. United States, 408 U.S. 606, 625 (1972). Even though Members of Congress or their aides frequently intercede on behalf of constituents with agencies of the Executive Branch or disseminate to the public beyond “the legitimate legislative needs of Congress” documents introduced at committee hearings, such conduct falls outside of legislative immunity. It does not meet the test set forth in Gravel, that activities other than literal speech or debate are entitled to the immunity of the Speech or Debate Clause only when they are ‘an integral part of the deliberative (or) communicative processes by which Members participate in committee and House proceedings’ with respect to matters before the House. 408 U.S. at 625.” (emphasis added)
An example of applying this understanding of the Clause to the 2020 election is the unanimous Eleventh Circuit ruling in the case of Sen. Lindsey Graham and the Fulton County GA special grand jury subpoena. The Eleventh Circuit held that the Senator’s “public statements regarding the 2020 election” could not qualify for Speech or Debate Clause protections “under any understanding of Supreme Court precedent” (emphasis added).
Example of permissible questions for Pence:
Even though Pence publicly released his “Dear Colleague statement” on Jan. 6 explaining that he would adhere to his duties of counting the ballots during the congressional proceedings, we doubt whether this publication of the statement would open him to questions about the advice he received from staff or the process behind the statement. However, the public statement is arguably not privileged under the Speech and Debate Clause, and where the line is drawn here could be debated.
In sharp contrast, Pence’s book presents a meaningful distinction from a publicly released Dear Colleague letter because the publication of a commercially-sold book bears no relation to the legislative function. Importantly, that may render the Speech or Debate Clause inoperative to bar questions about claims made in Pence’s book. Prosecutors would likely be able to obtain testimony designed to test the factual basis of claims Pence makes in his book, since he elected to publish those claims outside of a legislative role. It would not be appropriate for the Speech or Debate Clause to be allowed to be used – whether by Pence or any other vice president or member of Congress – as a sword when it is designed to be a shield.
Permitted Line of Inquiry 3. Questions about Trump trying to get Pence to promise to perform a certain act in future, especially if Trump was doing so corruptly.
Supreme Court case law:
Taking a page from the Supreme Court’s bribery and public corruption cases in the context of the Speech and Debate Clause, it is clear that “promises by a Member to perform an act in the future are not legislative acts.” United States v. Helstoski, 442 U.S. 477, 489 (1979); United States v. Brewster, 408 U.S. 501, 524 (1972) (“[I]f the Executive may prosecute a Member’s attempt, as in Johnson, to influence another branch of the Government in return for a bribe, its power to harass is not greatly enhanced if it can prosecute for a promise relating to a legislative act in return for a bribe.”)
Note: One of the criminal offenses of relevance to the Special Counsel investigation is 18 USC 793 (prohibiting a conspiracy “to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof”).
Example of permissible questions for Pence:
“What actions did Trump expect you to take outside of your proper legislative duties?”
“What pressure did Trump apply to encourage you to violate your oath? Did you know that, on Jan. 5th, your Chief of Staff Marc Short alerted the head of your Secret Service detail that Mr. Short was concerned for your personal safety on Jan. 6 knowing that Trump’s disagreement with you was going to become public that following day?”
Permitted Line of Inquiry 4. Questions that predate Pence’s deliberations of how he would act on January 6th.
The Speech and Debate Clause would at most be triggered only once Pence’s role as President of the Senate and how he would act on Jan. 6th became a relevant consideration. Pence’s activities and knowledge of events preceding that point in the timeline would be fair game for the Department of Justice.
Example of permissible questions for Pence:
“Before Nov. 3, 2020, were you aware in advance of Trump’s plans to claim victory on election eve?”
Permitted Line of Inquiry 5. Cajoling or exhorting executive branch officials
The Speech and Debate Clause does not cover legislators’ efforts to cajole or exhort members of the executive branch at the federal or state level.
Supreme Court case law:
Gravel v. United States, 408 U.S. 606, 625 (1972): “That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity. United States v. Johnson decided at least this much.” (citing United States v. Johnson, 383 U.S. 169, 172 (1966)).
An example of applying this understanding of the Clause to the 2020 election is the unanimous Eleventh Circuit ruling in the case of Sen. Lindsey Graham and the Fulton County GA special grand jury subpoena. The Eleventh Circuit held that any of the Senator’s “efforts to ‘cajole’ or ‘exhort’ Georgia election officials” could not qualify for Speech or Debate Clause protections “under any understanding of Supreme Court precedent” (emphasis added).
Example of permissible questions for Pence:
“Were you aware of or involved in Trump’s efforts to cajole senior Justice Department officials to make false statements about findings of election fraud?”
“Were you aware of or involved in the preparation of Trump’s efforts to cajole Georgia Secretary of State Brad Raffensperger to come to a different election count in Georgia?”
“Were you aware of or involved in the preparation of Trump, Eastman, and Giuliani’s efforts to cajole Arizona House Speaker Rusty Bowers to overturn the election results in Arizona?”
III. Additional points and questions for further reflection
We do not necessarily resolve the issues below, but we note them for further consideration. None of these additional issues should distract from the clear boundaries of the Speech and Debate Clause and the lines of inquiry available to the Justice Department discussed above.
The Special Counsel need not end up in protracted litigation over whether the Speech or Debate Clause applies to Pence. The Special Counsel (and the courts) can assume that it does, and swiftly reject Pence’s effort to resist showing up at the courthouse or answering the lines of questions we outline.
The Speech and Debate Clause also applies to a Member’s staff, according to the Supreme Court’s well settled case law. Pence’s chief of staff and chief counsel appear to have answered the Special Counsel’s questions before the grand jury about Pence and done so without invoking the Speech and Debate Clause. Instead, they appear to have drawn the line around direct conversations with President Trump (as they did in their congressional testimony) and raised claims of “executive privilege” (to be overturned on those grounds by the DC federal court). Especially if Pence provided his senior staff guidance on the scope of questioning, their prior testimony raises the prospect that Speech and Debate Clause has effectively been waived and it is too late for Pence to raise it now for his testimony before the grand jury. Cf. Gravel, 408 U.S. at 622 n.13 (“It follows that an aide’s claim of privilege can be repudiated and thus waived by the Senator.”).
2. Ministerial role
Some might argue that the purely ministerial/ceremonial role of the vice president on Jan. 6 and the absence of any discretion on his part but to count the electoral ballots narrows the range of the Speech and Debate Clause. For example, this minimal role — which is different from the vice president’s role of casting a tie-breaking vote — could potentially constrain the scope of the Speech or Debate Clause that might otherwise be available for “information gathering” purposes. There was no fact-finding activity for Pence to conduct.
For DC Circuit case law on information-gathering and the Speech and Debate Clause, see: McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C.Cir.1976) (en banc) (“We have no doubt that information gathering, whether by issuance of subpoenas or field work by a Senator or his staff, is essential to informed deliberation over proposed legislation. The recent decision in Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 (1975), holds that “[t]he power to investigate and to do so through compulsory process plainly falls within’ the test for legislative activity announced in Gravel. We think this principle must also extend to field investigations by a Senator or his staff. ‘A Congressman cannot subpoena material unless he has enough threshold information to know where, to whom, or for what documents he should direct a subpoena. The acquisition of knowledge through informal sources is a necessary concomitant of legislative conduct and thus should be within the ambit of the privilege so that congressmen are able to discharge their constitutional duties properly.’).
3. Purpose of protecting Congress against Executive abuse
It is worth considering whether a broad application of the Speech and Debate Clause to the specific case at hand would be inconsistent with, or in fact defeat, a principal purpose of the Clause.
The Clause is designed to protect members of the Legislature from the Executive Branch’s “power to harass.” Compare United States v. Brewster, 408 U.S. 501, 524 (1972). The Justice Department’s purpose here is instead (a) to hear from Pence as a potential witness to a crime and (b) to protect the vice president as a member of the Legislature from pressure by the then-President Trump. Some federal courts have used this sort of logic in interpreting the scope of the Speech or Debate Clause. See, e.g., Brewster, 408 U.S. at 524-25 (“[F]inancial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.”); In re Fattah, 802 F.3d 516, 529 (3d Cir. 2015) (quoting Brewster); United States v. Renzi, 651 F.3d 1012, 1036 (9th Cir. 2011) (same).
Two countervailing points might be made, however, in rejection of that line of analysis. First, in the DC Circuit the distinction that Pence is only a witness to a potential crime by a third-party seems unavailing. DC Circuit case law suggests the purpose of obtaining evidence from members of Congress is not relevant to whether the action triggers the Speech and Debate Clause. See, e.g., United States v. Rayburn House, 497 F.3d 654 (D.C. Cir. 2007) (“[O]ur opinion in Brown Williamson makes clear that a key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put.”) (citing 62 F.3d at 419). Indeed, the Clause appears to prevent members of Congress from being called to testify about legislative acts that may implicate a third-party’s civil or criminal actions. Brown Williamson Tobacco v. Williams, 62 F.3d 408, 418 (D.C. Cir. 1995) (“We rejected the argument that the privilege ‘is available only if Congress can demonstrate that it faces the burden of defending a lawsuit that threatens an impermissible interference in congressional business by the judiciary.’ The Speech or Debate Clause, we said, ‘cannot be limited by so artificial a line. … A litigant does not have to name members or their staffs as parties to a suit in order to distract them from their legislative work. Discovery procedures can prove just as intrusive.’”) (citing Minpeco, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 859 (D.C. Cir. 1988) (emphasis added); see also Brown Williamson Tobacco, 62 at 418-19 (even if a subpoena does not embarrass or impugn the reputation of the members of Congress as a third party, that is irrelevant to the Speech and Debate Clause which protects the integrity of Congress and the legislative process).
In terms of pressure from the Executive, Pence’s team might argue that this case is exactly the situation called for by the Clause. On this view, a new Executive with politics hostile to Vice President Pence’s is deploying law enforcement resources to seek otherwise immunized information to prosecute overzealous supporters of the prior administration. We do not agree with that argument, but it shows how the logic of the analysis may be disputed. More strongly, Pence could argue that the purpose of the Clause is not a generalized pressure from the Executive and instead is specifically about imposing criminal or civil liability on Members of Congress or compelling them to testify or provide documents in criminal and civil proceedings that concern their legitimate legislative acts.
Finally, it is important to note that the DC Circuit takes the view that when a member of Congress is not themselves the target of a criminal investigation but instead can provide evidence for a grand jury investigation of a third party, “the privilege might be less stringently applied.” Rayburn House, 497 F.3d at 663; see also Brown Williamson Tobacco v. Williams, 62 F.3d at 419-20 (“Gravel‘s sensitivities to the existence of criminal proceedings against persons other than Members of Congress at least suggest that the testimonial privilege might be less stringently applied when inconsistent with a sovereign interest, but is ‘absolute’ in all other contexts.”).
4. The significance of the fact that Trump wanted Pence to take action that was not within the vice president’s legislative authority, and Pence never considered it to be within his authority.
In applying the Speech or Debate Clause, the Supreme Court has drawn lines around protecting legitimate legislative activity. Accordingly, Trump’s pressuring Pence to violate his oath of office and engage in conduct not lawfully permitted by the role as President of the Senate is arguably not covered by the Clause. Cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) (“The question to be resolved is whether the actions of the petitioners fall within the ‘sphere of legitimate legislative activity.’ If they do, the petitioners “shall not be questioned in any other Place” about those activities since the prohibitions of the Speech or Debate Clause are absolute.”) (emphasis added); Brown Williamson Tobacco v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995) (“The Clause is not, to be sure, a blanket prohibition on suits against congressmen. It protects only those congressional acts properly thought to fall within the legislative function.”) (emphasis added).
– – – footnotes – – –
- See Jubelirer v. Singel, 162 Pa. Commw. 55, 63-64 (Pa. Commw. Ct. 1994) (“The Pennsylvania Supreme Court has stated that the scope of the Pennsylvania Speech and Debate Clause is essentially the same as that of the federal Speech and Debate Clause and that cases clarifying the federal clause provide guidance in interpreting the Pennsylvania clause;” “Moreover, in Nolan, 470 Pa. 372, 368 A.2d 675 (1977), the Pennsylvania Supreme Court indicated that the Lieutenant Governor, acting in his capacity as President of the Senate, would also be immunized from suit under the Speech and Debate Clause.”); Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 382 (1977) (“We agree, however, with the contention of appellees Nolan and [Lieutenant Governor] Kline … that the complaint should have been dismissed as to them because of Article II, Section 15 of the Pennsylvania Constitution, which provides in pertinent part that ‘for any speech or debate in either House’ the members of the General Assembly ;shall not be questioned in any other place.’); The Constitution of Pennsylvania Art. II, § 15 (“The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions 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.”) (emphasis added). ↑
- The brief cites Eastland, 421 U.S. at 507; Gravel, 408 U.S. at 616-18, but discusses at greater length, Doe v. McMillan, 412 U.S. 306, 320 (1973) in which the Supreme Court stated that “the Public Printer and the Superintendent of Documents … to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause.” ↑
- The brief states: “The Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, precludes jurisdiction over this suit. Under that Clause, Senate officers are absolutely immune from suit for any legislative actions supporting the Senate in carrying out debate under its rules because such acts fall squarely within the sphere of legitimate legislative activity protected from questioning by the Clause.” ↑
- Brown Williamson Tobacco v. Williams, 62 F.3d 408, 416 (D.C. Cir. 1995): “As with criminal prosecutions, however, the privilege only bars civil suits when the action complained of falls within the legislative sphere. For example, although a congressman cannot be sued for defamatory statements made on the House floor, he has no claim to immunity for a libel action based on his subsequent republication of those statements outside Congress; those later expressions are no part of the ‘legislative process.’ See Hutchinson v. Proxmire, 443 U.S. 111, 127-28 (1979); see also Gravel v. United States, 408 U.S. 606, 622-27 (1972); cf. McMillan, 412 U.S. at 314-16 nn. 8, 10 (1973); McSurely, 553 F.2d at 1285-86.” ↑