An attempt to force five Republican lawmakers into providing information to the House panel probing the Jan. 6 attack on the Capitol is unlikely to end with the subpoenas issued May 12, 2022.
House Minority Leader Kevin McCarthy and the four other Republican holdouts have yet to say if they will comply with, defy or challenge the order. But the question of whether a committee can subpoena a sitting member of Congress is almost certain to be headed to the courts. If it does, Congress' authority will be determined in part by a little-known provision of the U.S. Constitution called the "speech or debate" clause.
This clause protects legislators and their staff from liability for doing things like giving floor speeches, voting on legislation, and conducting investigations.
It would not be the first time that this provision of the Constitution has been invoked during a congressional inquiry. In fact, the clause has played a central role in determining the boundaries of Congress' constitutional authority in the separation of powers system.
What is the speech or debate clause?
The origins of the speech or debate clause stemmed from the kind of practices that limited the freedom of U.K. parliamentarians.
During the 16th and 17th centuries, the British monarchy often used the threat of criminal prosecution to intimidate legislators and prevent them from acting against the crown. King James II, for example, ordered the prosecution of the speaker of the House of Commons for publicizing alleged plots between James II and the King of France to reinstate Catholicism as England's official religion. Concerns over the king's actions led Parliament to place a clause in the English Bill of Rights that prevented prosecution for legislative acts.
As a result, Article 1 of the U.S. Constitution grants members of Congress legal immunity from liability for any speech or debate. In other words, the Constitution protects members of Congress from having to worry about being sued for expressing themselves while doing their jobs.
The Supreme Court has repeatedly recognized that the provision not only protects speech and debate, but extends to all actions related to legitimate legislative functions.
The protection, however, does not extend to speech or debate that is only incidentally related to legislators' official duties, such as addresses made outside of Congress or remarks in press releases.
Why is the clause important?
Because the clause extends to all legitimate legislative functions, "speech or debate" issues come up in virtually every congressional investigation.
One of the earliest Supreme Court decisions involving the clause was an 1880 case in which real estate broker Hallett Kilbourn refused to testify in a House investigation of the bankruptcy of a bank that held government bonds. The Court's decision in the case centered on whether Kilbourn could sue the House of Representatives for holding him in contempt. In its opinion, the Supreme Court found that the speech or debate clause prevented such a lawsuit.
Other historical speech or debate cases have addressed the extent to which a legislator's actions on the floor of Congress could be used as evidence of conspiracy and whether committees have the authority to subpoena bank records to further congressional investigations. In general, courts have consistently used the speech or debate clause to protect the ability of members of Congress to do their jobs.
All of this litigation has helped define the parameters of what it means for Congress to engage in constitutionally legitimate actions and the limits of congressional power.
Precedent in speech or debate cases has also played a key role in legal battles involving congressional investigations into the Trump presidency as well as the Jan. 6 attack on the Capitol.
In 2019, the Supreme Court used speech or debate jurisprudence when evaluating the constitutionality of House subpoenas seeking President Donald Trump's financial records.
Additionally, the clause came up in recent litigation between the Republican National Committee (RNC) and House Speaker Nancy Pelosi. The Jan. 6 committee subpoenaed Salesforce.com for information regarding how the Trump campaign used Salesforce to spread false statements about the 2020 election. Salesforce and the RNC challenged the constitutionality of the subpoena in court. In response, Speaker Pelosi and House Democrats argued that the speech or debate clause prohibited the entire lawsuit. In an opinion issued on May 1, 2022, the D.C. District Court sided with the Democrats and threw out the litigation on the grounds that the Jan. 6 committee is serving a valid legislative purpose.
What happens now?
It now may be the Republicans' turn to invoke the clause.
If the five subpoenaed members of Congress refuse to comply, then Congress could seek to hold them in contempt. That would likely push the matter to the courts.
Yet there is a catch. Because speech or debate provides legislators with immunity from both civil and criminal lawsuits, the clause prevents courts from hearing certain types of cases. And even when immunity does not apply directly, the clause may grant members with protections against the introduction of evidence or having to testify about certain actions if they relate to a legitimate legislative purpose.
It is difficult to know precisely how the clause will apply in the case of the five Republican lawmakers - there is little history of a committee issuing subpoenas to members of Congress outside of ethics investigations.
But invoking the clause might at the very least prolong the legal battle over whether the Jan. 6 panel can force lawmakers into giving evidence and buy the subpoenaed legislators time, perhaps even pushing the issue beyond the 2022 midterm elections.