Speech or Debate Clause Protections for Informal Member Oversight and Investigations

Speech or Debate Clause Protections for Informal Member Oversight and Investigations

Legal Sidebari

Speech or Debate Clause Protections for
Informal Member Oversight and
Investigations
November 7, 2022
The Supreme Court recently cleared the way for a state grand jury to question Senator Lindsey Graham
about his role in the 2020 presidential election in Georgia, including with respect to aspects of alleged
phone calls the Senator placed to Georgia election officials. The dispute over Senator Graham’s
testimony—which in large part focuses on the protections the Constitution’s Speech or Debate Clause
(the Clause) affords to investigative or oversight communications between Members of Congress and
other government officials—is unlikely to be over soon. While Senator Graham may now need to appear
before the grand jury, the Supreme Court made clear that he “may return to the District Court should
disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions.”
Senator Graham, therefore, may be able to raise Speech or Debate objections in response to questions that
the Senator feels relate to protected legislative acts.
The pair of district court opinions in In re subpoena to Non-party Lindsey O. Graham reflect the difficulty
of determining what types of Member communications are protected by the Speech or Debate Clause and
the constitutional sensitivities of courts investigating the content of Member communications to
determine their protected status. The case is not the first of its kind. It takes place within a legal context in
which courts have disagreed about how to treat an individual Member’s own informal investigative or
oversight activities. How this uncertainty is ultimately resolved—in this case or future cases—could
either inhibit informal, Member-driven investigations and oversight by subjecting them to examination
from outside of Congress, or facilitate such activities by shielding them from outside inquiry as part of the
legislative function performed by all Members.
Background
In January 2022, a special purpose grand jury was empaneled in Fulton County, Georgia, to investigate
“possible attempts to disrupt the lawful administration of the 2020 elections in the state of Georgia.” As
part of the ensuing investigation, the District Attorney caused the grand jury to issue a subpoena to
Senator Graham seeking his testimony as a witness. Senator Graham moved to quash the subpoena,
arguing, among other things, that he could not be compelled to testify before the grand jury because his
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alleged communications with Georgia election officials were investigatory, made to inform himself for his
legislative duties, and therefore absolutely protected by the Clause.
The U.S. District Court for the Northern District of Georgia, in a pair of opinions entitled In re subpoena
to Non-party Lindsey O. Graham, rejected Senator Graham’s argument that the subpoena should be
quashed in its entirety. The court instead held that while the Clause prevented the District Attorney from
questioning Senator Graham about the “legislative fact finding” aspects of any calls to Georgia election
officials, the District Attorney could ask him targeted questions about any non-investigatory aspects of
those calls. Senator Graham could, the court reasoned, also be asked about other non-legislative conduct,
including communications with the Trump Campaign, public statements on the 2020 election, and other
efforts to influence the actions of Georgia election officials. The U.S. Court of Appeals for the Eleventh
Circuit agreed with the district court’s reasoning, holding in response to an emergency motion that “there
is significant dispute about whether [the Senator’s] phone calls with Georgia election officials were
legislative investigations at all” and concluding that the district court approach would “enable[] a process
through which that dispute can be resolved.”
Senator Graham eventually asked the Supreme Court for a stay, which was temporarily granted by Justice
Thomas and referred to the full Court. On November 1 the Court rejected the Senator’s request, reasoning
that a stay was not necessary because the district court had “assumed that the informal investigative fact-
finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech
or Debate Clause” and that “Senator Graham may not be questioned about such activities.” That ruling,
the Court reasoned in its brief order, adequately protected the Senator’s constitutional prerogatives
because, as previously noted, Senator Graham may return to court “should disputes arise regarding the
application of the Speech or Debate Clause immunity to specific questions.”
The Speech or Debate Clause and Member Interactions with Government Officials
for Purposes of Investigation or Oversight
The Speech or Debate Clause provides that for any “Speech or Debate in either House,” Members of
Congress “shall not be questioned in any other Place.” As interpreted by the Supreme Court, the Clause
largely immunizes Members from criminal and civil liability or any form of compelled testimony that is
predicated on their “legislative” activities. The purpose of the Clause is not simply to protect Members by
giving them special treatment under the law. The Clause instead acts as a key component of the
Constitution’s separation of powers; safeguarding legislative independence by ensuring that neither
executive, judicial, nor state legal processes are used to improperly influence, intimidate, or harass
Members.
The types of actions that are given protection by the Clause go beyond formal “Speech or Debate” in the
halls of Congress. The Clause’s protective umbrella extends to cover any action that is an “integral part of
the deliberative and communicative processes” through which Members engage either in “the
consideration and passage or rejection of proposed legislation” or “other matters which the Constitution
places within the jurisdiction of either House.” If the act in question is deemed to be sufficiently
“legislative,” there is no “balancing” of the various interests at play. The Clause is an “absolute bar to
interference.”
The Supreme Court has previously found that investigative and oversight actions sanctioned by either the
House, Senate, or a congressional committee are the type of legislative acts that receive Speech or Debate
Clause protections. “The power to investigate,” the Supreme Court has held, “plainly falls” within the
definition of “legislative.” This conclusion is perhaps unsurprising given that investigative oversight has
generally been viewed not only as a “legitimate task of Congress,” but one “essential” to the legislative
function. As such, actions taken as part of an authorized congressional investigation, including those

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actions taken by individual Members at hearings, in issuing subpoenas, or pursuing contempt, have all
been interpreted to be protected legislative acts.
Courts have been less receptive to protecting informal investigative and oversight actions undertaken by
individual Members outside of formal committee investigations, including Member communications with
other government officials. While these interactions are generally viewed as “official” and “legitimate,”
they are not always “legislative.” Notably, the Supreme Court has suggested that efforts to influence how
the executive branch implements or administers the laws enacted by Congress (a common and legitimate
oversight activity) are insufficiently connected to the legislative function and, therefore, not protected by
the Clause, at least when conducted “informally” by an individual Member. As stated by the Supreme
Court:
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.
On the other hand, informally speaking with a government official in an effort to gather facts to assist the
Member in their legislative duties (rather than seeking to “cajole” or “exhort” the official) has sometimes
been given the protections of the Clause. This recognition of the importance of legislative fact-finding by
individual Members is consistent with the position generally taken by Members that as constitutionally
elected officers of the legislative branch, they are authorized to engage in oversight and investigations and
entitled to access necessary information. The Department of Justice has taken a different view, concluding
that individual Members “do not have the authority to conduct oversight in the absence of a specific
delegation by a full house, committee, or subcommittee.” The D.C. Circuit, however, has previously
suggested support for the congressional position. Reasoning in the context of the Freedom of Information
Act, rather than in relation to the Clause, that court stated:
All Members have a constitutionally recognized status entitling them to share in general
congressional powers and responsibilities, many of them requiring access to executive information.
… Each of them participates in the law-making process; each has a voice and a vote in that process;
and each is entitled to request such information from the executive agencies as will enable him to
carry out the responsibilities of a legislator.
Still, there are courts that do not view informal actions by individual Members as “integral to the
legislative process” for purposes of the Clause. In those jurisdictions, such activity would receive no
protections, and a Member may be subject to criminal or civil liability for that activity or questioned
against her will by executive branch or state investigative authorities. Still other courts have adopted a
middle ground, holding that “oversight activities” do “not automatically result in Speech or Debate
protections,” but “exist along a spectrum” in which some informal actions are unprotected but other
“informal attempts to influence the Executive Branch on policy, for actual legislative purposes, may
qualify as ‘true legislative oversight’ and merit Speech or Debate immunity.”
The Graham Litigation and Its Potential Impact
After noting the existing uncertainty over the scope of the Clause’s protections, the district court in
Graham ultimately reached the conclusion that informal investigative activities by an individual Member
of Congress can constitute legislative activity protected by the Clause. Specifically, the court held that
while actions taken pursuant to a formally authorized congressional investigation would presumably
always fall within the sphere of legitimate legislative activity, the fact that a member's individual
investigative efforts may not be tied to an official congressional inquiry does not necessarily mean
that such an investigation is per se non-legislative. The Court is therefore persuaded that, in some
instances, fact-finding inquiries carried out by individual members of Congress can fall within the
sphere of legislative activity protected by the Speech or Debate Clause.

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As applied to Senator Graham, the court reasoned that because Members have the legislative
responsibility of certifying presidential elections under the Electoral Count Act, “to the extent Senator
Graham was merely asking questions about Georgia’s then-existing election procedures and allegations of
voter fraud in the leadup to his certification vote, such questions are shielded from inquiry under the
Speech or Debate Clause. In other words, Senator Graham cannot be asked about the portions of the calls
that were legislative fact-finding.”
The court could not, however, “simply accept Senator Graham’s sweeping and conclusory
characterizations of the calls” as “comprise[d] entirely of legislative fact-finding.” Instead, the court
concluded that because a call from a South Carolina Senator to a Georgia state election official is not
“manifestly legislative,” and because the nature of the calls has been a matter of public dispute, the record
must be “more developed” before the court could determine whether the “entirety” of the call constituted
legislative activity. Accordingly, Senator Graham may face “targeted and specific questioning” about the
non-investigatory aspects of the calls—for example, whether he asked Georgia election officials to take
any specific actions, including throwing out ballots. This conclusion, the court reasoned, was consistent
with the Supreme Court’s prior holdings that efforts to “cajole” government officials—i.e., efforts to
influence official action—though “expected” and routine, are non-legislative and unprotected by the
Clause.
Though the judicial decisions in the Graham litigation have recognized the importance of legislative fact-
finding by individual Members and concluded that in some circumstances that activity receives Speech or
Debate protections, the holding that Member fact-finding is not facially or “manifestly” legislative is a
significant one for Congress. It confirms the principle that “informal” investigative activities by
individual Members will sometimes be treated differently from more formal investigative activities
connected to a committee investigation. If an individual Member communicates with a government
official outside of a committee investigation, a federal or state prosecutor may be free to compel the
Member’s testimony on the non-investigatory aspects of the communication (and in some courts, perhaps
the investigatory aspects). On the other hand, if a Member makes the same statements to the same official
as part of a committee investigation—for example, in a hearing or deposition—those statements are likely
to be absolutely protected by a court. The Clause generally would not permit that same prosecutor to
examine further the content of the Member’s communications in that context.
Given the parties’ divergent views on the Clause, it seems likely that if Senator Graham appears before
the special grand jury, disputes will arise as to whether specific questions relate to constitutionally
protected communications or conduct. If that happens, either party may return the dispute to the federal
courts, and the case may again make its way to the Supreme Court where, if appropriate, the Court could
shed greater light on the extent to which the Justices view the Clause as protecting informal investigative
and oversight activities by individual Members. That potential decision could have a significant impact on
informal Member fact-finding.

Author Information

Todd Garvey

Legislative Attorney

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Disclaimer
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