The Speech or Debate Clause is a clause in the United States Constitution (Article I, Section 6, Clause 1). The clause states that "The Senators and Representatives" of Congress "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 from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
The intended purpose is to prevent a U.S. President or other officials of the executive branch from having members arrested on a pretext to prevent them from voting a certain way or otherwise taking actions with which the president might disagree. It also protects members from civil suits related to their official duties.
A similar clause in many state constitutions protects members of state legislatures. Legislators elsewhere in the world are often similarly protected under the doctrine of parliamentary immunity.
Case law
Gravel v. United States: congressional aides and private publication
On , Senator Mike Gravel (D-Alaska) received a copy of the Pentagon Papers from Ben Bagdikian, an editor at The Washington Post. Over the next several days, Gravel (who was dyslexic) was assisted by his congressional office staff in reading and analyzing the report. Worried his home might be raided by the Federal Bureau of Investigation, Gravel smuggled the report, which filled two large suitcases, into his Senate office, which was being guarded by disabled Vietnam veterans.
On the evening of , Gravel attempted to read the Pentagon Papers into the Congressional Record. A lack of a quorum, however, prevented the Senate from convening. As chair of the Senate Subcommittee on Public Buildings and Grounds, Gravel convened a meeting of the subcommittee and spent an hour reading part of the Pentagon Papers into the record. Prevented by his dyslexia from continuing, Gravel had the remainder of the Pentagon Papers entered into the record.
Gravel arranged to have the Pentagon Papers published by a private publisher, Beacon Press, a nonprofit book publisher owned by the Unitarian Universalist Association.
A federal grand jury was empaneled to investigate possible violations of federal law in the release of the report. Leonard Rodberg, a Gravel aide, was subpoenaed to testify about his role in obtaining and arranging for publication of the Pentagon Papers. Senator Gravel intervened and asked a court to quash the subpoena, contending that forcing Rodberg to testify would violate the Speech or Debate Clause. A federal district court refused to grant the motion to quash but did agree to proscribe certain questions. The trial court also held that publication of the Pentagon Papers by a private press was not protected by the Speech or Debate Clause. The Court of Appeals affirmed the district court's ruling, although it modified the categories of barred questions. The United States appealed the barring of questions, and Senator Gravel appealed the ruling regarding publication. The United States Supreme Court granted certiorari.
In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court held (5–4) that the privileges of the Speech or Debate Clause extend to Congressional aides. Rejecting the reasoning of the Court of Appeals, the Supreme Court held, "the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself".
The Court refused to protect congressional aides either from prosecution for criminal conduct or from testifying at trials or grand jury proceedings involving third-party crimes. The Supreme Court also vacated the lower court's order permitting some questions and barring others, concluding that if the testimony is privileged then the privilege is absolute.
The Supreme Court upheld the district court ruling regarding private publication. "[Private] publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence."
The Gravel case narrowed the protections offered by the Speech or Debate Clause.
United States v. Rayburn House Office Building: searches of congressional offices
In May 2006, the FBI raided the office of Representative William J. Jefferson, a Democratic congressman from Louisiana, in the Rayburn House Office Building on Capitol Hill. The raid took place during the fourteenth month of an investigation into Jefferson's business ventures in Africa.