Monday 13 December 2010

Rule VIII House of Representatives

This rule deals with the procedures to be followed when a subpoena is served on a Member, Delegate, Resident Commissioner, Officer or Employee of the House - relating to the official functions of the House or for the production or disclosure of any document relating to the official functions of the House

A subpoena is a "a writ requiring appearance in court to give testimony". It derives from the Latin phrase "under penalty", signifying that it is not merely an invitation to which one might or might not RSVP!

The Speaker is to be nofied in writing "promptly" - who will notify the House.

House Practice states -

The service of judicial process on a Member, Delegate, Resident Commissioner, officer, or employee of the House has long been perceived as a matter relating to the integrity of House proceedings and as constituting a basis for raising a question of the privileges of the House. 7 Cannon § 2164; Deschler Ch 11 §§ 14.1–14.10. Rule VIII governs the procedure for House response to a judicial or administrative subpoena served on a Member, Delegate, Resident Commissioner, officer, or employee of the House. Manual § 697; § 9, infra.

The privileges of the House are invoked whether the recipient was served with a summons as a defendant or a subpoena as a witness and whether service of process was issued by a State or Federal court. Deschler Ch 11 § 14. For example, the privileges of the House have been held to apply to service of process as follows:
  • Civil actions, criminal proceedings, or courts martial. Deschler Ch 11§§ 16.7, 16.9, 16.12, 16.17.
  • Grand jury proceedings. Deschler Ch 11 § 15.
  • Orders to appear and show cause for the failure to comply with a prior subpoena. Deschler Ch 11 § 14.9.
  • Orders to appear for depositions or to answer interrogatories. Deschler Ch 11 §§ 14.10, 16.18.
  • Preliminary proceedings in criminal cases. Deschler Ch 11 § 14.5.
  • Administrative proceedings before Federal agencies. Manual § 697.
Under rule VIII clause 6(b), minutes or transcripts of executive sessions, or evidence received during such sessions, may not be disclosed or copied in response to a subpoena. A subpoena duces tecum [ subpoena for production of evidence] requesting production of executive session records of a committee from a prior Congress may be laid before the House pending a determination as to its propriety. 97–1, Apr. 28, 1981, p 7603.

Service of Process on Officers or Employees

Examples of service of process on officers include those on the Speaker, the Clerk, and the Sergeant-at-Arms. Deschler Ch 11 §§ 16.2–16.4, 16.7–16.9, 16.11. Examples of service of process on employees include those on current and former employees of a committee, an employee of the House Republican Conference, and a former employee of a former House select committee who was subpoenaed to give a deposition about his recollection of certain executive session transactions. 93–2, Sept. 30, 1974, p 33020; 94–1, Sept. 23, 1975, p 29824; 97–1, Jan. 22, 1981, pp 694, 695.

§ 9. Procedure in Complying with Process under Rule VIII

Rule VIII provides general authority to a Member, Delegate, Resident Commissioner, officer, and employee of the House to comply with a judicial or administrative subpoena or judicial order directing appearance as a witness, or the disclosure of documents, relating to the official functions of the House. Such compliance must be consistent with the rights and privileges of the House. Accordingly, the Speaker is promptly notified upon service of a subpoena or judicial order, and the Speaker lays the notification before the House. Rule VIII does not require the text of the subpoena to be printed in the Congressional Record. Manual § 697.

Rule VIII was added initially in the 97th Congress. Until the 95th Congress, the House would authorize a response to a subpoena by adopting a resolution raised as a question of the privileges of the House. This case by case approach was changed in the 95th and 96th Congresses, when general authority was granted to respond to subpoenas and a procedure was established for automatic compliance without the necessity of a House vote.

This standing authority formed the basis for the present rule. Manual § 697.

§ 10. — Resolutions Authorizing or Precluding Response

Although rule VIII establishes a procedure for automatic compliance with subpoenas without the necessity of a House vote, a question of the privileges of the House still may be raised to address the response of the House to a subpoena in any particular case. Manual § 697. For example, in the 102d Congress, the House considered as questions of the privileges of the House resolutions responding to a subpoena for certain records of the House, and to a contemporaneous request for such records from a special counsel. The resolutions authorized an officer of the House to release certain documents in response to the requests from the special counsel. Manual § 703.

Duration of Authorization

Resolutions authorizing a response to a subpoena or other judicial order are effective only during the Congress in which they are adopted. If the judicial proceedings in question extend into the next Congress, it may be necessary to seek another authorizing resolution, which may be offered as a question of privilege. Deschler Ch 11 §§ 18.1, 18.2.

§ 11. — Conditions or Limitations on Response

Prior to the adoption of rule VIII, when the House authorized a response to a subpoena by resolution on an ad hoc basis, the House occasionally imposed various conditions or limitations, such as:
  • Permitting copies, but not original documents, to be produced. Manual § 291a; Deschler Ch 11 § 18.
  • Limiting disclosure to certified copies of relevant documents. Manual § 291a.
  • Prohibiting disclosure of information acquired in one’s official capacity. Deschler Ch 11 § 17.6.
  • Prohibiting disclosure of information not previously made public. Deschler Ch 11 § 17.10.
  • Limiting disclosure to certain files and specified documents and only for inspection and copying. Deschler Ch 11 § 17.9.
  • Permitting disclosure only on a determination of relevancy. 94–2, Mar. 31, 1976, p 8885.
  • Permitting disclosure of certain documents but barring personal appearances. Deschler Ch 14 § 15.14.
  • Permitting personal appearances but barring production of certain records. Deschler Ch 11 § 18.
  • Permitting production of original documents for laboratory examination but providing for their return. Manual § 291a.
  • Permitting a Member to respond only when the House is not in session. 94–1, Dec. 1, 1975, p 37888.
§ 12. Disclosure of Executive-Session Materials

The House traditionally has required that executive-session materials be released only when specifically permitted by authorizing resolution. Deschler Ch 11 § 18.4. This practice is continued under rule VIII clause 6(b), which states that under no circumstances shall any minutes or transcripts of executive sessions, or any evidence of witnesses in respect thereto, be disclosed or copied. Manual § 697. Before the adoption of rule VIII, the House by resolution asserted the privileges of the House against the release of executive-session materials or permitted the disclosure only after a judicial finding of relevancy. Manual § 291a