Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 887 - 899)




  887. Mr Johnson, may I welcome you to this Committee. We appreciate very much your coming here today to help us. As I understand it—subject to your approval, of course—you are assisting us unofficially in that a record is going to be made of what is said but nothing that you tell us will be published without our first obtaining your consent. Is that your understanding of the arrangement that we are making this morning and is that acceptable to you?

  (Mr Johnson) Very satisfactory. It is a pleasure to be here.

  888. The one matter that I would like to raise with you arises out of discussions which have very much concerned this Committee and that is the issue of bribery. Before I do that, can I just check with you whether privilege is an expression which is used in Congress?

  A. Yes, it is.

  889. Does it function in much the same sort of way as at Westminster?

  A. There are so many similarities because our rules and our traditions in large measure are based upon the traditions of this Parliament. The protection under the freedom of speech or debate clause is a constitutional protection under Article 1 of the United States Constitution which cannot be altered by statute. It is a basic privilege that inures to the benefit of the institution, as I heard discussed, through its members. There is also the constitutional privilege of freedom from arrest during sessions and travelling thereto, except for felony and breach of the peace—a broad exception. The freedom from arrest which includes the freedom that members enjoy from being subpoenaed and having to respond to subpoenas during the session, is meant to secure the sanctity and continuity of the sessions of the Congress, and it is an institutional privilege. We also have a House rule with respect to privilege that allows certain issues to supersede all others. Privileges of the House can be whatever a particular Member believes, subject to the ruling of the Speaker, to be a matter of very immediate concern involving the dignity of the House and the integrity of the House's proceedings. In that context the term privilege is a procedural notion that allows a resolution to come before the House superseding all other questions. There are limits on the immediacy with which those issues may be debated in the House of Representatives. The majority/minority leaders enjoy immediate privilege. Other members are subject to up to two days notice of the text of their resolution. There is also a so-called personal privilege which allows a Member to respond to press accusations of impropriety in the member's official capacity. It is really just an extended debate period where again a member who has been attacked, normally in the press, can respond in the chamber for up to one hour to accusations of official impropriety. So that is another notion of privilege. As I see your focus in the brief time I have been privileged to attend, you are looking at the speech or debate clause. We have on the statute books in the United States a criminal statute of bribery which is—and I am not totally familiar with it because it is not my responsibility to interpret the criminal laws or to advise members with respect to the criminal laws—a statute of general applicability to federal officials. I have given your Committee clerks a copy. It is not uniquely applicable to members of the House as such. The code of official conduct, however, which is part of House Rule 43 currently, does have a general restriction against members receiving compensation in return for influence improperly exercised. It is a very generally stated restriction against bribery, accepting money in return for speeches or other legislative activity. I furnished your Committee clerks with a seven page contemporary summary of court decisions that have outlined the limits of our speech or debate protections as they inure to the members and to the Congress as an institution. From what I gather the protection is similar to the types of legislative activity that are protected by your Bill of Rights, certainly speeches on the floor, activity in committee, but activity in a broader sense, not just speech making but the introduction of Bills, the production of reports and other activity that is properly legislative. One interesting new development within our jurisprudence, with regard to members who are required to disclose their private finances, or who are called before our Ethics Committee (Standards of Official Conduct) in executive session to testify about their conduct, is the extent to which that testimony or disclosure is protected against a collateral use in the courts in the event that the member is subsequently or simultaneously being prosecuted in a criminal case or questioned in a civil action. The court cases are less clear with regard to a member who is not making a speech in open session, but rather trying to justify or defend himself before our Ethics Committee in closed session, and whether that evidence, if ultimately released by the committee, can thereafter be used during a court proceeding. As that area of jurisprudence develops, I would be happy to furnish information to you for whatever benefit might accrue. That is quite a long-winded response to the various usages of the notion of privilege under our system.

  890. I think that is a very helpful bird's-eye view. On the question of bribery, we have been shown a copy of the decision of the Supreme Court in Brewster. That was 1972. Is that still the law in the United States?

  A. Yes.

  891. Can you help me, then, on this. As I understand the judgment of the majority given by Chief Justice Warren Burger, the approach to the speech or debate clause immunity in this field is that, putting it loosely, if a member receives a bribe in return for subsequently doing what would be undoubtedly a legislative act, such as voting, that conduct is none the less amenable to the criminal law, because the prosecution can prove the necessary ingredients without having to have recourse to anything that has happened in Congress. Pausing there for a moment, have I roughly got that right so far?

  A. Yes, I believe so.

  892. On that footing, are there any types of conduct which would not be amenable to the criminal law by virtue of the speech or debate clause?

  A. Activity of members outside—if I understand your question correctly—the formality of the congressional process, such as speech-making, interviews in a television studio, constituents' letters—activity which may tend to help an incumbent get re-elected, but which is not legislative activity, is cognisable under whatever statute is properly within a court's jurisdiction to construe in criminal or civil litigation, including, I would think, the bribery statute. I should have familiarised myself with the Brewster case, but I think the basic notion of allowing the courts and the prosecutors independently to develop a line of evidence which does not include evidence of direct legislative activity is, within our jurisprudence, properly within the separation of powers, subjecting members of Congress, as part of a broader defined category of federal officials to prosecution for bribery, without that evidentiary admissibility of an actual legislative act. There is so much else, I suppose—and I am not a criminal lawyer—that can be adduced in a trial, that will tend to prove the improper acceptance of a bribe, without the formal legislative act necessarily being part of the evidence.

  893. What I am concerned to understand is what are the actual types of conduct which would be immune from criminal prosecution only because they fall within the speech or debate clause? If Brewster carries with it the proposition that a bribe in return for voting in Congress is not immune from prosecution, I have difficulty in understanding what types of conduct would be immune from prosecution by virtue of your speech or debate clause. Can you help me?

  A. I am not sure I can. I think the distinction is between introduction into evidence of the act of voting, or the speech-making, or the introduction of a bill or other activity attendant to the legislative process, and the ability to prosecute apart from that evidence. I believe the ultimate desire is to protect independence of Congress as an institution, while it is properly functioning as a legislative branch, from intrusion in the courts, to protect that degree of independence by protecting the individual members. I am not in a position to say to you what specific immunity defences, in the wake of Brewster, are available merely because they involve legislative activity. That is not my area of expertise.

  894. You may not be able to help me on my further question. If so, please say. We are not attempting to score points, we are trying to get the benefit of your help on those matters on which you have your very considerable expertise. Take a case such as Brewster where there has been, so to say, bribery in respect of a matter which is none the less amenable to criminal prosecution. Let us take the case, indeed, of a bribe in return for voting. The prosecution can prove its case without having to go inside Congress, but would it be open to the member who has been charged himself then, as part of his defence, to give evidence of what he has said in the chamber, of what he had done by way of voting and why he had done it? Would it be open to the member therefore to introduce matters which, on their face, would plainly fall within, so it would seem, the speech or debate immunity?

  A. There is some notion of waiver, to the extent that that would be separately litigated, and to the extent that other members' rights and interests might be involved there might be a separate litigation on the extent to which the House as an institution may claim the privilege before the member who would otherwise wish to waive his own immunity could be compelled to testify. So I would think that in that context, before the trial, before the actual testimony was elicited, there might be litigation by other members, or by the House as an institution. Our Congress has a capability, through the office of Legal Counsel, of representing the institutional interests of all the members, not just the member under scrutiny or the member who is actually testifying. So those issues, under our system, I think could be separately litigated as to the rights of other members and the House as an institution serving a speech or debate protection, before that particular member chooses to waive his own protection.

Mr Michie

  895. Would that be debated and voted on in the House?

  A. Not necessarily. It could be raised as a question of the privileges of the House, by a Leader offering a resolution that would authorise the House Counsel to take a certain position in the litigation. Or under our rules there is the existence of a Legal Advisory Committee consisting of the Speaker, the majority and minority Leaders and the majority and minority Whips—five members—who in turn have utilised a new permanent office of House Counsel (who incidentally have prepared the written information which I have presented to you). They could be called upon to develop an institutional brief by the Legal Advisory Committee, without necessarily having authority of the full House, but any Leader could go to the full House and either restrict or expand the ability of the Legal Advisory Committee to present a brief on behalf of the House.

Lord Wigoder

  896. If there were an allegation of bribery against a member where it was so patently clear that the speech or debate privilege applied, and that therefore it was not appropriate for the criminal courts to deal with it, could the House itself deal with it? If so, how?

  A. Yes. The House, being only a two-year body in existence, is a very temporary institution. While it has in place a mechanism deriving directly from Article 1 of the Constitution, which says that each House shall punish its members for disorderly behaviour and, with the two-thirds vote, be able to expel a member, the ability of the House to gather information through the ethics process and then to provide a quasi-judicial hearing for the accused member is limited by time over a two-year period, because once the constitutional term of that House ends, it does not necessarily continue as an investigation in the new Congress. Certainly if the member is not elected or resigns, the House would normally not be able to continue the investigation of the former member. If, however, the member is re-elected, the House can, through its Ethics Committee, continue the investigation, but with limited sanctions at its disposal. I mentioned the ultimate sanction of expulsion, but these sanctions are there to protect the ability of the House to continue to function, and to protect the dignity of its deliberations—censure, reprimand (which is a lesser form of censure), a fine, a letter of reproval, disqualification from certain committee proceedings. There is always the question, while a member is in office, can a member be deprived of his ability to vote? There are certain party rules which restrict the ability of an indicted member to proceed in committees. Chairmen and sub-committee chairmen have to step aside, for example, if they are indicted. All these potential sanctions are there in a very temporary sense and primarily to ensure the integrity of the process. As far as the long-term ability of the House to punish one of its members is concerned, the punishment ultimately does not extend beyond expulsion. I have been curious, in the ongoing investigation of Neil Hamilton and other Conservative Members of the last Parliament, that the new Parliament is continuing in some form—Mr Hastings and I discussed this—to look at that activity. We have right now a member from California whose name is Jay Kim, who has pleaded guilty to improper campaign finance disclosure and has pleaded guilty to several misdemeanours to avoid a felony conviction. He is to be sentenced in two weeks by the Federal District Court. The question has been raised, if he resigns, as to what our Ethics Committee's ongoing role, if any, is. Once he is no longer a member the rules of the House really take away the jurisdiction of the Ethics Committee to investigate further. Obviously he cannot be expelled, he cannot be censured, he cannot be reprimanded, because he is no longer a member, but that committee retains, under our rules, the ongoing requirement of filing a report on the case. Can they continue to develop their own body of evidence, as it were, to write a more intelligent report than they would be able to do right now where all they really have is the court record? That is a question with which they are faced. My long-winded answer is basically to suggest the limits of the ability of the House to continue to look at conduct, once the member is no longer a member.

  897. I have one very short supplementary question, my Lord Chairman. The collection of evidence and its presentation would have certain difficulties, but would not be impossible, is that the position?

  A. That is correct. This became very obvious to the House of Representatives during the two-year investigation of Speaker Gingrich. As many of you will have read, he was under investigation on allegations brought by Democratic members of the House as well as outside groups such as Common Cause and others. Those charges were referred to our Ethics Committee in the last Congress. For over a year the committee was very deliberate in going through the step-by-step procedures which are outlined in the Ethics Committee's own rules and in the rules of the House—the time for the respondent to become aware of the charges against him, to collect his own evidence, and then the investigative sub-committee phase of the proceedings. There the Ethics Committee forms itself into a sub-committee (a so-called investigative sub-committee) which gathers the facts. That went on for over a year. By the time that they were about ready to file a report at the end of 1996, the Congress had ended. The new Congress in 1997, with Speaker Gingrich re-elected, began on opening day, a very interesting day, as the Speaker's right to take the oath as Speaker was challenged because these charges were still pending. The House let him be sworn as Speaker but adopted a resolution referring the matter back to the newly constituted Ethics Committee. But a question arose on the constitution of a new committee? There is no automatic continuity. Some of the members of the old committee had resigned, or retired or did not want to serve one day longer. The House put in place just ten hold-over members from the prior committee as a new select committee to continue to look at Speaker Gingrich's conduct, and told them to report within a month. That was the deadline, to report within a month. During that time the committee recommended a combination of sanctions: a so-called reimbursement for the cost of the two-year investigation—a considerable $300,000 reimbursement, they did not call it a fine—and a reprimand, which is unprecedented for a Speaker himself to be reprimanded. That ability to transcend one Congress to the other took special action, but it happened, and so Congress can streamline its investigative procedures if it has to.


  898. Do I understand, Mr Johnson, from something you said earlier, that an individual member can waive protection of the speech or debate clause as far as he is concerned?

  A. I am not certain in my own mind as to the extent to which that can be done in a court of law because of the institutional interests. Even though there might be a waiver by the indicted member, for example, the Congress could step in with an amicus brief or as a party to attempt to restrict the ability of that particular member to waive the privilege.

Lord Mayhew of Twysden

  899. Arising out of that, can I ask you—and forgive me if you feel you have answered this already—whether it is the case that a court will refuse to hear any evidence about the way in which a member of Congress has conducted himself in a speech or debate, construed as it was in Brewster which was actually debating things in committee or on the floor? I appreciate you are not familiar with this case. Indeed, we were not at all familiar with it until we were given it a day or so ago. I am looking at the record of page 11 of the transcript of the judgment in the Supreme Court. The reason for the decision which disallowed privilege seems to be that "When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in" the case of Johnson—no relation, I am sure—"for use of a congressman's influence with the executive branch." So you do not need to go into any evidence about whether the corrupt conduct which was promised was performed or not, because the bribe is a bribe, and that is self-contained and is a criminal offence. On the next page we read that one of the dissenting judges "rests heavily on the fact that the indictment charges the offense as being in part linked to Brewster's action, vote and decision on postage rate legislation." The majority comment, "This is true, of course, but our holding in Johnson precludes any showing of how he acted, voted, or decided." From that it seems to me, as a complete layman, that you are not allowed to give evidence which includes the acceptance of any evidence called in such a case of how the congressman or the senator voted or behaved on the floor or in committee. I was wondering whether that accords with your understanding of the practice or not? If it were the case, it looks as though he cannot waive it even if, in his own defence, he might wish to say, "Well I dispute I took a bribe, and lo and behold, look how I was speaking long before the alleged bribe was ever offered."

  A. I am not sure the court would self-enforce the exclusion. I think that could be separately litigated. As I express these protections as becoming an institutional interest, I should put in context the fact that there has only been a Legal Advisory Committee for the House for the last ten or 15 years, so that the Brewster and Johnson cases preceded any informed institutional ability that the House had separately to litigate the admissibility of that kind of evidence in court. So that in those days—I am just guessing—unless Senator Brewster or Congressman Johnson themselves, or through their attorneys, attempted at an appropriate time to insist upon the inclusion of that evidence, then it might have been admitted. But currently there is institutionally in place a mechanism where either House can come in, whether or not the court takes the initiative or the attorney for the defendant might take the initiative, and separately litigate, in advance of the proffering of those questions, the very issue of whether there is a speech or debate protection. That is the modern way the Congress could act as an institution. Again, I have never been in court to see one of these issues litigated, but I do not view it necessarily as a self-imposed restriction that a federal district judge, for example, would think had been imposed on him by the Constitution. It would have to be called to the court's attention by attorneys for one of the parties or, in an amicus brief, submitted by the House as an institution.

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