The Privilege from Arrest Clause

The Senators and Representatives . . . 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 returning from the same . . .

—Michael Stern

Introduction

To ensure that members of Congress are not unduly hindered in the performance of their legislative duties, the Constitution provides them with limited immunity from arrest both during their attendance at and in traveling to and returning from the legislative session. This privilege from arrest, however, does not apply in cases of “Treason, Felony and Breach of the Peace,” which effectively limits the privilege’s scope to the largely obsolete practice of arrest in civil cases.

Historically, the Privilege from Arrest Clause has given rise to two primary questions. First, what types of cases are covered by the exception for treason, felony, and breach of the peace? And second, do legal processes that stop short of physical restraint or incarceration, but nonetheless could interfere with the performance of legislative duties, constitute “arrests?” The generally accepted answer to the first question is that this exception broadly covers all criminal offenses, leaving the privilege applicable only in civil cases. Thomas Jefferson and Justice Joseph Story answered “yes” to the second question, but in the twentieth century, the U.S. Supreme Court suggested that the answer is “no.” As a consequence, the clause has little modern relevance, although courts will often follow the spirit of the clause by adjusting their schedules to avoid unnecessary conflict with a member’s legislative duties.

History Before 1787

In eighteenth-century England, it was not uncommon for defendants to be arrested in civil lawsuits to vindicate private rights, such as actions to collect debts. Members of Parliament long enjoyed a privilege against arrest in these civil cases during the period when Parliament was in session and for a period of time before and after the session to allow their arrival and return. Members also claimed a broad and somewhat ill-defined privilege against other types of legal process, such as subpoenas.¹ These claims were often successful, and the privilege could be extended even to a member’s servants. In time, “it became almost impossible to get any justice out of a member of parliament.”² However, Sir William Blackstone observed that this privilege applied only in civil cases and not to “any crime whatsoever.”³

Arrest in civil cases was also practiced in America during colonial times and into the nineteenth century. Some early state constitutions expressly recognized a privilege from arrest for legislators. For example, the Massachusetts constitution of 1780 provided that a member of the legislature could not be “arrested, or held to bail . . . during his going unto, returning from, or his attending the general assembly.”⁴ The Articles of Confederation similarly provided that “the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.”⁵

The Constitutional Convention

Article V of Charles Pinckney’s draft plan, submitted on May 29, 1787, provided that “Members of both Houses shall in all cases except for Treason[,] Felony[,] or breach of the Peace be free from arrest during their attendance at Congress [and] in going to [and] returning from it.”⁶ This proposal, which closely tracked the similar provision of the Articles of Confederation, attracted little discussion and was ultimately adopted with only minor changes by the Convention. There was no recorded debate about the clause at the ratifying conventions.⁷

Early Commentary and Congressional Practice

During his time as President of the Senate, Thomas Jefferson pointed to the limited scope of the Privilege from Arrest Clause as evidence that the Framers wisely rejected the broad “encroaching character of privilege” that members of Parliament enjoyed.⁸ Jefferson understood the concept of arrest quite broadly. He explained that the privilege against arrest attaches to “all process the disobedience to which is punishable by the attachment of the person.”⁹ A member would even be immune from the enforcement of a subpoena or a jury summons because he “has superior duties to perform” in Congress. Jefferson’s understanding was consistent with Samuel Johnson’s definition of arrest as a “stop or stay.” 10 Likewise, English poet Abraham Fraunce’s defined arrest as “a certain restraint of a man’s person, depriving him of his own will and liberty, and binding it to become obedient to the will of the law” that “may be called the beginning of imprisonment.”

Three decades later, Justice Joseph Story expressed a similar view. He wrote that “all crimes are offenses against the peace.”¹⁰ As a result, he explained, “breach of the peace” would include “all indictable offenses, as well those which are in fact attended with force and violence. . . .” The clause would also privilege against arrest for “constructive breaches of the peace of the government, inasmuch as they violate its good order.” Jefferson and Story both contended that the term “arrest” should be given a broad construction beyond mere physical restraint or incarceration.

Congressional practice in the nineteenth century was to avoid conflicts with judicial process where possible. Still, many members agreed with Jefferson’s and Story’s view that courts could not force them to appear while Congress was in session. In 1846, for example, the House debated whether to give a member permission to comply with a subpoena to testify as a witness in a pending criminal case. Ultimately, the House voted to grant the permission requested, but a number of members agreed with the view expressed by Representative Robert Winthrop that “there was no power in any judicial tribunal in the land to compel the attendance of a member of Congress, for the purpose of giving testimony.”¹¹ Representative John Quincy Adams, however, warned that there was “a very grave question, whether the privileges of the Constitution would save [a member] from arrest for refusal to attend.”¹²

In 1848, the House Judiciary Committee issued a report regarding the case of a member who had been arrested on state criminal charges of bribery. The committee noted that “the question to what extent, if any, a Member of Congress enjoys immunity from arrest under criminal process, State or Federal, was now presented for the first time since the organization of the Government.”¹³ The report concluded that the Privilege from Arrest Clause’s exception for “treason, felony, or breach of the peace” was “intended to embrace the entire range of indictable crimes;” hence, the arrest did not violate any of the rights and privileges of the House.¹⁴

Modern Judicial Precedent and Congressional Practice

The Supreme Court has addressed two principal questions about the Privilege from Arrest Clause: What types of offenses fall within the exception for “treason, felony, or breach of the peace,” and what constitutes an “arrest”?

The answer to the first question is relatively straightforward. Williamson v. United States (1908) held that all criminal offenses are encompassed within the exception—regardless of whether they are felonies at common law or fall within the ordinary definition of breaches of the peace.¹⁵ The Court noted that the “exact” same three categories of offenses appear in the Articles of Confederation and were used throughout the proceedings of the Philadelphia Convention without debate or controversy. This history “demonstrate[s] that these words were then well known as applied to parliamentary privilege, and had a general and well-understood meaning which it was intended they should continue to have.”¹⁶ A review of English legal sources “leave[s] no doubt that the words were used in England for the very purpose of excluding all crimes from the operation of the parliamentary privilege, and therefore to leave that privilege to apply only to prosecutions of a civil nature.”¹⁷ Williamson was consistent with the view of Justice Joseph Story and the report of the House Judiciary Committee in 1878. Williamson is also an example of a type of originalist methodology that involves viewing the Constitution as written in the language of the law and containing technical terms of art that may differ from the ordinary meaning of those words.

The second question has been somewhat more controversial. The Supreme Court’s approach to this second question departed from the views of Jefferson and Story. Long v. Ansell (1934) suggests that “arrest” was limited to physical restraint or incarceration.¹⁸ In this case, Senator Huey Long of Louisiana was issued a summons in a civil action for libel. The Court held that the privilege did not block enforcement of the summons.

In a brief opinion, Justice Louis Brandeis rejected the argument that the privilege prohibited service of process, even though the refusal to comply with the summons could result in contempt and even incarceration. Rather, Justice Brandeis found that the language of the clause is “exact” and “leaves no room for a construction which would extend the privilege beyond the terms of the grant.” The Court concluded that “[h]istory confirms the conclusion that the immunity is limited to arrest.”

Justice Brandeis did not even cite the views of Jefferson and Story. In fact, Long arguably undermined Jefferson’s and Story’s position, although practice in the House suggests otherwise.¹⁹ In 1941, Representative Hamilton Fish III of New York was issued a subpoena to testify before a federal grand jury. The subpoena also restricted his movement: He could “not depart the court without leave of the court or district attorney,” even while Congress was in session. Had the member disregarded those instructions, he could have been held in contempt of court and incarcerated.

The majority of the House Judiciary Committee contended that the subpoena constituted an outside interference with the right of members to attend legislative proceedings during the session. This conclusion was bolstered by the separation of powers: An Article I member of Congress was unable to attend a session of Congress without permission from an Article II prosecutor or an Article III judge. Other members disagreed with this view. Representative Estes Kefauver of Tennessee led a group who argued that a violation of the clause would occur only “when action is taken to forcibly enforce the attendance in court of the Member.” According to Kefauver, the text of the subpoena did not violate the clause, but enforcement of the subpoena could trigger the privilege against arrest.

Nevertheless, almost all members agreed that a court could not force a member to testify or otherwise absent himself while the House was in session, except in cases where the member himself was charged with a criminal offense. One member suggested that such judicial process would conflict with the House’s own constitutional authority to “compel the attendance of absent members.” (See Essay No. 25.)

Three decades later, the Supreme Court reaffirmed Long in Gravel v. United States (1972).²⁰ The Court observed that “freedom from arrest [does not] confer immunity on a Member . . . as a witness in a criminal case.” As a result, it is generally thought that the clause does not provide a privilege against testimonial subpoenas in criminal cases, and probably not in civil cases either.

As a practical matter, members will rarely need to rely on the Privilege from Arrest Clause for ordinary judicial process. Courts will normally adjust dates for responding to subpoenas or other process to ensure that there is no interference with legislative duties. Federal courts have also recognized as a matter of comity and judicial policy that high-ranking government officials, including members of Congress, should not be compelled to appear as witnesses unless their testimony is essential and the same information cannot be obtained elsewhere.²¹

Open Questions

• Members of Congress are exempted from jury duty by statute, regardless of whether Congress is in session.²² What is the constitutional basis of this statute? Is this legislation to enforce the Privilege from Arrest Clause? Long and Gravel suggested that the privilege would not extend to a jury duty summons.
• Would the Privilege from Arrest Clause immunize a member from arrest who refused to testify in a criminal case as a material witness?²³
• Some constitutional scholars have argued that the broader view of “arrest” held by Jefferson and Story squares with the purpose and function of the Privilege from Arrest Clause better than the narrow reading given to that term by the Supreme Court.²⁴

1. Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 122–24 (2007). ↩︎
2. F.W. Maitland, The Constitutional History of England 244 (1963); Chafetz, supra at 111–33. ↩︎
3. 1 Blackstone 166; Williamson v. United States, 207 U.S. 425, 440 (1908). ↩︎
4. Mass. Const. of 1780, pt. II, ch. I, § 3, art. X; N.H. Const. of 1784, pt. II, ¶ II. ↩︎
5. Articles of Confederation, art. V, § 5. ↩︎
6. 3 Farrand’s 597. ↩︎
7. Chafetz, supra at 135. ↩︎
8. Constitution, Jefferson’s Manual, and Rules of the House of Representatives § 288. ↩︎
9. Id. at § 290. ↩︎
10. 2 Story’s Commentaries § 862. ↩︎
11. Cong. Globe, 29th Cong., 1st Sess., 767 (1846); 3 Hinds’ Precedents, § 2660; id. at § 2666. ↩︎
12. Cong. Globe, supra at 769. ↩︎
13. 3 Hinds’ Precedents, § 2673. ↩︎
14. Id. ↩︎
15. 207 U.S. 425 (1908). ↩︎
16. Id. at 438. ↩︎
17. Id. ↩︎
18. 293 U.S. 76 (1934). ↩︎
19. 87 Cong. Rec. 8934, 8949–58 (1941); 2 Deschler’s Precedents, ch. 7, § 18.1. ↩︎
20. 408 U.S. 606 (1972). ↩︎
21. In re Graham, 621 F.Supp.3d 1324, 1323–25 (N.D. Ga. 2022). ↩︎
22. 2 U.S.C. § 30a. ↩︎
23. 18 U.S.C. § 3144. ↩︎
24. Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 708, 711–13 & n.44 (1995). ↩︎