Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 900 - 904)



Lord Merlyn-Rees

  900. On a point of elucidation, at the very beginning you used a phrase which I noted, and I am wondering whether I got it right. You said the House "sitting in executive session" or a committee "sitting in executive session".

  A. Meaning a session which is closed to the public. That would be true. I was referring to the Ethics Committee's deliberations as they look at members' official conduct, where their deliberations are, under House rules and under committee rules, closed to the public unless the committee votes by a majority vote to have them open. That was the executive session reference.

  Lord Merlyn-Rees: Thank you.


  901. In this country we have as one of the aspects of parliamentary privilege exclusive cognisance; that is to say, each House has exclusive control over its own procedures. That includes exclusive control over its own precincts. Is that so also with Congress, so that Congress has control over what may happen within the bounds of its site?

  A. I guess I need to know what you mean by the term "precincts". Do you mean matters totally internal to the operations of the House?

  902. No, I meant geographically—the buildings and the surrounding gardens and so forth—precincts in that sense. So that it is entirely a matter for the House to decide what should or should not happen within the precincts of the former Palace of Westminster, the service of legal proceedings or the need to give effect to legislation which is of general application, but which, unless especially applied, is not regarded as applying, for example, to the hours at which liquor may be sold within the Palace of Westminster. Do you have a general principle to that effect?

  A. I would say as a general response that the Congress has chosen to enact as a statutory law a rather wide-ranging body of law governing activity on the Capitol buildings and grounds, for example, so that violations of that law do not come then directly to the House or Senate for discipline or prosecution but rather become separate violations of statutory criminal law, as misdemeanour or relatively minor offences, and then are prosecuted by the local district attorney in the District of Columbia in the federal courts. Congress has basically stepped away from trying to prosecute the physical restrictions and disturbances which occur within its boundaries, although it does in fact constitutionally, as litigated through the Supreme Court, have the inherent ability to hold people outside the House in contempt and, in effect, to confine them for the duration of the session of Congress where the punishment is contemplated as a way of keeping order. If it is punishment to seek some kind of criminal sentencing or a fine, though, the statutory law defers to the court system. Similarly, and more relevant to committee proceedings these days, we have contempt proceedings—witnesses, for example, refusing to testify before committees or disrupting committees—while the House again has the common law, if you will, ability to punish its witnesses who are subpoenaed (again they are under compulsion to testify), there is a statute which makes it a misdemeanour, punishment by a year in prison, I think, a $2,000 fine, for someone who is contemptuous of a committee. That, though, involves several steps. It involves the committee itself, by majority vote, recommending a contempt resolution to the full House. It then involves, as a question of privilege, the House adopting a resolution which certifies that conduct to the appropriate US attorney—who, if the hearing happened to be in the District of Columbia, would be the United States Attorney for the District of Columbia—who would then have the option of reviewing all the facts and bringing them to the attention of a Grand Jury for a potential prosecution. So, in a word, Congress has written law which basically allows it to step away from the punishment end of that type of disruptive conduct and defer to the court system as a matter of statutory law.

  903. Thank you. Those are the only particular matters which I wish to raise with you, unless members have any other comments. If not, may I thank you very much, Mr Johnson, for making yourself available. We have asked you a number of questions which you have said are slightly outside your own expertise. Having already imposed upon you by asking you to join us today, I wonder whether we could impose further. When you receive the transcript of this morning's meeting, I wonder whether it might be possible for you to assist the Committee by, as it were, putting the transcript in front of any appropriate congressional lawyers, for them to add to your answers in any respect which you and they think might help us?

  A. I will be more than happy to do that. The House passed a rule last Congress—you were talking about Hansard (the Congressional Record is our counterpart)—which requires a substantially verbatim transcript. If you insist that my edited remarks remain substantially verbatim, I will honour your rules and traditions. This is anecdotal, as I think you will appreciate. As the procedural adviser to the Speaker, that is basically what I do sitting next to the Speaker daily. When Speaker Gingrich first became Speaker he was not in the chair when his official conduct was attacked by a member on the floor. It involved an alleged book arrangement he had with Rupert Murdoch; he was going to get a $4 million advance for writing a book about his ascendancy to the speakership, his vision for the future. Some Members thought that it was unethical to take such a book advance, and started making floor speeches to that effect. They were ruled out of order on a properly submitted point of order. There was a brand-new member in the chair, and I was advising this new member, who was as nervous as he could be. Then, as the transcript came back, as had been my experience and a prerogative of the Parliamentarians (since we are not partisan, we can make little additions and editorial changes so as not to change the thrust of the Speaker's ruling but perhaps make it more precedentially meaningful) I took the liberty of making a one word change to suggest basically that the Speaker was subject to as high a standard of respect as, if not higher than, any other member, as far as personal references to his ethical behaviour were concerned. I made the change "as high". The next day you would have thought from the Speaker's detractors that I had completely obliterated the Record and had done something inexcusable, because the House had imposed upon itself a new rule of substantially verbatim transcripts. If that is your tradition, I will certainly abide by it, but give me a little grammatical licence.

  904. We shall indeed give you a little grammatical licence. I repeat the assurance that nothing you have said to us today will be either published as evidence or repeated and published in our report, without first getting in touch with you and seeing whether you have any objection.

  A. Thank you very much.

  Chairman: I hope you will enjoy the rest of your stay in this country.

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Prepared 9 April 1999