Subpoenas in the senate

Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They 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; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In Eastland v. U.S. Servicemen’s Fund , the Supreme Court concluded that the Clause acts as a significant barrier to judicial interference in Congress’s exercise of its subpoena power.1 Footnote
421 U.S. 491, 501 (1975) . The case involved a suit filed by a private non-profit organization against the Chairman of a Senate subcommittee seeking the Court to enjoin a congressional subpoena issued to a bank for the non-profit’s account information.2 Footnote
Id. at 494-96 . The subpoena was issued as part of an investigation into alleged “subversive” activities harmful to the U.S. military conducted by the organization.3 Footnote
Id. at 493 . The Court held that because the “power to investigate and to do so through compulsory process plainly” constitutes an “indispensable ingredient of lawmaking,” the Clause made the subpoena “immune from judicial interference.” 4 Footnote
Id. at 501 . Eastland is generally cited for the proposition that the Clause prohibits courts from entertaining pre-enforcement challenges to congressional subpoenas.5 Footnote
See In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987) ( “The Supreme Court has held analogously that the Speech or Debate Clause shields Congressmen from suit to block a Congressional subpoena because making the legislators defendants ‘creates a distraction and forces Members [of Congress] to divert their time, energy, and attention from their legislative tasks to defend the litigation.’” ) (citing Eastland , 421 U.S. at 503 ). As a result, the lawfulness of a subpoena usually may not be challenged until Congress seeks to enforce the subpoena through either a civil action or contempt of Congress.6 Footnote
United States v. Ryan, 402 U.S. 530, 532 (1971) (noting that in the judicial context that “one who seeks to resist the production of desired information [has a] choice between compliance with a trial court’s order to produce_prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal” ); Eastland , 421 U.S. at 515–16 (Marshall, J., concurring). While it is generally true that courts will not interfere in valid congressional attempts to obtain information, especially through the exercise of the subpoena power, Justice Thurgood Marshall’s concurrence in Eastland suggests that the restraint exercised by the courts in deference to the separation of powers is not absolute. Id. at 513–18 (Marshall, J., concurring) (clarifying that the Clause “does not entirely immunize a congressional subpoena from challenge” , but instead requires only that a Member “may not be called upon to defend a subpoena against constitutional objection” ). Justice Marshall thus implied that a challenge to the legitimacy of a subpoena may proceed if it is not directed at Congress or its Members. Id. at 517 . He did not speculate as to what such a case may look like or “who might be the proper parties defendant.” Id.

Footnotes 1 421 U.S. 491, 501 (1975) . 2 Id. at 494-96 . 3 Id. at 493 . 4 Id. at 501 . 5 See In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987) ( “The Supreme Court has held analogously that the Speech or Debate Clause shields Congressmen from suit to block a Congressional subpoena because making the legislators defendants ‘creates a distraction and forces Members [of Congress] to divert their time, energy, and attention from their legislative tasks to defend the litigation.’” ) (citing Eastland , 421 U.S. at 503 ). 6 United States v. Ryan, 402 U.S. 530, 532 (1971) (noting that in the judicial context that “one who seeks to resist the production of desired information [has a] choice between compliance with a trial court’s order to produce_prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal” ); Eastland , 421 U.S. at 515–16 (Marshall, J., concurring). While it is generally true that courts will not interfere in valid congressional attempts to obtain information, especially through the exercise of the subpoena power, Justice Thurgood Marshall’s concurrence in Eastland suggests that the restraint exercised by the courts in deference to the separation of powers is not absolute. Id. at 513–18 (Marshall, J., concurring) (clarifying that the Clause “does not entirely immunize a congressional subpoena from challenge” , but instead requires only that a Member “may not be called upon to defend a subpoena against constitutional objection” ). Justice Marshall thus implied that a challenge to the legitimacy of a subpoena may proceed if it is not directed at Congress or its Members. Id. at 517 . He did not speculate as to what such a case may look like or “who might be the proper parties defendant.” Id.