Arrest and Immunity of Members Of Congress

The framers of the Constitution recognized the fundamental necessity of protecting members of Congress from arbitrary arrest. Article I, section 6 provides that members “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.” That clause also extended to members' immunity against being “questioned in any other Place” for “Speech or Debate in either House.”

Today the provision of this clause protecting members against arrest is virtually obsolete. It was intended to apply only to arrests in civil suits, a practice common in the late eighteenth century, but no longer followed. The clause does not protect members against service of process in either civil or criminal cases, in the latter instance because of members' lack of privilege in cases involving “treason, felony and breach of the peace.”

Members enjoy immunity from legal action resulting from the pursuit of legitimate legislative activity. In Gravel v. United States (1972) and Doe v. McMillan (1973) the Supreme Court sharply defined this activity (see Speech or Debate Clause) to exclude protection from liability for publication of defamatory or national security classified materials outside the halls of Congress. In United States v. Brewster (1972) the Court decided that the clause offered no protection to members charged with taking a bribe, for the subject of the action is the bribe, rather than the legislative objective the bribe was intended to promote.

See also Separation of Powers.

— Richard A. Baker