In re: Sealed Case (PUBLIC REISSUED OPINION)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2023 Decided September 5, 2023

Reissued September 13, 2023

No. 23-3001

IN RE: SEALED CASE

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-sc-02144)

John P. Rowley, III argued the cause for appellant. With

him on the briefs were John S. Irving, Stan M. Brand, and

Stanley E. Woodward, Jr.

John M. Pellettieri, Assistant Special Counsel, U.S.

Department of Justice, argued the cause for appellee. With him

on the brief were J.P. Cooney, Deputy Special Counsel, and

Raymond N. Hulser, Counselor to the Special Counsel.

Before: HENDERSON, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

Concurring opinion filed by Circuit Judge KATSAS.

RAO, Circuit Judge: This case concerns the application of

the Speech or Debate Clause privilege to the contents of

2

Representative Scott Perry’s cell phone, which was seized by

the Federal Bureau of Investigation pursuant to a warrant. In a

district court motion, Representative Perry argued the Clause

bars the government from reviewing many of the messages

stored on the phone. As to communications with Executive

Branch officials and parties outside of Congress,

Representative Perry argues that his messages are necessarily

privileged because they constitute “informal factfinding”—a

capacious category he asserts is always privileged and includes

a Member’s attempts to obtain information related to topics of

upcoming votes without express House authorization.

We disagree. Because at least some informal factfinding is

unprotected under our caselaw, Representative Perry’s

categorical rule fails. Under Supreme Court and circuit

precedent, the proper inquiry is fact-specific and considers

whether the act is “legislative,” i.e., “an integral part of the

deliberative and communicative processes by which Members

participate in committee and House proceedings with respect

to the consideration and passage or rejection of proposed

legislation or with respect to other matters which the

Constitution places within the jurisdiction of either House.”

Gravel v. United States, 408 U.S. 606, 625 (1972).

Some acts of informal factfinding, however, might satisfy

the Gravel test, and so we reject the district court’s categorical

holding that such acts are never legislative acts subject to the

privilege. With respect to Representative Perry’s

communications with Executive Branch officials and others

outside of Congress, we remand for the district court to apply

the Gravel standard on a communication-by-communication

basis.

As to Representative Perry’s communications with

Members of Congress and congressional staff, we affirm in

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large measure. The district court, however, incorrectly

withheld the privilege from communications between

Representative Perry and other Members about the 2020

election certification vote and a vote on proposed election

reform legislation. These are quintessential legislative acts

entitled to the privilege, and we vacate the district court’s

judgment with respect to those communications and remand.

I.

Scott Perry represents Pennsylvania’s 10th Congressional

District in the House of Representatives. After the 2020

presidential election, Representative Perry used his personal

cell phone to send and receive communications concerning

allegations of fraud in that election. Some of these

communications were with fellow Members of Congress or

with congressional staff. Representative Perry also

communicated with members of the Executive Branch and with

individuals outside the federal government. He sent and

received many of these communications before the House

voted on whether to certify the electoral votes from the 2020

election. See U.S. CONST. amend. XII (directing that “the

President of the Senate shall, in the presence of the Senate and

House of Representatives, open all the [Electors’] certificates

and the votes shall then be counted”); Electoral Count Act of

1887, ch. 90, 24 Stat. 373 (codified as amended at 3 U.S.C.

§ 15) (providing procedures for the congressional certification

vote). Other communications occurred with respect to a vote

on proposed legislation to alter election procedures. For the

People Act of 2021, H.R. 1, 117th Cong.

In August 2022, a magistrate judge of the Middle District

of Pennsylvania issued a search warrant authorizing the FBI to

seize Representative Perry’s phone and create a forensic copy

of its contents. After executing the warrant, the FBI sought a

4

separate search warrant from the District Court for the District

of Columbia to review the forensic copy. The court granted the

warrant, with the proviso that Representative Perry would have

an opportunity to assert any claims of privilege under the

Speech or Debate Clause before the government could review

the phone’s contents. For this procedure, the district court

relied on United States v. Rayburn House Office Building,

which held the Executive Branch must “afford[] [a]

Congressman an opportunity to assert the [Speech or Debate]

privilege” before reviewing materials that likely contain

privileged items. See 497 F.3d 654, 663 (D.C. Cir. 2007).

Representative Perry filed a “Motion for Nondisclosure”

in district court, arguing 2,219 communications were

privileged from disclosure under the Speech or Debate Clause.

He contended that the Clause protects Members’ efforts at

informal factfinding. In his view, a Member’s attempts to

gather information related to upcoming votes are always

privileged legislative acts because investigation is essential to

the wise exercise of the legislative power.

Following an in camera review of the contested records,

the district court ordered Representative Perry to disclose all

but 164 of them. 1 In re Search of Forensic Copy of Cell Phone

of Representative Scott Perry (“In re Search”), No. 1:22-sc-

02144, slip op. at 51 (D.D.C. Dec. 28, 2022). The court held

informal factfinding is never a legislative act and therefore

these communications are outside the Clause’s scope. The

court based this conclusion on the principle that formal

factfinding—i.e., investigation pursuant to official

1

The communications remain under seal, as do some of the district

court proceedings. This opinion cites only to the unsealed portions

of the record, and it cites only to parts of the parties’ briefs that do

not concern sealed material.

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authorization of a House of Congress—is protected under the

Clause. The court inferred the privilege does not attach to

factfinding in the absence of such official authorization. Id. at

21.

The court sorted the communications into three categories.

As to category (1), Representative Perry’s communications

with individuals outside the federal government, the district

court concluded these communications were not privileged

because they were informal factfinding. Id. at 28–39. As to

category (2), Representative Perry’s communications with

other Members of Congress and with congressional staff, the

district court held some of these communications were

privileged legislative acts, while others were too far removed

from the legislative process. Id. at 39–46. As to category (3),

Representative Perry’s communications with members of the

Executive Branch, the district court held none of these

communications were privileged because they were “political”

or not factfinding at all. Id. at 48–51.

We stayed the district court’s order pending appeal and

expedited the case. Our review is de novo. See Ass’n of Am.

Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1032

(D.C. Cir. 2022).

II.

At the outset, the government maintains we lack

jurisdiction over this appeal because orders requiring the

disclosure of documents or records are ordinarily not

immediately appealable. The subject of a disclosure order must

usually “refuse to comply and litigate [disclosure] questions in

the event that contempt or similar proceedings are brought

against him”; he may then appeal any resulting contempt order.

Gov’t Br. 15–16 (quoting United States v. Ryan, 402 U.S. 530,

532 (1971)). The government argues this rule applies here, so

6

that Representative Perry’s only route to appellate review is to

incur contempt and appeal from that order. We disagree.

Under our precedent, the district court’s partial denial of

Representative Perry’s nondisclosure motion is an immediately

appealable collateral order. The collateral order doctrine treats

some decisions as “final” even if they do not terminate the case.

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–46

(1949); 28 U.S.C. § 1291 (providing jurisdiction in the courts

of appeals over “final decisions”). This is a “small category,”

and it “includes only decisions that are conclusive, that resolve

important questions separate from the merits, and that are

effectively unreviewable on appeal from the final judgment in

the underlying action.” Swint v. Chambers Cnty. Comm’n, 514

U.S. 35, 42 (1995).

This court has applied the collateral order doctrine in

Speech or Debate cases involving the protection of Members’

documents. In Rayburn, we held a district court’s denial of a

“[c]ongressman’s motion for return of … seized materials” on

Speech or Debate grounds was a collateral order. 497 F.3d at

657–59. And in In re Grand Jury Subpoenas, we reached the

same conclusion with respect to the district court’s denial of a

motion to quash a subpoena on Speech or Debate grounds. 571

F.3d 1200, 1201–02 (D.C. Cir. 2009). Here, a Member of

Congress asserted the Speech or Debate privilege by way of an

evidentiary motion in district court, asserting that the Executive

was wrongfully attempting to review privileged documents.

The district court partially denied the motion. That is an

immediately appealable collateral order under a

straightforward application of Rayburn and In re Grand Jury

Subpoenas.

The government contends we lack jurisdiction because of

Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). In

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Mohawk, the Supreme Court held a district court’s disclosure

order is not immediately appealable even when the attorney-

client privilege is at stake. Id. at 103. Yet the Court reserved

judgment on whether the denial of a governmental privilege

should be treated the same as a private privilege, “express[ing]

no view” on whether “collateral order appeals should be

available for rulings involving certain governmental privileges

in light of their structural constitutional grounding under the

separation of powers, relatively rare invocation, and unique

importance to governmental functions.” Id. at 113 n.4 (cleaned

up).

The Speech or Debate privilege concerns the separation of

powers; it is rarely invoked; and it is uniquely important to the

fulfillment of governmental functions. See United States v.

Johnson, 383 U.S. 169, 179 (1966). By recognizing the unique

status of governmental privileges, Mohawk left our precedent

untouched. Following Rayburn and In re Grand Jury

Subpoenas, the denial of a claim of Speech or Debate Clause

privilege over documents is an immediately appealable

collateral order, and so we have jurisdiction over

Representative Perry’s appeal. 2

III.

Representative Perry invokes the Speech or Debate Clause

to protect over two thousand documents and communications

on his cell phone against disclosure to the Executive Branch.

To evaluate his claims, we begin by setting forth our well-

2

Representative Perry also argues that, even without the collateral

order doctrine, the district court’s order was final because it “end[ed]

the litigation on the merits and le[ft] nothing for the court to do but

execute the judgment.” Catlin v. United States, 324 U.S. 229, 233

(1945). Because we have jurisdiction under the collateral order

doctrine, we do not address this alternative argument.

8

established framework for considering whether a particular

matter comes within the Clause’s coverage.

A.

The Speech or Debate Clause provides that “for any

Speech or Debate in either House, [Senators and

Representatives] shall not be questioned in any other Place.”

U.S. CONST. art. I, § 6, cl. 1. In the Constitution’s careful

separation of powers, the Clause serves to safeguard the

independence of Congress, “prevent[ing] intimidation of

legislators by the Executive and accountability before a

possibly hostile judiciary.” Gravel, 408 U.S. at 617. The Clause

is “one manifestation of the [Constitution’s] ‘practical security’

for ensuring the independence of the legislature.” Johnson, 383

U.S. at 179 (quoting THE FEDERALIST NO. 48, at 332 (James

Madison) (Jacob E. Cooke ed., 1961)); see also 2 JOSEPH

STORY, COMMENTARIES ON THE CONSTITUTION § 863 (1st ed.

1833) (calling the privilege a “great and vital” one, “without

which all other privileges would be comparatively

unimportant, or ineffectual”).

While the privilege’s core is speech and debate in either

House, it has long been recognized to reach other acts within

legislative proceedings. 3 In 1808, the Supreme Judicial Court

3

The Clause mirrors the language of the English parliamentary

privilege, and that history has at times been relevant for

understanding the Clause but within the context of Congress’s

limited legislative powers. See, e.g., 2 STORY, COMMENTARIES

§ 863 (explaining the American “privilege … is derived from the

practice of the British parliament” but acknowledging “important

distinction[s] arising from the actual differences between English

and American legislation”); Kilbourn v. Thompson, 103 U.S. 168,

201 (1881) (“[W]hile the framers of the Constitution did not adopt

the lex et consuetudo of the English Parliament as a whole, they did

9

of Massachusetts, interpreting a nearly identical legislative

privilege in that state’s constitution, refused to “confine [the

privilege] to delivering an opinion, uttering a speech, or

haranguing in debate,” and instead extended it to voting,

making written reports, and “to every other act resulting from

the nature, and in the execution, of the office.” Coffin v. Coffin,

4 Mass. (3 Tyng) 1, 27 (1808). The Supreme Court

subsequently called Coffin “perhaps … the most authoritative

case in this country on the construction of the [Speech or

Debate Clause] in regard to freedom of debate in legislative

bodies,” noting it was decided “early after the formation of the

Constitution of the United States.” Kilbourn v. Thompson, 103

U.S. 168, 204 (1881). And when the Supreme Court considered

the Clause’s reach for the first time, it followed Coffin, holding

the Clause went beyond “words spoken in debate” to include

written reports and resolutions, voting, and other “things

generally done in a session of the House by one of its members

in relation to the business before it.” Id.

While the Clause covers more than literal speech and

debate, its reach has always been confined to legislative acts

undertaken within the legislative process. Thomas Jefferson

commented the privilege “is restrained to things done in the

House in a Parliamentary course” and does not attach “contra

morem parliamentarium [against parliamentary custom], to

exceed the bounds and limits of [a Member’s] place and duty.”

1 THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY

PRACTICE 23–24 (2d ed. 1812) (italics added). Joseph Story

similarly stated the privilege “is strictly confined to things done

in the course of parliamentary proceedings, and does not cover

incorporate such parts of it, and with it such privileges of Parliament,

as they thought proper to be applied to the two Houses of

Congress.”); Johnson, 383 U.S. at 180–83 (discussing English

history and the Clause’s purposes).

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things done beyond the place and limits of duty.” 2 STORY,

COMMENTARIES § 863; see also Hutchinson v. Proxmire, 443

U.S. 111, 126 (1979) (quoting this passage with approval).

In adjudicating the scope of the privilege, courts have

consistently recognized both the privilege’s importance for

congressional independence and the limits of the privilege to

acts within the legislative sphere. For instance, the Coffin court

emphasized the privilege attaches only to a legislator’s words

or acts made “in the character of a representative” and while

“executing the duties of his office.” 4 Mass. at 29–31. In

Johnson, the Court explained the privilege “will be read

broadly to effectuate its purposes,” but limited the Clause’s

protection to barring a conspiracy charge insofar as it was

based on a Member’s speech, while allowing the prosecution

to proceed for matters unrelated to the speech. 383 U.S. at 172,

180, 185. And in United States v. Brewster, the Court

maintained it would not be “wise, simply out of an abundance

of caution to doubly insure legislative independence, to extend

the privilege beyond its intended scope, its literal language, and

its history, to include all things in any way related to the

legislative process.” 408 U.S. 501, 516 (1972) (emphasis

added).

The Supreme Court synthesized the Clause’s history in a

pair of cases that set forth the modern test for what types of

“legislative acts” beyond pure speech and debate are privileged

under the Clause. In Brewster, the Court noted “[a] legislative

act has consistently been defined as an act generally done in

Congress in relation to the business before it” and that not all

“conduct related to the due functioning of the legislative

process” is automatically privileged. Id. at 512, 513–14

(cleaned up). And in Gravel, the Court further clarified:

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Legislative acts are not all-encompassing. The

heart of the Clause is speech or debate in either

House. Insofar as the Clause is construed to

reach other matters, they must be an integral

part of the deliberative and communicative

processes by which Members participate in

committee and House proceedings [1] with

respect to the consideration and passage or

rejection of proposed legislation or [2] with

respect to other matters which the Constitution

places within the jurisdiction of either House.

408 U.S. at 625.

The Court’s subsequent cases leave no doubt: Gravel sets

forth the criterion for assessing the reach of the Speech or

Debate privilege. In Doe v. McMillan, the Court held the

privilege did not apply to acts that were “not an essential part

of the legislative process and [were] not part of that deliberative

process ‘by which Members participate in committee and

House proceedings.’” 412 U.S. 306, 315 (1973) (quoting

Gravel, 408 U.S. at 625). There, the Member maintained the

privilege should attach to acts that served legislative functions,

but that argument was unavailing because the acts were not

“legislative” within the meaning of Gravel. Id. at 313–14. In

Eastland v. United States Servicemen’s Fund, the Court

“specifically” made clear that the judicial task is to “determine

whether the [contested] activities are” within Gravel’s

definition of “legislative acts.” 421 U.S. 491, 504 (1975). In

Hutchinson, the Court quoted Gravel at length and similarly

described its formulation as the controlling “definition of the

scope of the Clause.” 443 U.S. at 126–27; see also United

States v. Helstoski, 442 U.S. 477, 492 (1979) (citing Gravel

favorably).

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When evaluating whether something is a “legislative act”

within the meaning of Gravel, the Court will often consider

whether protection of the privilege is “necessary to preserve the

integrity of the legislative process,” Brewster, 408 U.S. at 517;

whether the “independence” of the legislature is at stake,

Eastland, 421 U.S. at 511; and whether the actions at issue are

things “generally done in the course of the process of enacting

legislation,” Hutchinson, 443 U.S. at 131 (citing Kilbourn, 103

U.S. at 204) (cleaned up). These considerations are important

for understanding the scope of the Speech or Debate Clause,

and they help to flesh out the application of the Gravel criteria

to specific facts.

The Clause’s coverage for legislative acts is further

delineated by what is not privileged. The Supreme Court has

repeatedly emphasized that Members may engage in a variety

of legitimate actions within the duties of their office without

triggering the privilege. For instance, “legitimate activities [of

a] political … nature,” such as “‘errands’ performed for

constituents, the making of appointments with Government

agencies, assistance in securing Government contracts, … and

speeches delivered outside the Congress” are not necessarily

privileged. Brewster, 408 U.S. at 512. The act of sending

political newsletters to constituents is not privileged.

Hutchinson, 443 U.S. at 130. And “cajol[ing] … and

exhort[ing]” members of the Executive Branch “with respect

to the administration of a federal statute … is not protected

legislative activity.” Gravel, 408 U.S. at 625. While such acts

are all in a day’s work for a Member of Congress, they are not

privileged under the Speech or Debate Clause.

These decisions highlight that “there is a difference

between actions taken by legislators, however frequently, and

legislative activity protected by the immunity of the Speech or

Debate Clause.” McSurely v. McClellan, 553 F.2d 1277, 1286

13

n.28 (D.C. Cir. 1976) (en banc) (majority opinion). 4 The

privilege does not turn on whether an action is in some general

sense “official”; rather, it turns on whether it is a legislative act

within the scope of Gravel. As we have explained, “[b]eyond

actual speech or debate, an act is considered ‘legislative’ only

if” it falls within one of Gravel’s two categories. Massie v.

Pelosi, 72 F.4th 319, 322 (D.C. Cir. 2023) (emphasis added);

see also, e.g., McCarthy v. Pelosi, 5 F.4th 34, 39 (D.C. Cir.

2021); United States v. Rostenkowski, 59 F.3d 1291, 1302

(D.C. Cir. 1995). And unlike executive privilege, which may

extend to “the outer perimeter of … official duties,” Chastain

v. Sundquist, 833 F.2d 311, 315 (D.C. Cir. 1987), the

“Clause … does not protect acts that are not legislative in

nature, even if they are performed in a Member’s official

capacity,” United States v. Rose, 28 F.3d 181, 187 (D.C. Cir.

1994) (cleaned up); see also Fields v. Office of Eddie Bernice

Johnson, 459 F.3d 1, 12–13 (D.C. Cir. 2006) (en banc)

(plurality opinion) (distinguishing executive and legislative

privileges and explaining “[i]t is not enough that a Member’s

conduct is within the outer perimeter of the legislative

process”).

Across a wide variety of factual circumstances, the

Supreme Court and this circuit have faithfully applied the

Gravel test and the principles animating it to determine

whether an act is legislative and therefore privileged under the

Speech or Debate Clause.

B.

If a Member’s act qualifies as legislative under Gravel, the

privilege applies and the Clause confers three “absolute”

4

Unless otherwise noted, we cite to the McSurely majority opinion,

not the short per curiam opinion that preceded it.

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protections. See Eastland, 421 U.S. at 509. First, the privilege

includes immunity from suit—a Member may not be sued or

prosecuted for his legislative acts. Id. at 502. Second, the

privilege includes an evidentiary privilege—legislative acts

may not be introduced into evidence even when the

government seeks to punish a Member for non-legislative acts.

Johnson, 383 U.S. at 176–77. Third, the privilege encompasses

a testimonial privilege not to “be questioned in any other

Place.” U.S. CONST. art. I, § 6, cl. 1. This means that only

Congress, not the Executive or Judiciary, may force a Member

to testify about legislative acts. Gravel, 408 U.S. at 616.

Legislative acts receive these protections regardless of the

Member’s subjective motives. See Tenney v. Brandhove, 341

U.S. 367, 377 (1951) (“[I]t [i]s not consonant with our scheme

of government for a court to inquire into the motives of

legislators.”).

In addition, this court also recognizes that one aspect of

the testimonial privilege is a limited protection against the

compelled disclosure of documents. In Brown & Williamson

Tobacco Corp. v. Williams, we explained the “testimonial

immunity of the Speech or Debate Clause” applies beyond the

direct questioning of Members because “[d]ocumentary

evidence can certainly be as revealing as oral

communications.” 62 F.3d 408, 420 (D.C. Cir. 1995); see also

MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856

(D.C. Cir. 1988). Just as the other branches may not compel

verbal testimony concerning legislative acts, they may not

force Members to hand over documentary evidence of those

acts. See United States v. Hubbell, 530 U.S. 27, 40 (2000)

(While “compelled testimony … is not to be found in the

contents of the documents produced in response to [a]

subpoena,” compelled testimony is often “inherent in the act of

producing those documents.”) (cleaned up). Similarly, a private

litigant “is no more entitled to compel [the]

15

congressional … production of documents … than it is to sue

congressmen.” Brown & Williamson, 62 F.3d at 421.

In Rayburn, we applied these cases to an extraordinary

circumstance, the Executive’s search of a Representative’s

House office pursuant to a warrant. 497 F.3d at 663 (remarking

that “[t]he historical record [is] utterly devoid of Executive

searches of congressional offices”). Given the location of the

search, we assumed it “must have resulted in the disclosure of

legislative materials to agents of the Executive,” and we noted

that such a broad disclosure would violate the Clause’s

testimonial privilege. Id. at 661. But we also reiterated that the

Clause “protects against the compelled disclosure of privileged

documents … but not the disclosure of non-privileged

materials.” Id. at 664. We explained the Representative must

be given some opportunity to assert the privilege in court

before the Executive could view the documents. Id. at 662–63.

It is this testimonial protection that Representative Perry

invokes over the communications and materials on his cell

phone.

IV.

Representative Perry claims the Speech or Debate Clause

privilege protects many of the communications on his cell

phone. With respect to communications with individuals

outside the federal government and with Executive Branch

officials, categories (1) and (3) of the district court’s analysis,

Representative Perry argues these are privileged because they

constitute informal factfinding. 5 This category is somewhat

5

Representative Perry’s claim for privilege with respect to category

(2), his communications with other Members of Congress and

congressional staffers, does not hinge on his informal factfinding

arguments, and we consider these communications in Part V.

16

capacious and not clearly delineated, but Representative

Perry’s definition seems to be: a Member’s individual efforts

to obtain information related to an upcoming vote in the

absence of formal House or committee authorization. See, e.g.,

Perry Br. 11 (framing the case as concerning “the fact-

gathering communications that Rep. Perry conducted, as a

Member of Congress, to inform his legislative actions”); id. at

17 (“[L]egislative acts include formal and informal fact-

finding, and efforts to help inform consideration of an

upcoming vote.”) (cleaned up); id. at 32 (“Each of th[e]

communications should be viewed … in the context of Rep.

Perry’s efforts to seek information that was closely tied to his

official responsibilities.”). Representative Perry maintains that

anything constituting informal factfinding is a legislative act

protected by the Clause—that such matters are categorically

privileged from disclosure. The district court resolved this

categorical argument with a categorical holding that informal

factfinding is never protected by the Clause. See In re Search,

slip op. at 21. The government defends the district court’s

categorical holding. 6 See Gov’t Br. 41–47.

6

The government also argues we need not review the district court’s

privilege determinations at all. First, the government asks us to limit

Rayburn to searches of physical offices, as opposed to Members’ cell

phones. Rayburn, however, explained that the privilege applies

whenever the Executive Branch searches “a location where

legislative materials [a]re inevitably to be found.” 497 F.3d at 661.

A Member’s cell phone is realistically such a location. Cf. Riley v.

California, 573 U.S. 373, 386 (2014) (“Cell phones … place vast

quantities of personal information literally in the hands of

individuals.”).

Second, the government contends Rayburn guarantees

Representative Perry only the opportunity to assert the privilege in

district court, with no right to appeal, because Rayburn is merely a

procedural case holding that a district court must conduct one layer

17

The problem with this litigating posture, however, is that

Representative Perry considers a variety of actions to constitute

so-called informal factfinding, and under our precedents not all

of these actions are legislative acts. Because not everything

included in this novel category satisfies the test articulated in

Gravel, the category does not settle the question of whether the

communications are privileged. Rather, a given act is

legislative if it is an “integral part of” relevant House or

committee “proceedings.” Gravel, 408 U.S. at 625. It is

possible that some communications within the informal

factfinding category could be privileged, and therefore we

disagree with the district court’s holding that informal

factfinding is never a legislative act. But we also reject

Representative Perry’s proposition that informal factfinding is

always a legislative act.

In assessing whether the privilege applies, the Supreme

Court and this circuit undertake a fact-specific inquiry under

Gravel. Because the district court is better positioned to apply

the correct fact-specific inquiry in the first instance, we vacate

and remand this part of the order.

of review before disclosure to the Executive. The government’s

somewhat baffling view is that once this single layer of review is

complete, right or wrong, there is nothing more for an appellate court

to do. This argument mistakenly treats Rayburn’s nondisclosure

protection as a prophylactic rule rather than a constitutional

privilege. If a communication is privileged and within Rayburn’s

scope, the Executive Branch violates the Speech or Debate Clause

by viewing it. And if the collateral order doctrine provides

jurisdiction, as it does here, we must exercise that jurisdiction. See

Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)

(“Federal courts … have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which is not given.”)

(cleaned up).

18

A.

In holding that informal factfinding is categorically not

privileged, the district court relies primarily on Eastland and

McSurely. These cases, however, do not establish a categorical

privilege rule for formal (i.e., congressionally authorized)

factfinding, much less for informal factfinding. Rather, these

cases simply apply Gravel and established legal principles to

determine whether some actions taken pursuant to formally

authorized investigations are legislative and therefore

privileged.

For instance, in Eastland, the Supreme Court held the

privilege attached to the issuance of a subpoena by a

subcommittee acting pursuant to a Senate authorized national

security investigation. 421 U.S. at 503–07. The subpoena

sought the bank records of a non-profit organization, and the

organization sued the subcommittee’s chairman, other

senators, and a subcommittee attorney, seeking injunctive and

declaratory relief. Id. at 494–95. The Court began by

considering whether the subpoena was “within the legitimate

legislative sphere” and whether the acts “took place ‘in a

session of the House by one of its members in relation to the

business before it.’” Id. at 503 (cleaned up) (quoting Kilbourn,

103 U.S. at 204). The Court emphasized that an official

congressional investigation is “essential to legislating” and

covered by the privilege so long as the subcommittee stays

within its “province.” Id. at 507 (cleaned up); see also Trump

v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (explaining

Congress enjoys an investigative power that has defined limits

and “is justified solely as an adjunct to the legislative process”)

(cleaned up). More specifically, the issued subpoena

“concerned a subject on which legislation could be had,” and

the Members’ decision to issue it was consequently “an integral

part of the legislative process” within the scope of Gravel.

19

Eastland, 421 U.S. at 505–06 (cleaned up). In these

circumstances, the issuance of the subpoena was a privileged

legislative act.

The Court has been careful to maintain, however, that not

everything done pursuant to formal authorization is privileged.

For instance, in McMillan, the Court explained that “the fact of

congressional authorization for the questioned act is not

sufficient to insulate the act from judicial scrutiny.” 412 U.S.

at 316 n.10; see also Powell v. McCormack, 395 U.S. 486, 504

(1969) (similar). The Court recognized the “importance of

informing the public about the business of Congress. However,

the question remains whether the act of doing so, simply

because authorized by Congress, must always be considered

‘an integral part of the deliberative and communicative

processes by which Members participate in committee and

House proceedings’ with respect to legislative or other matters

before the House.” McMillan, 412 U.S. at 314 (quoting Gravel,

408 U.S. at 625); see also Eastland, 421 U.S. at 505–07

(following McMillan and Gravel). The relevant inquiry always

reverts to whether an act is legislative under Gravel.

In McSurely, our en banc court considered in detail

whether the “transportation and use of … seized” private

documents “by the chairman of [a] Senate subcommittee and

several members of the subcommittee staff” were covered by

the privilege. 553 F.2d at 1280 (per curiam opinion). We

explained that even if an investigation “fell within the broad

authorization of [a] Senate resolution[,] [that] does not render

everything done by” a subcommittee or one of its

investigators “privileged activity which is essential to

legislating.” Id. at 1295 (majority opinion) (cleaned up).

Rather, in order “[f]or an activity to be considered ‘essential to

legislating’ it must be ‘an integral part of the deliberative and

communicative processes’ dealing with matters within the

20

jurisdiction of Congress.” Id. (quoting Gravel, 408 U.S. at

625). And even authorized factfinding may not be privileged if

it “go[es] beyond the reasonable requirements of the legislative

function.” Id. at 1285 n.27, 1287 (quoting McMillan, 412 U.S.

at 315). In applying these principles, we found that some acts

taken pursuant to the investigation were protected and others

were not. For instance, subcommittee staff were protected

when they inspected “234 photocopies” of seized documents

“within the [s]ubcommittee.” Id. at 1296. The Members were

also protected when they “use[d] … the copies as the basis for

issuance of subpoenas … and … procure[d] … contempt of

Congress citations against [the] plaintiffs.” Id. But one of the

subcommittee’s investigators was not protected when he seized

documents “[c]oncededly [i]rrelevant to [l]egislative

[i]nquiry.” 7 Id. at 1294–95 (majority opinion). In McSurely, the

granular, fact-intensive evaluation resists any categorical rule

that the Speech or Debate Clause privilege turns on formal

authorization for an investigation.

Other decisions similarly confirm the Speech or Debate

privilege does not turn solely on the formality or regularity of

a Member’s act. For example, Coffin held the privilege was

applicable to legislative acts “without inquiring whether the

exercise was regular according to the rules of the house, or

irregular and against their rules.” 4 Mass. at 27 (emphasis

added). And in Brown & Williamson, we noted “[t]he

privilege … permits Congress to conduct investigations and

obtain information without interference from the courts, at

least when these activities are performed in a procedurally

regular fashion.” 62 F.3d at 416 (emphasis added).

7

Five of ten participating judges dissented with respect to these

documents, but they did so on Fourth Amendment grounds. See id.

at 1327–33 (Wilkey, J., dissenting).

21

In light of the reasoning in Eastland, McSurely, and other

cases, we reject the district court’s holding that all informal

factfinding is excluded from protection of the privilege and that

factfinding must have formal authorization before the privilege

may attach. See In re Search, slip op. at 21. An investigation

authorized by the House and within its jurisdiction is an

exercise of congressional power and by definition part of a

legislative proceeding, but formal authorization is neither

necessary nor sufficient for the privilege to attach to the wide

range of activities that could be denominated “investigative” or

“factfinding.” 8 Rather, the Supreme Court and this circuit

consider the specific facts to determine whether a particular

action is a legislative act within the test articulated by Gravel. 9

B.

Representative Perry maintains all instances of informal

factfinding fit within Gravel’s first category: acts that are

“integral part[s] of the deliberative and communicative

processes by which Members participate in committee and

House proceedings with respect to the consideration and

8

When a privilege argument rests on the assertion that a House of

Congress validly exercised its investigative power, the scope of that

investigative power is relevant to the inquiry and the Court considers

whether the investigation concerns “a subject on which legislation

may be had.” Eastland, 421 U.S. at 508. But determining whether

Congress acted within the scope of its investigative power is a

distinct inquiry from whether the privilege attaches under Gravel.

9

Even under this fact-specific evaluation, the district court was

correct that it is “unnecessary and irrelevant” to “assess the sources

of information Rep. Perry chose to use, the significance of that

information to him in how he chose to act, or whether the information

he obtained … amounted to verifiable facts.” In re Search, slip op.

at 30.

22

passage or rejection of proposed legislation.” 10 408 U.S. at 625.

To support his contention, Representative Perry relies on the

importance of Congress’s factfinding or informing function as

an ancillary to its legislative powers. For example,

Representative Perry points to the Court’s emphasis that “the

power to investigate is inherent in the power to make laws

because ‘a legislative body cannot legislate wisely or

effectively in the absence of information respecting the

conditions which the legislation is intended to affect or

change.’” See Eastland, 421 U.S. at 504 (quoting McGrain v.

Daugherty, 273 U.S. 135, 175 (1927)) (cleaned up); see also

McSurely, 553 F.2d at 1286 (“We have no doubt that

information gathering, whether by issuance of subpoenas or

field work by a Senator or his staff, is essential to informed

deliberation over proposed legislation.”). Representative Perry

contends the importance of factfinding to the legislative

process necessarily makes such acts legislative and therefore

privileged.

Informal factfinding is an amorphous category, and

Perry’s briefing is unclear what precisely would be subsumed

within this term. Some instances of informal factfinding might

be privileged, but at least some of the acts Representative Perry

considers to be informal factfinding have been held to be

outside the coverage of the Clause. See McSurely, 553 F.2d at

1285 n.27 (explaining the Supreme Court “has held significant

aspects of ‘the informing function of Congress’ outside of the

10

Representative Perry makes no argument that informal factfinding

categorically fits within Gravel’s second category, acts that are

“integral part[s] of the deliberative and communicative processes by

which Members participate in committee and House

proceedings … with respect to other matters … within the

jurisdiction of either House.” Gravel, 408 U.S. at 625.

23

protection of the Speech or Debate Clause”) (cleaned up). His

categorical claim for the privilege therefore fails.

To begin with, Representative Perry would treat acquiring

information or documents to further legislative deliberations as

always privileged, but this claim is directly at odds with

Gravel. Perry Br. 11, 17. That case concerned a senator who

obtained a copy of the classified Pentagon Papers with the help

of an aide. Gravel, 408 U.S. at 608–10. The Senator read the

Papers into the record and subsequently handed them off to a

private publisher. Id. at 609–10. The Court held the Senator’s

act of reading the Papers into the record was a legislative act,

i.e., actual speech in the Senate, but the act of publishing them

was not. Id. at 615–16, 622, 628–29. Importantly, the Court

held a grand jury could ask the aide “questions relevant to

tracing the source of … documents that came into the Senator’s

possession … as long as no legislative act is implicated by the

questions.” Id. at 628 (emphasis added). This necessarily

entails that the acquisition of documents—a form of informal

factfinding—was not a legislative act. Gravel pokes a

substantial hole in Representative Perry’s privilege category.

Representative Perry also suggests that informal

factfinding includes all “efforts to help inform consideration of

an upcoming vote.” Perry Br. 17. But this claim is inconsistent

with the Supreme Court’s decision in Hutchinson. There, a

Member collected information about the federal government’s

allegedly wasteful expenditures and circulated this information

in a press release and a constituent newsletter. 443 U.S. at 114–

17. The press release called the spending “outrageous” and

urged it was “time we put a stop” to the waste. Id. at 116

(cleaned up). These communications fit within Representative

Perry’s understanding of informal factfinding because the

Court recognized “a Member’s published statements exert

some influence on other votes in the Congress and therefore

24

have a relationship to the legislative and deliberative process.”

Id. at 131 (emphasis added). Nonetheless, the Court held the

privilege inapplicable because “neither the newsletters nor the

press release was essential to the deliberations of the Senate

and neither was part of the deliberative process.” Id. at 130

(emphasis added) (cleaned up). Not all communications that

may influence a vote are privileged; rather, the proper test is

whether such communications are “integral” or “essential” to

deliberations or otherwise satisfy the requirements of Gravel. 11

Finally, Representative Perry suggests his informal

factfinding efforts are legislative acts because these

communications related to his “official” duties and

responsibilities as a Member of Congress “during a time of

uncertainty about the validity of a Presidential election and

under circumstances that neither the nation nor its leaders had

seen before.” Perry Br. 28. The Speech or Debate privilege

undoubtedly “assure[s] a co-equal branch of the government

wide freedom of speech, debate, and deliberation without

intimidation or threats from the Executive Branch.” Gravel,

408 U.S. at 616. But under Gravel, the “Clause … does not

protect acts that are not legislative in nature, even if they are

performed in a Member’s official capacity.” Rose, 28 F.3d at

187 (cleaned up).

Privileged legislative acts are only a subset of the various

activities a Member may undertake as part of his official duties

and responsibilities. The fact that informal factfinding is

consistent with a Member’s official duty to legislate wisely

does not necessarily mean that such acts are privileged. For

11

To the extent Representative Perry also suggests the privilege

extends to any and all factual conversations a Member has with

individuals outside Congress, Perry Br. 29–30, our caselaw offers no

support for that assertion.

25

instance, the Court has held that the following activities are

properly within a Member’s duties, yet not covered by the

privilege: “legitimate activities [of a] political … nature,”

Brewster, 408 U.S. at 512; sending political newsletters to

constituents, Hutchinson, 443 U.S. at 130; and

“cajol[ing] … and exhort[ing]” the Executive Branch, Gravel,

408 U.S. at 625. Representative Perry’s suggestion that all

“official” acts are privileged directly contradicts the rule that

the Clause does not “protect[] all conduct relating to the

legislative process. … [T]he … Clause has been limited to an

act which was clearly a part of the legislative process—the due

functioning of the process.” Brewster, 408 U.S. at 515–16;

accord Brown & Williamson, 62 F.3d at 415.

Informal factfinding encompasses a wide spectrum of acts

that may or may not be related, much less integral, to House

“deliberative and communicative processes.” Gravel, 408 U.S.

at 625. Cases applying the Gravel test to specific acts

demonstrate that informal factfinding has no necessary

connection to the privilege. 12 Not everything under the

informal factfinding umbrella is protected. Representative

Perry’s attempt to shoehorn a novel and broad category into

Gravel would pull the Supreme Court’s doctrinal framework

out of joint.

***

The Supreme Court and this circuit have never suggested

that investigative activities are privileged only if undertaken

pursuant to formal authorization, nor that any activity asserted

to be investigative factfinding is privileged. These categorical

rules are inconsistent with our longstanding precedents and

12

Judge Katsas suggests some narrower category of information

gathering is protected by the Clause. While this possibility is not

foreclosed, we need not resolve it in this case.

26

their reasoning. The labels “formal” and “informal” factfinding

gloss over the appropriate analysis under the Speech or Debate

Clause. It follows from these principles that communications

with individuals outside of Congress may qualify for the

privilege. To determine whether a particular matter or action is

privileged, we must apply the test in Gravel in a manner

consistent with the principles undergirding the Clause. Because

the district court applied the incorrect legal standard, we

remand the privilege determinations over categories (1) and (3)

for the district court to apply Gravel on a communication-by-

communication basis.

V.

We now consider whether the privilege applies to

communications between Representative Perry and other

Members of Congress or congressional staff. The district court

held some of these category (2) communications were

privileged legislative acts and some not. Representative Perry

maintains they are all privileged.

The district court correctly held that communications with

Members and staff about legislation, votes, committee

assignments, and caucus affairs were squarely “legislative

acts” within the meaning of Gravel. In re Search, slip op. at

40–44. Records of these communications are privileged.

The district court also determined that some of

Representative Perry’s intra-congressional communications

were non-legislative. Id. at 43–44. These included electronic

newsletters, insofar as they merely discussed “upcoming

events, political talking points, news articles of interest, and

[non-legislative] events occurring in and around Congress.” Id.

We agree these are too far removed from legislative

proceedings to warrant privilege under the Clause. Not

“everything a Member of Congress may regularly do is … a

27

legislative act within the protection of the Speech or Debate

Clause.” McMillan, 412 U.S. at 313. Although sent by

Members of Congress to other Members, the newsletters did

not concern legislative proceedings or matters integral to those

proceedings, but rather focused on topics outside the

“legislative sphere.” Id. (cleaned up). The subjects of these

communications are akin to political matters not covered by the

privilege. See Brewster, 408 U.S. at 512–13. These newsletters

are also similar to the newsletters and press release the Court

held unprotected in Hutchinson because they were not

“essential to the deliberations of the Senate [nor] part of the

deliberative process.” 443 U.S. at 130 (cleaned up). It follows

that Representative Perry’s discussions with his staff about

press coverage and his media strategy are also not privileged

legislative acts. These strategic discussions are at least as

removed from the deliberative process as the unprivileged

communications in Hutchinson. The government may view

records of these communications.

We disagree, however, with the district court’s

determination that discussions with other Members about

alleged fraud in the 2020 presidential election were non-

legislative. The court described these conversations as “purely

political rather than legislative” and opined that they were “[a]t

best … merely incidental to Rep. Perry’s [upcoming

certification] vote.” In re Search, slip op. at 45–47. The district

court concluded these conversations were “not integral to”

legislative proceedings and were “‘beyond the legitimate

legislative needs of Congress.’” Id. at 46–47 (quoting

McSurely, 553 F.2d at 1285–86).

The district court inadequately considered the context of

these conversations, which involved Member deliberations

about upcoming votes. Some of the communications took place

shortly prior to Congress’s scheduled January 2021 vote on

28

whether to certify the electoral results from each state. Others

took place while the House was considering a bill that would

modify federal election procedures, among other things. See

H.R. 1, 117th Cong. Discussions between Members about

pending votes are “things generally done in a session of the

House by one of its members in relation to the business before

it,” Kilbourn, 103 U.S. at 204, and such discussions are within

the heartland of “the deliberative and communicative processes

by which Members participate in committee and House

proceedings with respect to the consideration and passage or

rejection of proposed legislation” or other matters within the

House’s jurisdiction. 13 Gravel, 408 U.S. at 625.

Relying on the fact that the communications concerned

election fraud and electoral results, the district court labeled

them “textbook political conversations not protected by the

Clause.” In re Search, slip op. at 46. While elections are

political events, a Member’s deliberation about whether to

certify a presidential election or how to assess information

relevant to legislation about federal election procedures are

textbook legislative acts protected by Gravel.

Federal courts must determine the outer boundaries of the

Speech or Debate Clause privilege. But when a Member

engages in a legislative act, the court cannot carve out from the

privilege certain topics of discussion by labeling them “merely

incidental” or by deeming them illegitimate. Id. at 47; cf.

Tenney, 341 U.S. at 377 (“The claim of an unworthy purpose

does not destroy the privilege.”). For courts to pick and choose

the scope of the privilege based on a free-floating evaluation of

13

The government does not dispute that the certification vote was a

“matter[] which the Constitution places within the jurisdiction of

[the] House,” nor that the vote on H.R. 1 was “the

consideration … of proposed legislation.” Gravel, 408 U.S. at 625.

29

the proper objects of congressional deliberation would threaten

the Speech or Debate Clause’s essential protection for

legislative independence.

Representative Perry’s conversations with other Members

concerned the passage of proposed legislation as well as the

exercise of the constitutional duty to certify the electoral votes

from the 2020 election. These communications were

privileged, and we leave it to the district court to implement

this holding on a communication-by-communication basis.

***

As to Representative Perry’s communications with

individuals outside the federal government, communications

with members of the Executive Branch, and communications

with other Members of Congress regarding alleged election

fraud during the period before Congress’s vote certifying the

2020 election and before its vote on H.R. 1, the district court

failed to apply the fact-specific privilege inquiry under Gravel.

We therefore vacate the judgment in part and remand for the

district court to apply the correct standard, consistent with this

opinion. With respect to the remaining privilege determinations

about Representative Perry’s communications with Members

of Congress, we affirm.

So ordered.

KATSAS, Circuit Judge, concurring: Representative Scott

Perry claims that the Speech or Debate Clause of the

Constitution protects the confidentiality of some 2,219 records

stored on his cell phone, including 1,508 communications with

individuals outside the House of Representatives. Perry says

that the latter involve what he calls “informal factfinding” to

inform his votes on whether to (1) certify the results of the 2020

presidential election and (2) support a bill to modify election

procedures. The district court held that because the House had

not formally authorized an investigation into either matter, the

Clause protects none of the 1,508 communications. On appeal,

the Executive Branch supports the court’s holding that the

Clause protects no unauthorized factfinding by individual

Members of Congress, and Perry continues to argue that the

Clause protects all the disputed records.

The Speech or Debate Clause provides that “for any

Speech or Debate in either House,” Members of Congress

“shall not be questioned in any other Place.” U.S. Const. art. I,

§ 6, cl. 1. The Clause protects only “legislative acts,” which

“must be an integral part of the deliberative and communicative

processes by which Members participate in committee and

House proceedings with respect to the consideration” of either

proposed legislation or other House votes. Gravel v. United

States, 408 U.S. 606, 625 (1972). This category includes

“things generally done in a session of the House by one of its

members in relation to the business before it.” Kilbourn v.

Thompson, 103 U.S. 168, 204 (1881). Conversely, the Clause

does not protect “political” acts, which are “casually or

incidentally related to legislative affairs but not a part of the

legislative process itself.” United States v. Brewster, 408 U.S.

501, 512, 528 (1972).

Several precedents elucidate this distinction. Protected

legislative acts include voting, speaking on the floor,

introducing bills or resolutions, writing committee reports, and

2

speaking at committee meetings. See Doe v. McMillan, 412

U.S. 306, 311 (1973); Kilbourn, 103 U.S. at 204. Also

protected is the issuance of subpoenas, if formally authorized

and relevant to a subject on which legislation could be had.

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504–06

(1975). On the other hand, unprotected political acts include

press releases, speeches made outside the Congress, and

helping constituents. Brewster, 408 U.S. at 512. Also

unprotected are “attempts to influence the conduct of executive

agencies,” Hutchinson v. Proxmire, 443 U.S. 111, 121 n.10

(1979); the taking of bribes, Brewster, 408 U.S. at 525–26; the

unauthorized acquisition of classified documents, Gravel, 408

U.S. at 628–29; and the use of other “unlawful means” to

pursue investigations, McSurely v. McClellan, 553 F.2d 1277,

1288 (D.C. Cir. 1976) (en banc).

The privilege claims asserted by Representative Perry are

substantially overbroad. Many of the disputed records involve

communications through which he sought to influence the

conduct of officials outside the Congress—Executive Branch

officials, state legislative officials, and campaign officials.

Many other records involve press releases or media statements.

The district court correctly held that the Speech or Debate

Clause does not protect any of these records. And because

Perry attempts to shoehorn all the disputed records into an

assertedly protected category of informal factfinding, this

Court rightly concludes that his alleged category includes many

unprotected communications.

But some of the disputed records involve nothing more

than Representative Perry gathering information to inform

upcoming votes. In my view, the Speech or Debate Clause

protects that activity. Should an individual Member of

Congress bother to learn something about a bill before voting

on it? The question answers itself. “Without information,

3

Congress would be shooting in the dark, unable to legislate

‘wisely or effectively.’” Trump v. Mazars USA, LLP, 140 S.

Ct. 2019, 2031 (2020) (quoting McGrain v. Daugherty, 273

U.S. 135, 175 (1927)). That is why each House has an implied

power to subpoena witnesses or documents relevant to possible

legislation. McGrain, 273 U.S. at 177. It is also why the

Speech or Debate Clause protects exercises of that power.

Eastland, 421 U.S. at 504. Of course, individual Members

cannot unilaterally exercise the House’s implied power to issue

subpoenas (at least absent a delegation), just as they cannot

unilaterally exercise Congress’s express power to, say, regulate

interstate commerce. But when individual Members solicit or

receive information from colleagues or others willing to

provide it voluntarily, they engage in activity integral to the

“deliberative and communicative processes” of the Congress

itself. Gravel, 408 U.S. at 625. Regardless of formal

authorization, the Speech or Debate Clause thus protects

“information gathering” as an “essential prerequisite[]” to the

“enlightened debate over proposed legislation,” Gov’t of V.I. v.

Lee, 775 F.2d 514, 521 (3d Cir. 1985); see Miller v.

Transamerican Press, Inc., 709 F.2d 524, 530 (9th Cir. 1983),

just as a common-law immunity protects the same activity by

state and local legislators, Almonte v. City of Long Beach, 478

F.3d 100, 107 (2d Cir. 2007); Bruce v. Riddle, 631 F.2d 272,

279–80 (4th Cir. 1980); see also Kent v. Ohio House of

Representatives Democratic Caucus, 33 F.4th 359, 364 (6th

Cir. 2022) (equating the two immunities).

The district court reasoned that McSurely forecloses

Speech or Debate Clause protection for information gathering

that has not been formally authorized by the House or Senate

itself. In re Search of Forensic Copy of Cell Phone of

Representative Scott Perry, No. 1:22-sc-02144, slip op. at 22

(D.D.C. Dec. 28, 2022) (In re Search). But one part of

McSurely says the opposite: “The acquisition of knowledge

4

through informal sources is a necessary concomitant of

legislative conduct and thus should be within the ambit of the

privilege so that congressmen are able to discharge their

constitutional duties properly.” 553 F.2d at 1287 (cleaned up).

The district court invoked McSurely’s further statement that

“congressional authorization” of an investigation, which the

House or Senate typically provides to a committee or

subcommittee, is a “requirement” to justify the issuance of

subpoenas under McGrain and the ensuing Speech or Debate

Clause protection under Eastland. See id. In turn, Eastland

confirms that congressional authorization of an investigation is

“sufficient” to justify the issuance of subpoenas under

McGrain. See 421 U.S. at 506. These rules, governing the

authority and protection for the issuance of congressional

subpoenas, do not suggest that the Speech or Debate Clause

affords no protection when a Member seeks only to gather

information consensually and informally, from individuals

willing to provide it voluntarily.

Moreover, such a restriction would stand the Clause on its

head. Its most obvious applications—to speech, debate, and

voting—cover activities that Members routinely perform on

the floor of the House, individually and without authorization

from any committee or subcommittee. A leading early decision

held that a state analog of the Clause “is not so much the

privilege of the house, as an organized body, as of each

individual member composing it, who is entitled to this

privilege, even against the declared will of the house.” Coffin

v. Coffin, 4 Mass. 1, 27 (1808). The Supreme Court, describing

Coffin as “perhaps, the most authoritative case in this country”

on the “freedom of debate in legislative bodies,” has treated

Coffin as highly persuasive in construing the federal Speech or

Debate Clause. See Kilbourn, 103 U.S. at 203–04. And the

modern Court continues to describe the Clause as protecting

“the independence of individual legislators,” not the House or

5

Senate as a whole or committees or subcommittees acting on

behalf of either body. Brewster, 408 U.S. at 507.

Finally, a formal authorization requirement would make

no sense. At oral argument, the Executive all but conceded that

the Speech or Debate Clause protects individual Members who,

while conducting the business of a congressional committee or

subcommittee, informally solicit input from individuals outside

the Congress. See Oral Arg. 46:00–48:30, 51:30–52:05. But

the character of these solicitations is the same regardless of

whether the relevant deliberations occur in a subcommittee, in

a committee, or on the floor. If a Member of the Senate

Judiciary Committee engages in protected activity by soliciting

input from outside groups to inform his vote on whether to

recommend confirming a Supreme Court nominee, then so too

do other Members of the Senate in deciding how to vote when

the nomination reaches the full Senate. Likewise, the district

court recognized that a Representative, regardless of committee

or subcommittee authorization, engages in protected activity by

soliciting information from fellow Representatives about an

upcoming vote. In re Search, supra, at 40–41. If that is so,

then so too does a Representative who, in preparing for the

same vote, solicits information from individuals outside the

Congress.

The Court rightly concludes that the category of “informal

factfinding” proposed by Representative Perry includes much

unprotected material, but I do not read the Court’s opinion to

foreclose protection for the kind of informal, non-coercive

information gathering that I have described. On that

understanding, I join the Court’s opinion in full.