Witnesses Have Better Protection Before Parliament than Before Congress

Although I was not surprised that President Trump punished and effectively fired Lt. Col. Vindman and Ambassador Sondland for testifying before Committees of the US House of Representatives in the impeachment hearings, I was somewhat surprised that there is little or no constitutional protection for them against such retribution.  Had such action been taken by government officials in Canada or the UK the witnesses would be able to rely on parliamentary privilege to protect them from such consequences.  But apparently not in the land of the free and the self-proclaimed greatest democracy on earth.

The reason for the distinction appears lost to the mists of time and some not particularly well thought out drafting clean-up in the final version of the US Constitution.

The root of the parliamentary, or congressional, privilege is the same.  Prior to the English Civil War there were numerous attempts by the King or Queen to interfere in the business of the House of Commons, resulting in arrests and imprisonments for what was said or done there.  In 1642 Charles I personally entered the House of Commons to arrest a number of Members for the positions they were taking.  The resulting Civil War ended with Charles being tried by “Parliament” and executed.  Following the period of the Commonwealth under Oliver Cromwell, and a flawed and acrimonious restoration, William and Mary of Orange were requested to ascend to the throne on the basis eventually set out in the Bill of Rights, 1689.  This Bill established the relationship between the Crown and Parliament with the independence of Parliament assured.  Key to the Bill of Rights was Article 9 that provides:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament

As a result, both the freedom of speech and the proceedings of the House of Commons and the House of Lords were protected from interference by the courts or the Crown.

As Michael Shenkman notes in a 2014 article in Yale Law & Policy Review, it was the sentiment and purpose of this history and the Article 9 privilege that “traveled to the American colonies by adoption in the colonial assemblies.”  In fact, wording identical to that of Article 9 of the Bill of Rights, 1689 was included in the American Articles of Confederation, 1781.  Article 5, paragraph 5 provided, “Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress”.  The Constitutional Convention in 1787 agreed to a slightly reworded provision, that replaced the word ‘Congress’ with ‘Legislature’. This was done “without recorded debate or dissent.”   The clause, along with the others, was then sent on to the Committee on Style for the final wording in the Constitution.  The result was Section 6(1) of the US Constitution- the “Speech and Debate Clause” :

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.

There appears to be no rationale for the changed language, but the changes make it clear that the provision became personal to Senators and Representatives, not the institution.   And therein lies the peril to Vindeman and Sondland that manifested itself in the decision of the President.

Within 30 years following the ratification of the US Constitution in June 1788 the UK House of Commons unanimously declared (in May 1818) that the protections of Article 9 applied to witnesses before committees since they were full participants in the proceedings of Parliament.  Since that date, courts in the UK and Canada have accepted that position and confirmed that the protections in Article 9 fully extend to witnesses.  In addition, the courts have recognized that these, and all privileges, are designed to protect, and have as their purpose the protection of, the institution, not individuals.   In the United States it would appear that, while the courts claim that the privilege protects the independence of the institution of Congress and the separation of powers, it only has such effect indirectly, by giving protection to members of the institution, not to the work and functions of the institution itself.  This leaves  a gap in the protection for the participation of others in the proceedings, particularly witnesses.

In contrast, as recently as 2007, Canadian courts have confirmed the constitutional nature of the privilege set out in Article 9 of the Bill of Rights, 1689, the institutional basis of the privilege, and that witnesses can rely on the privilege to protect them from reprisal, even if the reprisal is statute based.

Two Canadian cases in the mid 2000’s considered and confirmed the Canadian position, based on British jurisprudence.  The first case involved the proposed use of testimony given by a witness before a parliamentary committee, , Charles Guité, to impeach his credibility as a witness before a public inquiry into the same subject (the Inquiry into Government Sponsorship; the “Gomery Inquiry”).   The House of Commons retained counsel to argue that the testimony before the committee was privileged and could not be used before the Inquiry for the purpose indicated.  Counsel also argued that the privilege belonged to the House and not the Committee or witness.  Commissioner Gomery agreed and requested that the House of Commons consider waiving the privilege.  The House ultimately decided not to give such a waiver, and instead confirmed the privilege.  The decision of the House was based partially on the fact that the committee and the Law Clerk of the House of Commons had given assurances to all witnesses that their testimony was privileged and that the House would protect the witnesses.

The decision to not permit the use of the testimony was judicially reviewed by the Federal Court, which upheld the privilege. In Gagliano v Canada (Attorney-General) , [2005] 3 FCR 55 the court summarized its findings:

[72] …[T]he power to preclude cross-examination of witnesses using evidence obtained in previous proceedings of Parliament falls within the scope of parliamentary privilege because it is necessary to the functioning of Parliament. It is necessary at three levels: to encourage witnesses to speak openly before the parliamentary committee, to allow the committee to exercise its investigative function and, in a more secondary way, to avoid contradictory findings of fact.

[74] The longstanding justification for the privilege of free speech is this: it protects the capacity of both parliamentarians and witnesses to speak freely without fear of being questioned later. As we saw earlier, this justification goes back to the court decisions preceding even the Bill of Rights, 1688 itself and the courts have subscribed to it for centuries.

[108] Parliamentary privilege helps to demarcate the legitimate spheres of jurisdiction, and is therefore a fundamental aspect of our constitutional democracy. It makes those powers, privileges and immunities which are necessary to Parliament’s functioning in the present Canadian context subject to the exclusive jurisdiction of Parliament. It is my opinion that precluding cross-examination based on evidence presented to a parliamentary committee is necessary for that committee, primarily because it encourages witnesses to speak openly.

[109] It is also essential to the proper functioning of the committee in its investigative or inquisitorial role. And it forecloses the possibility that a finding of fact by a court or a commission of inquiry will contradict a finding of fact by a parliamentary committee or parliament as a whole.

In 2007, Deputy Commissioner of the RCMP Barbara George testified as a witness before the House of Commons Standing Committee on Public Accounts.  The Committee was studying a report of the Auditor General on Pension and Insurance Administration of the RCMP.  Ms. George was the Deputy Commissioner responsible within the RCMP for this program.  Other witnesses before the Committee contradicted the testimony of Ms. and made certain allegations against her.

Based on the testimony of Ms. George and the various other witnesses, the Commissioner of the RCMP removed her from her position and initiated an internal disciplinary investigation under the Royal Canadian Mounted Police Act and its regulations.  The gist of the investigation was that Ms. George misled the Committee, and therefore violated a provision of the RCMP regulations that “a member shall not engage in any disgraceful or disorderly conduct that could bring discredit to the Force.”  The entire allegation and basis for the investigation was the appearance and testimony of Ms. George before the Committee.

Ms George brought an application before the Federal Court to quash the investigation on the basis that her appearance and testimony were protected by parliamentary privilege. Therefore the RCMP lacked any basis for its decision to investigate her actions.  The Federal court agreed [Canada (Deputy Commissioner of the RCMP) v Canada (Commissioner of the RCMP), [2008] 1 FC 752] and quashed the disciplinary investigation.  In doing so the court made the following observations:

[63]  [I]t is worth emphasizing several key justifications for providing immunity to a parliamentary witness’ testimony. First, although witnesses before a parliamentary committee are not Members of Parliament, they are not strangers to the House either. Rather they are guests who are afforded parliamentary privilege because, as with members, the privilege is necessary to ensure that they are able to speak openly, free from the fear that their words will be used against them in subsequent proceeding… . Given the overriding importance of the House of Commons as “the grand inquest of the nation”, it is fundamental that members and witnesses alike are not inhibited from stating fully and freely what they have to say: Prebble v. Television New Zealand, [1995] 1 A.C. 321 (P.C.).

[64] Second, without the power to protect witnesses, Parliament’s investigative function would be seriously compromised because witnesses would be less forthcoming [cite omitted\

[65] Finally, if Parliament has reason to believe that a witness has deliberately misled the House, it is up to Parliament, and Parliament alone, to initiate proceedings and discipline such conduct. Misleading the House is contempt of the House punishable by the House: if a court or another entity was allowed to inquire into whether a member or a witness had misled the House, this could lead to exactly the type of conflict between two spheres of government that the wider principle of parliamentary privilege is designed to avoid…

And, to the same effect:

[76] As stated above, one of the primary justifications for providing immunity to witnesses, as well as to Members of Parliament, is to ensure that they can speak openly and freely before a Committee without fear that what they say will later be held against them. In other words, for Parliament to fulfil its deliberative and investigative functions with dignity and efficiency it is necessary that witnesses before House committees can be confident that their testimony is immune from subsequent challenges from outside the House.

After considering the facts, the court concludes:

[95] [T]he RCMP is free to investigate allegations that the applicant breached the RCMP’s Code of Conduct in the discharge of her duties, but may not investigate the specific allegation that the applicant provided false testimony to the House. Parliamentary privilege protects what is said in the House and, if the House believes it was misled, it is for the House alone to investigate and punish this offence.

In other words, any investigation based on, or derived from, the testimony or proceedings is not permissible.

In all of this it is important to note the institutional basis and benefit of the privilege. It is this and not the individual benefit that is the focus.

When compared to the American focus that is limited to Members and focused on them, rather than the institution, it is easy to see why many see parliamentary privilege generally as a protection of politicians, or some form of individual immunity.  But it is not and should not be.  The institution and all who participate in its work, including witnesses, are critically important to the separation of powers and the holding of government to account without reprisal.  I am certain that Lt. Col. Vindeman, Ambassador Sondland, and the American public would agree.

It should also be reassuring for witnesses before parliamentary committees in Canada that their testimony will be protected by privilege and that their testimony cannot be used against them either in the courts or by the government in any form of retribution.  Parliament and the constitution have their back.

One thought on “Witnesses Have Better Protection Before Parliament than Before Congress”

  1. Steve, You are absolutely right in noting the difference between the Anglo and Canadian versions of parliamentary privilege on one hand and the American version on the other. The origin of this difference may perhaps be explained by the delegates priorities and by the process of drafting of the US Constitution. The best book on this subject that I have encountered is entitled The Genius of the People, by Charles l. Mee, published in 1987. There is a chapter in this book that deals with the powers of Congress but it focuses on the power to make war and the power to raise taxes. There is no reference to the matter of Congressional privileges. The book also makes the finalisation of the text seem messy and, in the minds of the delegates to Philadelphia, secondary to their discussions of lofty ideals.
    All this having been said, there are two additional considerations to bear in mind. First, even if the Constitution had been more precisely similar to what English law said at that time about privilege, it is likely that President Trump would have ignored it; he has circumvented so much else that he would likely have acted in this manner no matter the consequences. Second, in having Lt.-Col. Vindman frog-marched out of the White House the way he did, Trump was sending a message that no parliamentary (congressional) privilege could have forestalled. He wanted to demonstrate his determination and vindictiveness, no matter what legal impediments were, or might have been, in place.

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