[Congressional Record Volume 140, Number 113 (Saturday, August 13, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 13, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            SENATE LEGAL COUNSEL TO APPEAR AS AMICUS CURIAE

  Mr. DASCHLE. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of Senate Resolution 248, a resolution 
submitted earlier today by Senators Mitchell and Dole; that the 
resolution and the preamble be agreed to; that the motions to 
reconsider be laid on the table, en bloc; and that any statements 
thereon appear in the Record at the appropriate place as though read.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MITCHELL. Mr. President, Senator Dave Durenberger's appeal from 
the denial of motions to dismiss his indictment is pending in the U.S. 
Court of Appeals for the District of Columbia Circuit. The indictment 
alleges that Senator Durenberger submitted false claims to the Senate 
in regarding reimbursement for lodging in a Minneapolis condominium.
  Senator Durenberger moved to dismiss the indictment, asserting that 
Senate rules underlying the indictment cannot be the subject of an 
adjudication in court and that a statute governing payment of Senator 
vouchers bars the prosecution. The district court denied the motions, 
and Senator Durenberger has taken an appeal.
  The Government has moved to dismiss Senator Durenberger's appeal or, 
in the alternative, moved for summary affirmance of the district 
court's orders. Either action, on the basis of motion papers alone, may 
have the effect of limiting Senator Durenberger's opportunity to 
present the points of his appeal as fully as he believes is warranted, 
and is a form of consideration that the court utilizes sparingly, 
usually in clear-cut cases.
  The Federal courts of appeals have historically given full 
consideration to claims in appeals by Members of Congress that civil or 
criminal prosecutions conflict with the constitutional separation of 
powers, including in a civil appeal the D.C. Circuit decided last month 
involving a Member of the other body. The Senate shares an interest 
with Senator Durenberger in the thorough consideration by the courts of 
appeals of cases presenting questions under the separation of powers.
  This resolution would authorize the Senate Legal Counsel to file a 
memorandum as amicus curiae on the Senate's behalf solely in support of 
Senator Durenberger's receiving a full opportunity to brief and argue 
his appeal.
  Senators may recall that the Senate appeared as an amicus curiae once 
before in this proceeding to support a claim that Senator Durenberger 
was making under the speech or debate clause. Senator Durenberger's 
initial indictment was dismissed because of speech or debate 
violations. Those problems have been cured in the present case.
  In the present filing, the Senate would take no position on the 
merits of any of Senator Durenberger's claims or defenses, but only on 
his opportunity to be heard.
  The resolution (S. Res. 248) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, is as follows:

                              S. Res. 248

       Whereas, in the case of United States v. Durenberger, No. 
     94-3105, pending on appeal in the United States Court of 
     Appeals for the District of Columbia, the powers and 
     responsibilities of Congress and the relationship among the 
     branches of government have been placed in issue;
       Whereas, pursuant to sections 703(c), 706(a), and 713(a) of 
     the Ethics in Government Act of 1978, 2 U.S.C. 288b(c), 
     288e(a), and 288l(a) (1988), the Senate may direct its 
     Counsel to appear as amicus curiae in the name of the Senate 
     in any legal action which places in issue the powers and 
     responsibilities of Congress under the Constitution: Now, 
     therefore, be it
       Resolved, That the Senate Legal Counsel is directed to 
     appear as amicus curiae in the name of the Senate in United 
     States v. Durenberger, for the limited purpose of requesting 
     the Court to give plenary consideration to the contentions of 
     the United States and Senator Durenberger in regard to the 
     separation of powers questions presented by the appeal.

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