[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[D. Immunities of Members and Aides]
[§ 17. For Legislative Activities]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 802-815]
CHAPTER 7
The Members
D. IMMUNITIES OF MEMBERS AND AIDES
Sec. 17. For Legislative Activities
The constitutional clause prohibiting questioning of a Member about
any speech or debate in the House is not confined merely to remarks
delivered in the Chamber and printed in the Congressional
Record.(3) As long as legislators are ``acting in the sphere
of legitimate legislative activity,'' (4) they are protected
not only from the consequence of litigation but also from the burden of
defending themselves.(5) The immunity may also extend to
congressional aides and employees where they assist in an integral way
in the legislative process.(6) Thus, Members of
[[Page 803]]
the House and certain staff, engaged in legislative activities, are
immune in preparing and submitting committee reports, but officials
such as the Public Printer may or may not be immune, depending on the
legislative necessity of their actions.(7)
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3. The courts have stated that the protection of the clause, at U.S.
Const. art. I, Sec. 6, clause 1, extends to every ``act
resulting from the nature and in the execution of the office,''
including an act ``not within the walls of the Representatives'
chamber,'' Coffin v Coffin, 4 Mass. 1, 27 (1808), and to
``committee reports, resolutions, and things generally done in
a session of the House by one of its Members in relation to the
business before it,'' Powell v McCormack, 395 U.S. 486, 502
(1969), quoting Kilbourn v Thompson, 103 U.S. 168, 204 (1881).
4. Tenney v Brandhove, 341 U.S. 367, 376 (1951).
5. Dombrowski v Eastland, 387 U.S. 82, 85 (1967); Powell v McCormack,
395 U.S. 486, 505 (1969).
6. The Supreme Court stated in Gravel v U.S., 408 U.S. 606, 616, 617
(1972) (J. White) (analyzed at Sec. 17.4, infra), ``that it is
literally impossible, in view of the complexities of the modern
legislative process . . . for Members of Congress to perform
their legislative tasks without the help of aides and
assistants; that the day to day work of such aides is so
critical to the Members' performance that they must be treated
as the latter's alter ego; and that if they are not so
recognized, the central role of the Speech and Debate Clause .
. . will inevitably be diminished and frustrated.'' See also
Doe v McMillan, 412 U.S. 306 (1973) for the immunity of
committee staff engaged in legitimate legislative acts.
Compare Kilbourn v Thompson, 103 U.S. 165 (1881), wherein
the Sergeant at Arms of the House was held liable for false
imprisonment where he executed an unconstitutional resolution.
7. See Sec. 17.1, infra.
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The activities of congressional committees when pursuing
investigations are absolutely privileged as to Members of
Congress.(8)
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8. See the cases noted to Sec. 17.1, infra.
In Coleman v Newark Morning Ledger Co., 29 N.J. 357, 149
A.2d 193 (1959) (see case comment, 28 Fordham L. Rev. 363
[1959]), a state court held that a press conference given by a
Senator was privileged, where he was acting as the voice of the
subcommittee, and informing the public of the results of the
investigation. Another state court held in Hancock v Burns, 158
Cal. App. 2d 785, 333 P.2d 456 (1st Dist. 1958) (see case
comment, 11 Stan. L. Rev. 194 [1958]) that a letter sent to a
citizen's employer describing him as a security risk was
privileged, since the letter was an ordinary means adopted by a
state legislative committee to publicize its investigative
results.
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However, not every legislative activity is protected by the Speech
and Debate Clause. Congressmen have been convicted for conspiracy and
bribery in relation to activities which, but for the illegal
compensation involved, are often undertaken by Congressmen within the
scope of their duties.(9) In the 1972 case of Gravel v
United States,(10) the court restricted protected
legislative activities to those which are 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
[[Page 804]]
with respect to other matters which the Constitution places within the
jurisdiction of either House.'' (11) Therefore, a
legislative aide to a Congressman could be subpenaed by a grand jury in
order to testify about the source of classified government documents
and about private arrangements for republication of the
documents.(12)
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9. See Burton v U.S., 202 U.S. 344 (1906) (intercession before Post
Office Department); May v U.S., 175 F2d 994 (D.C. Cir. 1949)
(services rendered before governmental departments for
citizen); Johnson v U.S., 383 U.S. 169 (1966) (intercession
before Justice Department).
10. 408 U.S. 606 (1972) (see Sec. 17.4, infra).
11. 408 U.S. at 625.
12. See Sec. 17.4, infra.
Compare McGrain v Daugherty, 273 U.S. 135, 174, 175 (1927):
``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; and where the
legislative body does not itself possess the requisite
information--which is not infrequently true--recourse must be
had to others who do possess it.'' See also Hill Parents
Ass'n., Inc. v Giaimo, 287 F Supp 98 (D. Conn. 1968) and
Preston v Edmundson, 263 F Supp 370 (N.D. Okla. 1967)
(Congressmen acting under color of office when informing public
through press releases and television interviews).
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In Gravel and in Brewster v United States, decided in the same
term,(13) the court excluded from the protection of the
clause those activities it considered only peripheral to legislative
activity and essentially political in nature, such as constituent
service in general and obtaining and disseminating information in
particular.(14)
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13. 408 U.S. 501 (1972)
14. In Gravel, 408 U.S. at 627, the court rejected the opinion of the
Court of Appeals below, U.S. v Doe, 455 F2d 753, 760 (1st Cir.
1972), that a common law privilege attached to the official
informing role of Congressmen.
In Brewster, 408 U.S. at 512, 513, Chief Justice Burger
stated for the majority: ``It is well known, of course, that
Members of the Congress engage in many activities other than
the purely legislative activities protected by the Speech or
Debate Clause. These include a wide range of legitimate
`errands' performed for constituents, the making of
appointments with government agencies, assistance in securing
government contracts, preparing so-called `news letters' to
constituents, news releases, and speeches delivered outside the
Congress. The range of these related activities has grown over
the years. They are performed in part because they have come to
be expected by constituents, and because they are a means of
developing continuing support for future elections. Although
these are entirely legitimate activities, they are political in
nature rather than legislative, in the sense that term has been
used by the court in prior cases.'' In his dissent, Justice
White stated at 557: ``Serving constituents is a crucial part
of a legislator's duties. Congressmen receive a constant stream
of complaints and requests for help or service. Judged by the
volume and content of a Congressman's mail, the right to
petition is neither theoretical nor ignored. It has never been
thought unethical for a Member of Congress whose performance on
the job may determine the success of his next campaign not only
to listen to the petitions of interest groups in his state or
district, which may come from every conceivable group of
people, but also to support or oppose legislation serving or
threatening those interests.''
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[[Page 805]]
Many Congressmen viewed those decisions as posing a threat to the
independence of congressional speech and of legislative
activities.(15) Congressional hearings have been held on the
subject.(16)
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15. See Ervin (Senator, N.C.), The Gravel and Brewster Cases: An
Assault on Congressional Independence, 59 Va. L. Rev. 175
(1973). Senator Ervin stated id. at p. 186 that the Supreme
Court's definitions of unprotected political activity reflected
a ``shocking lack of understanding of the essential elements of
the legislative process and the representative role of the
legislative branch.'' James C. Cleveland, Representative from
New Hampshire, stated in Legislative Immunity and the Role of
the Representative, 14 N.H. Bar Jour. 139 (1973) that the court
``had undertaken to threaten gravely the independence of
Congress as a coequal branch of government.''
See also, for critical commentaries on the decisions,
Reinstein and Silverglate, Legislative Privilege and the
Separation of Powers, 86 Harv. L. Rev. 1113 (1973); Note,
Immunity Under the Speech or Debate Clause for Republication
and from Questioning About Sources, 71 Mich. L. Rev. 1251
(1973). Another commentator suggested in Brewster, Gravel and
Legislative Immunity, 73 Col. L. Rev. 125, 147, 148 (1973) that
the reliance of the court in Brewster and in Gravel upon
English precedents, in order to conclude that republication of
congressional materials and dissemination of information was
not privileged, was misplaced, since at the time of the English
precedents legislators had no responsibility to inform their
constituents of governmental activities and policies.
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Cross References
Immunity of officers, officials and employees, see Ch. 6, supra.
Collateral References
Absolute Tort Immunity for Legislative Correspondence?, 11 Stan. L.
Rev. 194 (Dec. 1958).
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16. Hearings, Constitutional Immunity of Members of Congress
(legislative role in gathering and disclosing information),
Joint Committee on Congressional Operations, 93d Cong. 1st
Sess. (Mar. 1973).
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Blacklisting Through the Official Publication of Congressional Reports,
81 Yale L. Jour. 188 (Dec. 1971).
Congressional Papers and Judicial Subpoenas, 23 U.C.L.A. L. Rev. 57
(1975).
Defamation--Publication of Defamatory Statements Made by U.S. Senator
at Press Conference is Qualifiedly Privileged, 28 Fordham L. Rev.
363 (1959).
Dombrowski v Eastland--A Political Compromise and Its Impact, 22
Rutgers L. Rev. 137 (1967).
First Amendment--Congressional Investigations and the Speech or Debate
Clause, 40 U. Missouri at Kansas City L. Rev. 108 (1971).
[[Page 806]]
Speech or Debate Clause--Declaratory and Injunctive Relief Against a
Congressional Committee, 1970 Wisc. L. Rev. 1216 (1970).
The Scope of Immunity for Legislators and Their Employees, 7 Yale L.
Jour. 366 (1967).
United States Constitution Annotated, Library of Congress, S. Doc. No.
9282, 117-122, 92d Cong. 2d Sess.
(1972). -------------------
Committee Activities, Reports, and Employees
Sec. 17.1 Where an injunction was sought to restrain the publication of
a committee report alleged to defame certain persons identified
therein, the Supreme Court held that: (1) members of the committee
and stall were immune under the Speech and Debate Clause insofar as
engaged in legislative acts in relation to the report; (2) persons
with authorization from Congress performing the nonlegislative
function of distributing materials infringing on individual rights
are not absolutely immune under the clause; and (3) the Public
Printer and the Superintendent of Documents were immune under the
common-law doctrine of official immunity to the extent they served
legitimate legislative functions in publishing and distributing the
report.(17)
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17. Doe v McMillan, 412 U.S. 306 (1973).
For further information on the immunity of committee
activities and the immunity of committee employees, see
Dombrowski v Eastland, 387 U.S. 82 (1967), Barsky v U.S., 167
F2d 241 (1948), and Stamler v Willis, 415 F2d 1365 (1969),
cert. denied, 399 U.S. 929 (1970).
In Dombrowski, the Court dismissed an action for damages
for conspiracy to seize records unlawfully that had been
brought against members of the Senate Internal Security
Subcommittee of the Judiciary Committee; the Court stated that
since the subject matter of the records was within the
subcommittee's jurisdiction, issuance of subpenas to a
Louisiana legislative committee to obtain the records was
privileged as to subcommittee members. The Court remanded as to
a subcommittee employee, whose immunity was not absolute.
In Barsky, the court upheld a conviction for willful
failure to produce records for the House Committee on Un-
American Activities and dismissed the defense of improper
committee conduct, since the enabling resolution authorized the
inquiry in question, and the inquiry was protected legislative
activity.
In Stamler, where citizens complained of hindrance of free
speech by members and employees of the House Committee on Un-
American Activities, the Federal Court of Appeals for the 7th
Circuit upheld the immunity of committee members from suit, but
stated that officials of the committee could be held personally
liable for following orders given to them by the legislature.
The court stated that it had been clearly established that
``liability, including personal tort liability, could be
imposed on an official for following orders given to him by the
legislature, even though the legislators could not be held
personally liable.'' Stamler v Willis, 415 F2d 1365, 1368 (7th
Cir. 1969), cert. denied, 399 U.S. 929 (1970).
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[[Page 807]]
On Feb. 5, 1969, the House passed House Resolution No. 76,
authorizing the Committee on the District of Columbia to investigate
and report upon the organization, operation, and management of any
subdivision of the District of Columbia government.(18)
Pursuant to that resolution, the committee prepared and submitted to
the House a report, entitled ``Investigation and Study of the Public
School System of the District of Columbia.''
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18. 115 Cong. Rec. 2784, 91st Cong. 1st Sess.
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Suit was filed in a federal court by persons named in the report,
alleging the report to be defamatory and praying for a declaratory
judgment and an injunction against further publication and distribution
of the report. The suit named as defendants members of the Committee on
the District of Columbia, the clerk, staff director, and counsel of the
committee, a consultant and investigator for the committee, the
Superintendent of Documents and the Public Printer, officials of the
District of Columbia government, and the United States of America. The
Federal Court of Appeals for the District of Columbia Circuit affirmed
the district court's dismissal of the case, on the grounds that the
committee members and their staff were immune from suit under the
Speech and Debate Clause and that the Public Printer, Superintendent of
Documents and D.C. officials were protected under the doctrine of
official immunity (Barr v Mateo, 360 U.S. 564). The court had been
advised that the members of the committee were not in fact seeking
further publication or distribution of the report.(19)
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19. Doe v McMillan, 459 F2d 1304, 1322 (D.C. Cir. 1972).
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The Supreme Court reversed in part, affirmed in part, and remanded
to the Court of Appeals. The Court found that the congressional
committee members, members of their staff, the committee consultant and
the committee investigator were absolutely immune under the Speech and
Debate Clause insofar as they were engaged in legislative acts of com
[[Page 808]]
piling the report, submitting it to the House, and voting for its
publication.(20) Said the Court:
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20. 412 U.S. 306, 311-313.
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Without belaboring the matter further, it is plain to us that
the complaint in this case was barred by the Speech or Debate
Clause insofar as it sought relief from the Congressmen-Committee
members, from the Committee staff, from the consultant, or from the
investigator, for introducing material at Committee hearings that
identified particular individuals, for referring the report that
included the material to the Speaker of the House, and for voting
for publication of the report. Doubtless, also, a published report
may, without losing Speech or Debate Clause protection, be
distributed to and used for legislative purposes by Members of
Congress, congressional committees, and institutional or individual
legislative functionaries. At least in these respects, the actions
upon which petitioners sought to predicate liability were
``legislative acts,'' Gravel v United States, supra, at 618, and,
as such, were immune from suit.(1)
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1. 412 U.S. at 312.
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The Court found, however, that other persons acting under the
orders of Congress were not absolutely immune under the clause:
Members of Congress are themselves immune for ordering or
voting for a publication going beyond the reasonable requirements
of the legislative function, Kilbourn v Thompson, supra, but the
Speech or Debate Clause no more insulates legislative functionaries
carrying out such nonlegislative directives than it protected the
Sergeant at Arms in Kilbourn v. Thompson when, at the direction of
the House, he made an arrest that the courts subsequently found to
be ``without authority.'' 103 U.S. at 200. See also Powell v
McCormack, 395 U.S., at 504; cf. Dombrowski v. Eastland, 387 U.S.
82 (1967). The Clause does not protect ``criminal conduct
threatening the security of the person or property of others,
whether performed at the direction of the Senator in preparation
for or in execution of a legislative act or done without his
knowledge or direction.'' Gravel v United States, supra, at 622.
Neither, we think, does it immunize those who publish and
distribute otherwise actionable materials beyond the reasonable
requirements of the legislative function.(2)
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2. 412 U.S. at 315, 316.
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The Court discussed the common-law principle of official immunity
(Barr v Mateo, 360 U.S. 564) in relation to the Public Printer and
Superintendent of Documents:
We conclude that, for the purposes of the judicially fashioned
doctrine of immunity, the Public Printer and the Superintendent of
Documents are no more free from suit in the case before us than
would be a legislative aide who made copies of the materials at
issue and distributed them to the public at the direction of his
superiors. See Dombrowski v Eastland, 387 U.S. 82 (1967). The scope
of inquiry becomes equivalent to the inquiry in the context
[[Page 809]]
of the Speech or Debate Clause, and the answer is the same. The
business of Congress is to legislate; Congressmen and aides are
absolutely immune when they are legislating. But when they act
outside the ``sphere of legitimate legislative activity,'' Tenney
v. Brandhove, 341 U.S., at 376, they enjoy no special immunity from
local laws protecting the good name or the reputation of the
ordinary citizen.
Because we think the Court of Appeals applied the immunities of
the Speech or Debate Clause and of the doctrine of official
immunity too broadly, we must reverse its judgment and remand the
case for appropriate further proceedings. We are unaware, from this
record, of the extent of the publication and distribution of the
report which has taken place to date. Thus, we have little basis
for judging whether the legitimate legislative needs of Congress,
and hence the limits of immunity, have been exceeded. These matters
are for the lower courts in the first instance.(3)
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3. 412 U.S. 324, 325.
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Sec. 17.2 When the Senate and the House in the 84th Congress ordered
printed as a Senate document an allegedly libelous committee
report, a federal court held that, under the Speech and Debate
Clause, it could not enjoin the printing and distribution of the
report.(4)
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4. Methodist Federation for Social Action v Eastland, 141 F Supp 729
(D.D.C. 1956).
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On Jan. 16, 1956, the Senate adopted Senate Concurrent Resolution
No. 62, to authorize the printing of a committee report as a Senate
document and to authorize the printing of 75,000 additional copies
thereof.(5) The report had been issued by the Subcommittee
on Internal Security of the Senate Judiciary Committee, and was
entitled ``The Communist Party of the United States--What It Is--How It
Works--a Handbook for Americans.''
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5. 102 Cong. Rec. 534, 84th Cong. 2d Sess.
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On Apr. 23, 1956, Senate Concurrent Resolution No. 62 was called up
in the House.(6) Mr. Wayne L. Hays, of Ohio, stated in
reference to the resolution:
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6. 102 Cong. Rec. 6777, 84th Cong. 2d Sess.
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May I say . . . that this resolution is a Senate resolution and
there was quite a good deal of discussion in the committee about
it. The House Administration Committee took the position that we
had no authority to go behind the Senate resolution and verify the
contents of the document. If the other body certified it, it was
our belief that we could not go behind the resolution and I would
like to read to you just two lines. When the resolution was
reported out a motion was made by the gentleman from Ohio [Mr.
Schenck], seconded by the gentleman from Louisiana [Mr. Long], and
in the motion this language was included:
[[Page 810]]
This committee takes no responsibility for the contents of
this pamphlet, Handbook for Americans. The responsibility rests
entirely on the Senate Subcommittee on Internal Security of the
Committee on the Judiciary.
The House agreed to the resolution.(7)
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7. Id. at p. 6778.
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Subsequently, the Methodist Federation for Social Action filed suit
in federal court seeking to enjoin the release of the committee report,
on the ground that the report falsely, defamatorily, and without a
hearing, declared that the federation was a Communist front
organization.(8)
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8. Methodist Federation for Social Action v Eastland, 141 F Supp 729
(D.D.C. 1956).
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The court declined to order relief, holding that since the report
was ordered printed by the Public Printer and Superintendent of
Documents, pursuant to a congressional resolution of both the House and
Senate, the court had no power to prevent publication under the Speech
and Debate Clause of the Constitution.
Sec. 17.3 In order to extend the immunity of speech and debate to the
printing of a committee report, the House in the 91st Congress
authorized by resolution the printing of the report where a federal
court had previously enjoined the Public Printer from such
printing.
On Dec. 14, 1970, Mr. Richard H. Ichord, of Missouri, offered a
resolution (H. Res. 1306) in relation to a report prepared by the
Committee on Internal Security, which he chaired.(9) The
report (H. Rept. No. 91-1607) was entitled ``Limited Survey of
Honoraria Given Guest Speakers for Engagements at Colleges and
Universities.'' Various plaintiffs had argued in federal court that the
printing of the report should be enjoined, since it acted to hinder the
free speech of private citizens. The federal court had enjoined the
Public Printer from publishing the report, but had declined to act
against the committee or its members, since they were immune under the
Speech and Debate Clause of the Constitution.(10)
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9. 116 Cong. Rec. 41355, 91st Cong. 1st Sess.
10. The U.S. District Court of the District of Columbia had held, in
Hentoff v Ichord, 318 F Supp 1175 (D.D.C. 1970), that it could
enjoin the Public Printer from publishing the committee report
which it found hindered the exercise of free speech by
citizens, but that it could not enjoin the committee members
from any action, since they could not be questioned for any
speech or debate in the House. The opinion of the court is
reprinted at 116 Cong. Rec. 41365-68, 91st Cong. 2d Sess., Dec.
14, 1970.
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[[Page 811]]
Mr. Ichord offered House Resolution No. 1306 by which the House
could authorize the printing of the report and thereby prevent the
federal court from enjoining its publication.(11) After
debate on the resolution, the resolution was agreed to by the House and
the committee report was ordered printed.(12)
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11. See the text of the resolution, id. at pp. 41355-57, incorporating
the history of the preparation of the report and the history of
the court case. See also Mr. Ichord's remarks, id. at pp.
41358-64, for his analysis of the constitutional issues
involved.
12. Id. at p. 41372.
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Disclosure of Classified Material (``Pentagon Papers'')--Immunity of
Legislative Aide
Sec. 17.4 Where a Senator convened a subcommittee meeting to read into
the record of the meeting portions of a classified Defense
Department study (``Pentagon Papers'') and then arranged for
private republication of the study, an aide who assisted him in
those activities was held by the Supreme Court not immune from
grand jury questioning.(13)
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13. Gravel v U.S., 408 U.S. 606 (1972). Senator Maurice R. Gravel
(Alaska) had intervened to quash grand jury subpenas directed
to his aide. The Supreme Court reviewed and modified protective
orders issued by a U.S. District Court, U.S. v Doe, 332 F Supp
930 (D. Mass. 1971) and by a U.S. Court of Appeals, U.S. v Doe,
455 F2d 753 (1st Cir. 1972), which orders had limited the
questions which could be asked of the Senator's aide (Dr.
Leonard Rodberg).
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On the night of June 29, 1971, Senator Gravel, Chairman of the
Subcommittee on Buildings and Grounds of the Senate Public Works
Committee, convened a meeting of the subcommittee at which he read
extensively from a classified Defense Department study on the history
of United States policy during the Vietnam conflict. He then placed the
entire 47 volumes of the study in the public record of the committee
meeting.(14) He then arranged
[[Page 812]]
with a private publisher for republication of the text of the
study.(15) One of Senator Gravel's aides, Dr. Leonard
Rodberg, had assisted Senator Gravel in preparing for and conducting
the hearing, and in arranging for private republication of the
study.(16)
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14. 408 U.S. at 609. See Senator Gravel's subsequent explanation of his
actions at the subcommittee meeting, 117 Cong. Rec. 23578, 92d
Cong. 1st Sess., July 6, 1971. The text of Senator Gravel's
statement made at the subcommittee meeting immediately prior to
reading the study was reprinted at 117 Cong. Rec. 23723, 92d
Cong. 1st Sess., July 7, 1971.
The Supreme Court held, in New York Times Co. v U.S., 403
U.S. 713 (1971), that the government could not restrain the
press from publishing the study read by Senator Gravel,
commonly termed the ``Pentagon Papers.''
15. See 408 U.S. at 609, 610.
16. See 408 U.S. at 609-611.
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The Justice Department initiated a grand jury investigation into
possible criminal conduct in relation to the reading and republication
of the study, and subpenaed Dr. Rodberg to testify before the grand
jury.(17)
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17. 408 U.S. at 608. See the remarks of Senator Sam Ervin (N.C.) on
Sept. 20, 1972, analyzing the Justice Department inquiry and
subpenas, and maintaining that the investigation was violating
the immunity of Congressmen and their aides for speech and
debate and legislative activities, 117 Cong. Rec. 32444-49, 92d
Cong. 1st Sess. Senator Ervin inserted into the Record relevant
court decisions on the Speech and Debate Clause, id. at pp.
32449-62 (Tenney v Brandhove, 341 U.S. 367 [1951]; Kilbourn v
Thompson, 103 U.S. 168 [1880]; U.S. v Johnson, 383 U.S. 169
[1966]; Powell v McCormack, 395 U.S. 386 [1969]; Cochran v
Couzens, 42 F2d 783 [1930], cert. denied, 282 U.S. 874 [1930];
Dombrowski v Eastland, 387 U.S. 82 [1967]).
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Senator Gravel intervened in the proceedings in order to quash the
subpenas to Dr. Rodberg and others, and in order to require the
government to specify the questions to be asked of Dr.
Rodberg.(18) A United States District Court (19)
and then a United States Court of Appeals (20) issued
protective orders restricting the questions which could be asked of Dr.
Rodberg.
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18. For a compilation of legal motions, letters, affidavits, and orders
concerning the subpena to Dr. Rodberg, see 117 Cong. Rec.
42752-822, 92d Cong. 1st Sess., Nov. 22, 1971 (extension of
remarks of Senator Gravel).
19. U.S. v Doe, 332 F Supp 930 (D. Mass. 1971).
20. U.S. v Doe, 455 F2d 753 (1st Cir. 1972).
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The Supreme Court agreed with the lower courts' findings that the
arrangements for the unofficial publication of the committee record
were outside the protection of the Clause, but, contrary to those
courts' conclusions, included the Senator and his aide as both
vulnerable to questioning and possible liability regarding those
arrangements. ``While the Speech or Debate Clause recognizes speech,
voting and other legislative acts as exempt from liability that might
otherwise attach,'' the Court stated, ``it does not privilege either
Senator or aide to violate an otherwise valid criminal law in preparing
for or implementing leg
[[Page 813]]
islative acts.'' The Court found the protective orders to be overly
restrictive of the scope of the grand jury inquiry, particularly in not
allowing questions relating to the source of the Pentagon
documents.(1) The Court held that: (1) the Senator's aide
was immune only for legislative acts for which the Senator would be
immune; (2) (2) the arrangement for republication of the
Defense Department study was not protected under the Speech and Debate
Clause; (3) (3) the aide (or the Senator himself) could be
questioned by the grand jury about any criminal third-party conduct or
republication arrangements where the questions did not implicate
legislative action of the Senator.(4)
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1. 408 U.S. at 626-629.
2. 408 U.S. at 621, 622.
3. 408 U.S. at 622, 625, 626.
4. 408 U.S. at 628, 629.
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Sec. 17.5 The Senate adopted a resolution authorizing payment from its
contingent fund of expenses incurred by a Senator as a party in
litigation involving the Speech and Debate Clause of the United
States Constitution, and providing for the appointment of a select
committee to appear as amicus curiae before the United States
Supreme Court and to file a brief on behalf of the Senate in the
action.
On Mar. 23, 1972,(5) the Senate discussed Senate
intervention in the case of Gravel v United States, involving the
Speech and Debate Clause of the Constitution and pending in the Supreme
Court of the United States, Senator Maurice R. Gravel, of Alaska, being
a party thereto. The Senate adopted Senate Resolution 280 and President
pro tempore Allen J. Ellender, of Louisiana, appointed Members of the
Senate pursuant to the resolution:
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5. 118 Cong. Rec. 9902, 9907, 9915, 9920, 9921, 92d Cong. 2d Sess.
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Resolution
Authorizing Senate intervention in the Supreme Court proceedings on the
issue of the scope of article I, section 6, the so-called speech
and debate clause of the Constitution
Whereas the Supreme Court of the United States on Tuesday,
February 22, 1972, issued writs of certiorari in the case of Gravel
against United States; and
Whereas this case involves the activities of the junior Senator
from Alaska, Mr. Gravel; and
Whereas in deciding this case the Supreme Court will consider
the scope and meaning of the protection provided to Members of
Congress by article I, section 6, of the United States
Constitution, commonly referred to as the
[[Page 814]]
``Speech or Debate'' clause, including the application of this
provision to Senators, their aides, assistants, and associates, and
the types of activity protected; and
Whereas this case necessarily involves the right of the Senate
to govern its own internal affairs and to determine the relevancy
and propriety of activity and the scope of a Senator's duties under
the rules of the Senate and the Constitution; and
Whereas this case therefore concerns the constitutional
separation of powers between legislative branch and executive and
judicial branches of Government; and
Whereas a decision in this case may impair the constitutional
independence and prerogatives of every individual Senator, and of
the Senate as a whole; and
Whereas the United States Senate has a responsibility to insure
that its interests are properly and completely represented before
the Supreme Court: Now, therefore, be it
Resolved, That the President pro tempore of the Senate is
hereby authorized to appoint a bipartisan committee of Senators to
seek permission to appear as amicus curiae before the Supreme Court
and to file a brief on behalf of the United States Senate; and be
it further
Resolved, That the members of this bipartisan committee shall
be charged with the responsibility to establish limited legal fees
for services rendered by outside counsel to the committee, to be
paid by the Senate pursuant to these resolutions; be it further
Resolved, That any expenses incurred by the Committee pursuant
to these resolutions including the expense incurred by the Junior
Senator from Alaska as a party in the above mentioned litigation in
printing records and briefs for the Supreme Court shall be paid
from the contingent fund of the Senate on vouchers authorized and
signed by the President pro tempore of the Senate and approved by
the Committee on Rules and Administration; be it further
Resolved, That these resolutions do not express any judgment of
the action that precipitated these proceedings; and be it further
Resolved, That the Secretary of the Senate transmit a copy of
these resolutions to the Supreme Court.
Mr. [Michael J.] Mansfield [of Montana]: Mr. President, there
are some recommendations relative to the counsel to be appointed
from the Democratic side and three associate counsel to assist the
chief counsel. Would the Chair make those nominations at this time
on behalf of the majority?
The President Pro Tempore: Under the resolution just agreed to,
the Chair appoints the Senator from North Carolina (Mr. Ervin)
chief counsel, and the Senator from Mississippi (Mr. Eastland), the
Senator from Rhode Island (Mr. Pastore), and the Senator from
Georgia (Mr. Talmadge) as associate counsel.
The Presiding Officer (Mr. Stafford) subsequently stated: The
Chair, on behalf of the President pro tempore, under Senate
Resolution 280, makes the following appointments to the committee
established by that resolution: The Senator from New Hampshire Mr.
Cotton), the Senator from Colorado
[[Page 815]]
(Mr. Dominick), the Senator from Maryland (Mr. Mathias), and the
Senator from Ohio (Mr. Saxbe).