[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[D. Immunities of Members and Aides]
[Â§ 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)
---------------------------------------------------------------------------
 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:
---------------------------------------------------------------------------
 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).



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