On August 17, 1981, the plaintiffs filed a memorandum in opposition to Mr. Moss' motion for a stay arguing that Mr. Moss was unlikely to prevail on appeal, that he would not be irreparably injured if the stay was not granted, and that they would be substantially prejudiced if the stay was granted. Additionally, the plaintiffs noted that there was a question as to whether the district court's May 6th order was in fact appealable, since ordinarily an order denying a motion to quash a subpoena duces tecum was not. On August 19, 1981, the court of appeals granted the plaintiffs' motion to dismiss the appeal. In a two sentence order the court held that it lacked jurisdiction since the district court's ruling on the motion to quash was not an appealable order.

On August 26, 1981, Mr. Moss was deposed in Sacramento at which time he refused to answer numerous questions propounded by the plaintiffs' counsel.

Status-The case, as it relates to Mr. Moss' deposition, is pending in the U.S. District Court for the Eastern District of California. United States v. Peoples Temple of the Disciples of Christ

Misc. No. 81-0066 (D.D.C.)

On January 22, 1979, the United States filed an action in the U.S. District Court for the Northern District of California against the Peoples Temple of the Disciples of Christ ("Peoples Temple") and others, seeking to recover what it claimed were the costs of taking certain actions in the aftermath of the tragedy near Jonestown, Guyana in November 1978. [United States v. Peoples Temple of the Disciples of Christ, Civil Action No. C-79-0126 (N.D. Cal.)] In essence, the Government sought to recover monies expended in connection with the return to the United States (and identification and burial) of the deceased members of the Temple as well as in the search for survivors. [Complaint, January 22, 1979, ¶¶ 9, 11] On March 5, 1981, the defendants in the case, utilizing foreign deposition procedures, served a Deposition Subpoena To Testify or Produce Documents or Things on Representative Clement J. Zablocki, Chairman of the Committee on Foreign Affairs of the U.S. House of Representatives. The subpoena called for Rep. Zablocki to appear at a Washington, D.C. law office on March 17, and to bring with him hundreds of documents collected, created, or obtained by the Committee in the course of an investigation it had conducted into the circumstances surrounding the death of Representative Leo J. Ryan during his visit to Jonestown in 1978. Specifically, the subpoena requested that Rep. Zablocki produce:

(1) Nine hundred and two (902) documents, including cables, correspondence, and related materials obtained from the Department of State by the Staff Investigative Group To The Committee Of Foreign Affairs, U.S. House Of Representatives ("the Staff Investigative Group") during their investigation and preparation of the report on "The Assassination of Representative Leo J. Ryan And The Jonestown, Guyana Tragedy ("the investigation");

(2) Any and all materials, documents, and records obtained by the Staff Investigative Group from the Department of Justice, the Federal Bureau of Investigation, the

Central Intelligence Agency, the Federal Communications
Commission, the Department Of Treasury, the U.S. Cus-
toms Service, the Department of Health, Education & Wel-
fare, the Social Security Administration, and the National
Security Agency, relating to the investigation;

(3) The transcript summaries of all interviews conducted
by the Staff Investigative Group during the course of the
investigation including, but not limited to, interviews con-
ducted in Washington, D.C., in California, and in Guyana;
(4) All other documents, transcripts, letters, tapes, and
other pertinent material in the possession, custody and
control of the Staff Investigative Group relating to the in-
vestigation including, but not limited to, a detailed 200
page memo log of certain short wave radio communica-
tions between the PEOPLES TEMPLE facilities in Jones-
town, Guyana and San Francisco, California monitored by
a private citizen ham operator; taped portions of similar
communications monitored by the Federal Communica-
tions Commission; a tape recording reportedly of the voice
of Jim Jones on November 18, 1978 at Jonestown; and cer-
tain other letters and statements from persons interested
in the well-being of friends and relatives who were resi-
dents of Jonestown. [Subpoena, March 5, 1981, Schedule
"A".]

On March 16, 1981, Rep. Zablocki and Clerk of the House Edmund L. Henshaw, Jr. filed a motion to quash the subpoena in the U.S. District Court for the District of Columbia. [Misc. No. 810066] As grounds for their motion, Rep. Zablocki and Mr. Henshaw asserted that the subpoena: (1) called for documents and testimony within the protection of the Speech or Debate Clause of the U.S. Constitution; (2) was burdensome and oppressive; and (3) called for testimony and documents not relevant to the underlying cause of action.

1

In a memorandum accompanying the motion to quash, the General Counsel to the Clerk argued that the testimony and material sought were clearly within the ambit of the Speech or Debate Clause and therefore absolutely protected from disclosure. Pointing out that the Foreign Affairs Committee had issued a public report on its investigation of the Guyana assassination, the General Counsel maintained that the defendant was seeking to "go behind" that report to discover the internal documents used by the Committee in its investigation or to determine the motives for the investigation. According to the General Counsel, this was precisely what the Speech or Debate Clause was designed to prevent, since its main purpose was to preserve the integrity of the legislative process-including the investigative function-and insure the independence of the legislative branch. This could only be achieved, he argued, if Members were completely free of lawsuits and compelled disclosure as witnesses instituted on account of their legislative acts.

The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives], shall not be questioned in any other Place." [art I, §6, c1.1]

The General Counsel also asserted that the subpoena contravened other constitutional provisions regarding the internal deliberations of the House. In particular, he noted that the Publication Clause of the U.S. Constitution 2 separately provides authority for the House to publish its proceedings, including hearings. Under the same authority, he argued, the House is authorized to decide for itself whether to make public all or part of its proceedings-including material obtained in the course of an investigation. This shield to maintain the confidentiality of legislative documents is absolute, the General Counsel contended, and even the decisions on whether and what to publish are protected by the Speech or Debate Clause. Meanwhile, in Federal court in California the defendants moved to have the court order the United States to obtain and produce the documents and materials they sought which were in the custody of the House. At a hearing held on March 20, 1981 U.S. Magistrate F. Steele Langford denied this request from the bench.

On April 6, 1981, the receiver for the defendant Peoples Temple filed an opposition to the motion to quash and a cross motion to compel compliance with the subpoena duces tecum in district court in the District of Columbia. The accompanying memorandum contended that the motion to quash should be denied because: (1) the requested documents were "obviously and directly" relevant to the issues involved in the California action; (2) the Speech or Debate Clause could not be extended to give the United States what amounted to an absolute privilege against discovery in cases where the United States itself filed the lawsuit; and (3) the Publication Clause was not intended to apply to "situations where documents in the exclusive possession of Congress are subpoenaed for use in civil litigation brought by the United States against private parties. [Memorandum in Support of Opposition To Congressional Motion to Quash..., April 6, 1981, at 5]

With respect to the relevance of the requested documents, the memorandum maintained that they were "inextricably bound up with the claims and defenses asserted by the parties in the pending California action." [Id. at 6]

Such documents are directly relevant, for example, to
such issues as why the United States undertook the rescue
operation, whether it had any genuine intent to be paid,
therefore, and whether it in fact played some part, howev-
er inadvertently, of precipitating the tragedy. As such,
these documents are in fact at the heart of the controversy
and, absent some lawfully-recognized privilege, clearly dis-
coverable. Therefore, without the benefit of knowing the
actual content of the materials possessed by the Congress,
the Receiver maintains that any and all materials perti-
nent to the investigation "go the heart of the lawsuit"..
[Id.]

With respect to the Speech or Debate Clause, the memorandum argued that it was usually held to be applicable only in situations.

2 The Publication Clause of the U.S. Constitution provides that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require secrecy . . ." [art. I, §5, cl. 3]

where a representative is a target for criminal or civil liability, or when the executive branch Seeks to compel testimony concerning speech or debate." [Id. at 7] Although the memorandum admitted that the Clause protected Members of Congress from lawsuits brought against them directly, it asserted that "no case has ever held that such is tantamount to a blanket privilege against disclosing relevant evidence in a civil suit to which they are not parties in their individual capacities, particularly when the action has been brought by the executive branch itself." [Id. at 8]

Finally, with respect to the Publication Clause, the memorandum contended that it did not give Congress the power to refuse to produce records of its proceedings. Literally, the memorandum asserted, the Clause only gives Congress the power to determine that certain records of Congressional proceedings should be omitted from the published journal. “Nothing in the express wording gives Congress the power to resist a lawfully-issued judicial subpoena for disclosure of such records." [Id. at 12]

On April 8, 1981, Rep. Zablocki and the Clerk filed a reply memorandum which attempted to answer the three arguments raised by the receiver for Peoples Temple. On the relevance issue, the memorandum maintained that discovery from a coordinate branch of government should not be ordered by a court without a "particularized showing of need", which had not been made in the present case. With regard to the Speech or Debate Clause, the memorandum contended that there was no support in either the literal terms of the Clause or in the case law for the proposition that its applicability was contingent on a Member being a target or a party in an action. Moreover, the memorandum asserted, the Clause provided protection in civil as well as criminal actions, and against actions brought by either private individuals or the Executive branch. In short, the reply argued, the privilege afforded was absolute. Finally, the memorandum asserted that the case law demonstrated that the Publication Clause did bar discovery, citing United States v. Ehrlichman, 389 F. Supp. 95 (D.D.C. 1974).

In conclusion, Rep. Zablocki and the Clerk made the additional argument that separation of powers concerns required quashing the subpoena. In their view, as a matter of comity, the court should decline to order a coordinate branch to produce documents, particularly when the requesting party had made no detailed showing that disclosure was necessary.

On April 10, 1981, the motion to quash was argued and taken under advisement. Later that day, District Judge Aubrey E. Robinson, Jr. issued an order granting the motion and formally quashing the subpoena. In a memorandum also filed on April 10, Judge Robinson held that, even accepting the relevance of the subpoenaed documents to the litigation, they clearly fell within the parameters of the Speech or Debate Clause and their disclosure was barred. [United States v. Peoples Temple of the Disciples of Christ, et al., 515 F. Supp. 246 (D.D.C. April 10, 1981)]

Judge Robinson stated:

Defendants misconstrue the purpose of the Speech or Debate Clause and the relevant case law. While it is true that the primary purpose of the Clause involves precluding

direct hardship to the legislative branch or any of its mem-
bers, a broader purpose is also served. Separation of
Powers principles dictate that, once it is determined that
Congress or any of its members have acted within the le-
gitimate legislative sphere, neither the Executive Branch
nor the Judiciary shall interfere with legislative discre-
tion. As the Supreme Court stated in Eastland [v. United
States Serviceman's Fund], 421 U.S. [491,] 503 [(1975)]

The applicability of the Clause to private civil
actions is supported by the absoluteness of the
term "shall not be questioned", and the sweep of
the term "in any other Place." In reading the
Clause broadly we have said that legislators
acting within the sphere of legitimate legislative
activity "should be protected not only from the
consequences of the litigation's results but also
from the burden of defending themselves..."
[W]hether a criminal action is instituted by the
Executive Branch, or a civil action is brought by
private parties, judicial power is still brought to
bear on Members of Congress and legislative
independence is imperiled. We reaffirm that once
it is determined that Members are acting within
the legitimate legislative sphere the Speech or
Debate Clause is an absolute bar to interference.
(emphasis added)

The Supreme Court has rarely spoken with greater clar-
ity. Once it is determined (as it has been in the instant
case) that the Movants' actions fall within the "legitimate
legislative sphere," judicial inquiry is at an end. Other-
wise, Members of Congress conducting investigations
would be forced to consider at every turn whether evi-
dence received pursuant to the investigation would subse-
quently have to be produced in court. This would "imper-
il" the legislative independence protected by the Clause.
Moreover, producing documents and testifying at a deposi-
tion would certainly disrupt the functioning of a Member
of Congress. Movants' Motion to Quash must be granted.
[515 F. Supp. at 248-9]

Status-The action involving the deposition subpoena has been concluded and the case-in-chief in California was settled and a stipulation of dismissal filed on September 1, 1981.

The complete text of the April 10, 1981 memorandum of the district court is printed in the "Decisions" section of this report at page 473.

2. Criminal Proceedings:

United States v. Roth

Criminal Case Nos. M-4347-81, M-4348-81, M-4349-81, M-4353-81, M-4354-81, and M-4355-81 (Sup. Ct. D.C.). On April 23, 1981, the Separation of Powers Subcommittee of the Senate Judiciary Committee held a hearing on S. 158, a bill "to