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question the power of the United States to try Johnson on the conflict-of-interest counts, and it authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated.?
Three members of the Court would have affirmed Johnson's conviction. Mr. Chief Justice Warren, joined by MR. JUSTICE Douglas and MR. JUSTICE BRENNAN, concurring in part and dissenting in part, stated:
“After reading the record, it is my conclusion that the Court of Appeals erred in determining that the evidence concerning the speech infected the jury's judgment on the [conflict-of-interest] counts. The evidence amply supports the prosecution's theory and the jury's verdict on these countsthat the respondent received over $20,000 for attempting to have the Justice Department dismiss an indictment against his [present] co-conspirators, without disclosing his role in the enterprise. This is the classic example of a violation of $ 281 by a Member of the Congress. . The arguments of government counsel and the court's instructions separating the conspiracy from the substantive counts seem unimpeachable. The speech was a minor part of the prosecution. There was nothing in it to inflame the jury and the respondent pointed with pride to it as evidence of his vigilance in protecting the financial institutions of his State. The record further reveals that the trial participants were well aware that a finding of criminality on one count did not authorize sim
? On remand, the District Court dismissed the conspiracy count without objection from the Government. Johnson was then found guilty on the remaining counts, and his conviction was affirmed. United States v. Johnson, 419 F. 2d 56 (CA4 1969), cert. denied, 397 U. S. 1010 (1970).
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ilar conclusions as to other counts, and I believe that this salutary principle was conscientiously followed. Therefore, I would affirm the convictions on the substantive counts.” Id., at 188–189. (Foot
note omitted.) Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.
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. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things "generally done in a
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session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson, supra, at 204, or things "said or done by him, as a representative, in the exercise of the functions of that office,” Coffin v. Coffin, 4 Mass. 1, 27 (1808).
(b) Appellee argues, however, that in Johnson we expressed a broader test for the coverage of the Speech or Debate Clause. It is urged that we held that the Clause protected from executive or judicial inquiry all conduct “related to the due functioning of the legislative process.” It is true that the quoted words appear in the Johnson opinion, but appellee takes them out of context; in context they reflect a quite different meaning from that now urged. Although the indictment against Johnson contained eight counts, only one count was challenged before this Court as in violation of the Speech or Debate Clause. The other seven counts concerned Johnson's attempts to influence staff members of the Justice Department to dismiss pending prosecutions. In explaining why those counts were not before the Court, Mr. Justice Harlan wrote:
“No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.” 383 U. S.,
at 172. (Emphasis added; footnote omitted.) In stating that those things "in no wise related to the due functioning of the legislative process” were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that “related” to the Opinion of the Court
office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation were protected.
Nor can we give Kilbourn a more expansive interpretation. In citing with approval, 103 U. S., at 203, the language of Chief Justice Parsons of the Supreme Judicial Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1 (1808), the Kilbourn Court gave no thought to enlarging "legislative acts” to include illicit conduct outside the House. The Coffin language is:
"[The Massachusetts legislative privilege] ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' cham
ber.” Id., at 27 (emphasis added). It is suggested that in citing these words, which were also quoted with approval in Tenney v. Brandhove, 341 U. S. 367, 373–374 (1951), the Court was interpreting the sweep of the Speech or Debate Clause to be broader than Johnson seemed to indicate or than we today hold. Emphasis is placed on the statement that “there are
cases in which [a Member] is entitled to this privilege, when not within the walls of the representatives' chamber.” But the context of Coffin v. Coffin indicates that in this passage Chief Justice Parsons was referring only to legislative acts, such as committee meetings, which take place outside the physical confines of the legislative chamber. In another passage, the meaning is clarified:
“If a member ... be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member, is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought therefore to be protected from civil or criminal prosecutions for every thing said or done by him in the exercise of his functions, as a representative in committee, either in debating, in assenting to, or in draughting a report.” 8 4 Mass.,
at 28. In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. In every case thus far before this Court, the Speech or Debate Clause has been limited to an act which was
8 It is especially important to note that in Coffin v. Coffin, the court concluded that the defendant was not executing the duties of his office when he allegedly defamed the plaintiff and was hence not entitled to the claim of privilege.
9 The "concession” MR. JUSTICE BRENNAN seeks to attribute to the Government lawyer who argued the case in the District Court reveals no more than the failure of the arguments in that court to focus on the distinction between true legislative acts and the myriad related political functions of a Member of Congress. The "concession” came in response to a question clearly revealing that the District Court treated as protected all acts "related” to the office rather than limiting the protection to what is "said or done by him, as a representative, in the exercise of the functions of that office."