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MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
The question presented by this case is not whether bribery or other offensive conduct on the part of Members of Congress must or should go unpunished. No one suggests that the Speech or Debate Clause insulates Senators and Congressmen from accountability for their misdeeds. Indeed, the Clause itself is but one of several constitutional provisions that make clear that Congress has broad powers to try and punish its Members:
“[T]he Constitution expressly empowers each House to punish its own members for disorderly behavior. We see no reason to doubt that this punishment may in a proper case be imprisonment, and that it may be for refusal to obey some rule on that subject made by the House for the preservation of order.
"So, also, the penalty which each House is authorized to inflict in order to compel the attendance of absent members may be imprisonment, and this may be for a violation of some order or standing rule on that subject.
"Each House is by the Constitution made the judge of the election and qualification of its members. In deciding on these it has an undoubted right to examine witnesses and inspect papers, subject to the usual rights of witnesses in such cases; and it may be that a witness would be subject to like punishment at the hands of the body engaged in trying a contested election, for refusing to testify, that he would if the case were pending before a court of judicature.
"The House of Representatives has the sole right to impeach officers of the government, and the Senate to try them. Where the question of such impeachment is before either body acting in its ap
propriate sphere on that subject, we see no reason
v. Thompson, 103 U. S. 168, 189–190 (1881).
The majority disposes of this issue by distinguishing between promise and performance. Even if a Senator or Congressman may not be prosecuted for a corrupt legislative act, the Speech or Debate Clause does not prohibit prosecution for a corrupt promise to perform that act. If a Member of Congress promises to vote for or against a bill in return for money, casts his vote in accordance with the promise and accepts payment, the majority's view is that even though he may not be prosecuted for voting as he did, although the vote was corrupt, the executive may prosecute and the judiciary may try him for the corrupt agreement or for taking the money either under a narrowly drawn statute or one of general application. This distinction between a promise and an act will not withstand scrutiny in terms of the values that the Speech or Debate Clause was designed to secure.
The majority agrees that in order to assure the independence and integrity of the legislature and to reinforce the separation of powers so deliberately established by the Founders, the Speech or Debate Clause prevents a legislative act from being the basis of criminal or civil liability. Concededly, a Member of Congress may not be prosecuted or sued for making a speech or voting in
committee or on the floor, whether he was paid to do so or not. The majority also appears to embrace the holding in United States v. Johnson, 383 U. S. 169 (1966), that a Member of Congress could not be convicted of a conspiracy to defraud the Government where the purposes or motives underlying his conduct as a legislator are called into question. If one follows the mode of the majority's present analysis, the prosecution in Johnson was not for speaking, voting, or performing any other legislative act in a particular manner; the criminal act charged was a conspiracy to defraud the United States anterior to any legislative performance. To prove the crime, however, the prosecution introduced evidence that money was paid to make a speech, among other things, and that the speech was made. This, the Court held, violated the Speech or Debate Clause, because it called into question the motives and purposes underlying Congressman Johnson's performance of his legislative duties.
The same infirmity inheres in the present indictment, which was founded upon two separate statutes. Title 18 U. S. C. § 201 (g) requires proof of a defendant's receipt, or an agreement or attempt to receive, anything of value "for or because of any official act performed or to be performed by him ...." Of course, not all, or even many, official acts would be legislative acts protected by the Speech or Debate Clause; but whatever the act, the Government must identify it to prove its case. are left in no doubt whatsoever, for the official acts expressly charged in the indictment were in respect to “his action, vote and decision on postage rate legislation.” Similarly, there is no basis for arguing that the indictment did not contemplate proof of performance of the act, for the indictment in so many words charged the arrangement was "for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before
him in his official capacity.” (Emphasis added.) 'It is this indictment, not some other charge, that was challenged and dismissed by the District Court. Like that court, I would take the Government at its word: it alleged and intended to prove facts that questioned and impugned the motives and purposes underlying specified legislative acts of the Senator and intended to use these facts as a basis for the conviction of the Senator himself. Thus, taking the charge at face value, the indictment represents an attempt to prosecute and convict a Member of Congress not only for taking money but also for performing a legislative act. Moreover, whatever the proof might be, the indictment on its face charged a corrupt undertaking with respect to the performance of legislative conduct that had already occurred and so, without more, “questioned in some] other Place" the speech and debate of a Member of Congress. Such a charge is precisely the kind that the Senator should not have been called upon to answer if the Speech or Debate Clause is to fulfill its stated purpose.
Insofar as it charged crimes under 18 U. S. C. $ 201 (c)(1), the indictment fares little better. That section requires proof of a corrupt arrangement for the receipt of money and also proof that the arrangement was in return for the defendant “being influenced in his performance of any official act....” Whatever the official act may prove to be, the Government cannot prove its case without calling into question the motives of the Member in performing that act, for it must prove that the Member undertook for money to be influenced in that performance. Clearly, if the Government sought to prove its case against a Member of Congress by evidence of a legislative act, conviction could not survive in the face of the holding in Johnson. But even if an offense under the statute could be established merely by proof of an undertaking to cast a vote, which is not alleged in the indictment or
shown at trial to have taken place one way or the other, the motives of the legislator in performing his duties with respect to the subject matter of the undertaking would nevertheless inevitably be implicated. In charging the offense under § 201 (c)(1), the indictment alleged a corrupt arrangement made in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage legislation which might at any time be pending before him in his official capacity.” Again, I would take the Government at its word: it charged and intended to prove facts that could not fail to implicate Senator Brewster's performance of his legislative duties.*
The use of criminal charges "against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege,” United States v. Johnson, 383 U. S., at 182 (1966), and in applying the privilege "we look particularly to the prophylactic purposes of the clause." Ibid. Let us suppose that the Executive Branch is informed that private interests are paying a Member of Congress to oppose administration-sponsored legislation. The Congressman is chairman of a key committee where a vote is pending. A representative from the Executive Branch informs the Congressman of the allegations against him, hopes the charges are not true, and expresses confidence that the committee will report the bill and that the Member will support it on the floor. The pressure on the Congressmen, corrupt or not, is undeniable. He
*In Gravel v. United States, post, p. 606, it is held that the Speech or Debate Clause does not immunize criminal acts performed in preparation for or execution of a legislative act. But the unprotected acts referred to there were criminal in themselves, provable without reference to a legislative act and without putting the defendant Member to the task of defending the integrity of his legislative performance. Here, as stated, the crime charged necessarily implicates the Member's legislative duties.