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GRAVEL v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 71-1017. Argued April 19–20, 1972—Decided June 29, 1972*
A United States Senator read to a subcommittee from classified
documents (the Pentagon Papers), which he then placed in the public record. The press reported that the Senator had arranged for private publication of the Papers. A grand jury investigating whether violations of federal law were implicated subpoenaed an aide to the Senator. The Senator, as an intervenor, moved to quash the subpoena, contending that it would violate the Speech or Debate Clause to compel the aide to testify. The District Court denied the motion but limited the questioning of the aide. The Court of Appeals affirmed the denial but modified the protective order, ruling that congressional aides and other persons may not be questioned regarding legislative acts and that, though the private publication was not constitutionally protected, a common-law privilege similar to the privilege of protecting executive officials from liability for libel, see Barr v. Matteo, 360 U. S. 564, barred questioning the aide concerning such publication. Held:
1. The Speech or Debate Clause applies not only to a Member of Congress but also to his aide, insofar as the aide's conduct would be a protected legislative act if performed by the Member himself. Kilbourn v. Thompson, 103 U. S. 168; Dombrowski v. Eastland, 387 U. S. 82; and Powell v. McCormack, 395 U. S. 486, distinguished. Pp. 613–622.
2. The Speech or Debate Clause does not extend immunity to the Senator's aide from testifying before the grand jury about the alleged arrangement for private publication of the Pentagon Papers, as such publication had no connection with the legislative process. Pp. 622-627.
3. The aide, similarly, had no nonconstitutional testimonial privilege from being questioned by the grand jury in connection with its inquiry into whether private publication of the Papers violated federal law. P. 627.
*Together with No. 71-1026, United States v. Gravel, also on certiorari to the same court.
4. The Court of Appeals' protective order was overly broad in enjoining interrogation of the aide with respect to any act, “in the broadest sense,” that he performed within the scope of his employment, since the aide's immunity extended only to legislative acts as to which the Senator would be immune. And the aide may be questioned by the grand jury about the source of classified documents in the Senator's possession, as long as the questioning implicates no legislative act. The order in other respects would suffice if it forbade questioning the aide or others about the conduct or motives of the Senator or his aides at the subcommittee meeting; communications between the Senator and his aides relating to that meeting or any legislative act of the Senator; or steps of the Senator or his aides preparatory for the meeting,
if not relevant to third-party crimes. Pp. 627–629. 455 F. 2d 753, vacated and remanded.
WHITE, J., wrote the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion dissenting in part, post, p. 629. DOUGLAS, J., filed a dissenting opinion, post, p. 633. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 648.
Robert J. Reinstein and Charles L. Fishman argued the cause for petitioner in No. 71-1017 and for respondent in No. 71–1026. With them on the briefs were Harvey A. Silverglate and Alan M. Dershowitz.
Solicitor General Griswold argued the cause for the United States in both cases. With him on the briefs were Assistant Attorney General Mardian, Jerome M. Feit, Allan A. Tuttle, and Robert L. Keuch.
Sam J. Ervin, Jr., and William B. Saxbe argued the cause for the Senate of the United States as amicus curiae. With them on the brief were James 0. Eastland, John 0. Pastore, Herman E. Talmadge, Norris Cotton, Peter H. Dominick, Charles McC. Mathias, Jr., Philip B. Kurland, and Edward I. Rothschild.
Briefs of amici curiae were filed by Melvin L. Wulf and Sanford Jay Rosen for the American Civil Liberties
Opinion of the Court
Union; by Frank B. Frederick and Henry Paul Monaghan for the Unitarian Universalist Association; and by Morton Stavis and Doris Peterson for Leonard S. Rodberg.
Opinion of the Court by MR. JUSTICE WHITE, announced by MR. JUSTICE BLACKMUN.
These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top SecretSensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U. S. C. $ 641), the gathering and transmitting of national defense information (18 U. S. C. § 793), the concealment or removal of public records or documents (18 U. S. C. $ 2071), and conspiracy to commit such offenses and to defraud the United States (18 U. S. C. $ 371).
Among the witnesses subpoenaed were Leonard S. Rodberg, an assistant to Senator Mike Gravel of Alaska and a resident fellow at the Institute of Policy Studies, and Howard Webber, Director of M. I. T. Press. Senator Gravel, as intervenor, filed motions to quash the
1 The District Court permitted Senator Gravel to intervene in the proceeding on Dr. Rodberg's motion to quash the subpoena ordering his appearance before the grand jury and accepted motions from Gravel to quash the subpoena and to specify the exact nature of the questions to be asked Rodberg. The Government contested Gravel's standing to appeal the trial court's disposition of these motions on the ground that, had the subpoena been directed to the Senator, he could not have appealed from a denial of a motion to quash without first refusing to comply with the subpoena and being held in contempt. United States v. Ryan, 402 U. S. 530 (1971); Cobbledick v. United States, 309 U. S. 323 (1940). The Court of
subpoenas and to require the Government to specify the particular questions to be addressed to Rodberg.? He asserted that requiring these witnesses to appear and testify would violate his privilege under the Speech or Debate Clause of the United States Constitution, Art. I, $ 6, cl. 1.
It appeared that on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator's staff earlier in the day and assisted Gravel in preparing for and conducting the hearing. Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon
Appeals, United States v. Doe, 455 F. 2d 753, 756–757 (CA1 1972), held that because the subpoena was directed to third parties, who could not be counted on to risk contempt to protect intervenor's rights, Gravel might be "powerless to avert the mischief of the order" if not permitted to appeal, citing Perlman v. United States, 247 U. S. 7, 13 (1918). The United States does not here challenge the propriety of the appeal.
2 Dr. Rodberg, who filed his own motion to quash the subpoena directing his appearance and testimony, appeared as amicus curiae both in the Court of Appeals and this Court. Technically, Rodberg states, he is a party to No. 71-1026, insofar as the Government appeals from the protective order entered by the District Court. However, since Gravel intervened, Rodberg does not press the point. Brief of Leonard S. Rodberg as Amicus Curiae 2 n. 2.
3 The District Court found “that ‘as personal assistant to movant [Gravel], Dr. Rodberg assisted movant in preparing for disclosure and subsequently disclosing to movant's colleagues and constituents, at a hearing of the Senate Subcommittee on Public Buildings and Grounds, the contents of the so-called “Pentagon Papers," which were critical of the Executive's conduct in the field of foreign relations." United States v. Doe, 332 F. Supp. 930, 932 (Mass. 1971).
Press - and that members of Gravel's staff had talked with Webber as editor of M. I. T. Press.5
The District Court overruled the motions to quash and to specify questions but entered an order proscribing certain categories of questions. United States v. Doe, 332 F. Supp. 930 (Mass. 1971). The Government's contention that for purposes of applying the Speech or Debate Clause the courts were free to inquire into the regularity of the subcommittee meeting was rejected. Because the Clause protected all legislative
4 Beacon Press is a division of the Unitarian Universalist Association, which appeared here as amicus curiae in support of the position taken by Senator Gravel.
5 Gravel so alleged in his motion to intervene in the Webber matter and to quash the subpoena ordering Webber to appear and testify. App. 15–18.
6 The Government maintained that Congress does not enjoy unlimited power to conduct business and that judicial review has often been exercised to curb extra-legislative incursions by legislative committees, citing Watkins v. United States, 354 U. S. 178 (1957); McGrain v. Daugherty, 273 U. S. 135 (1927); Hentoff v. Ichord, 318 F. Supp. 1175 (DC 1970), at least where such incursions are unrelated to a legitimate legislative purpose. It was alleged that Gravel hąd “convened a special, unauthorized, and untimely meeting of the Senate Subcommittee on Public Works (at midnight on June 29, 1971), for the purpose of reading the documents and thereafter placed all unread portions in the subcommittee record, with Dr. Rodberg soliciting publication following the meeting.” App. 9. The District Court rejected the contention: "Senator Gravel has suggested that the availability of funds for the construction and improvement of public buildings and grounds has been affected by the necessary costs of the war in Vietnam and that therefore the development and conduct of the war is properly within the concern of his subcommittee. The court rejects the Government's argument without detailed consideration of the merits of the Senator's position, on the basis of the general rule restricting judicial inquiry into matters of legislative purpose and operations." United States v. Doe, 332 F. Supp., at 935. Cases such as Watkins, supra, were distinguished on the ground that they concerned the power of Congress under the Constitution: "It has not been suggested