Under this theory, the Government maintained, punishment was not "textually committed" to the House, since Rep. Eilberg's behavior allegedly violated a statute as well as a House rule. "When behavior breaks both a rule and a statute," the memorandum contended, "the executive and courts may proceed on the statute." [Id. at 5]

Over the next several months the Government and the Clerk engaged in a debate by memoranda over the relevance and effect of 2 U.S.C. § 46(g). The Clerk interposed three major objections to the applicability of the statute. First, he argued, the statute was no longer valid law, having been superseded in effect by numerous House Administration Committee Orders (issued pursuant to its statutory authority under 2 U.S.C. § 57(a)) which varied the terms of the telephone allowance. Second, he maintained, even if the statute was not a nullity, the Committee had virtually abandoned it for purposes of regulating the telephone allowance. Finally, he contended, the legislative history of 2 U.S.C. § 57 revealed no intent to do anything other than apportion responsibility between the full House and the Committee on House Administration regarding allowances, and did not support the contention that the Government was to be involved in the regulation of the House allowance system.

In rebuttal, the Government asserted that the Committee had exercised its authority under 2 U.S.C. § 57 only to regulate changes in the amounts of allowances, and it did not thereby render the "strictly official" limitation contained in 2 U.S.C. § 46 a nullity.

On June 26, 1980, District Judge Pollak granted the July 1979 motion of Lawrence Corson and Allan Getson, Rep. Eilberg's former law partners, to intervene in the case. In a memorandum accompanying the order, Judge Pollak ruled that the existing parties clearly would not represent the interests of Messrs. Corson and Getson, that they had "an interest in" the property that was the subject of the suit (the distributive share of the law firm's fee paid by Hahnemann), and that their ability to protect that interest would, as a practical matter, be impaired if they were not permitted to intervene.

On July 25, 1980, a second hearing was held in the district court on the Government's motion for a determination of materiality and relevancy of documents called for in the subpoena to be issued to the Clerk of the House. The arguments related to the effect of 2 U.S.C. § 46(g).

On September 30, 1980, Judge Pollak issued an order denying the defendant's motion to dismiss the complaint and granting the Government's motion for a determination of materiality and relevancy of documents. On October 22, 1980, the Judge handed down a 52 page opinion in support of his order. [United States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980)]

With regard to Rep. Eilberg's dismissal motion, the court ruled that even though no statutory cause of action existed to support the first and second claims for relief (seeking Rep. Eilberg's share of the Hahnemann fee based on a theory of either a breach of fiduciary duty or of his implied agency contract with the United States), the Government had an implied Federal common law remedy for a Federal official's alleged fraud. In so holding, Judge

Pollak rejected the defendant's contention that Congress had fashioned a particular statutory remedy for the benefit of the United States as a companion to successfully maintained criminal proceedings (18 U.S.C. § 218), and that this remedy was preemptive, foreclosing the pursuit by the Government of any pre-existing common law remedies for Rep. Eilberg's acknowledged crime. The court concluded:

Reliance on Section 218 to oust the common law cause of action is not only syntactically vulnerable, it imputes to Congress a policy judgment which has no discernible supporting rationale. Section 218 comes into play after a conviction under Section 203 or some cognate provision of Chapter 11 of Title 18. Under Mr. Eilberg's reading of Section 218, a criminal conviction would not make rescission of a tainted grant an available remedy additional to recoupment from the public malefactor of his illicit fee. It would insulate the malefactor from recoupment, in exchange for a remedy of rescission very frequently not directed at the malefactor and whose invocation might in many instances be deemed by the President or his surrogate not to be in the interests of the United States. [507 F. Supp. at 271]

Turning next to Rep. Eilberg's claim that 2 U.S.C. § 95 precluded the use of the False Claims Act to recover for alleged fraudulent reimbursement from the House contingent fund, Judge Pollak, citing United States v. Bramblett, 348 U.S. 503 (1955), ruled that "Congressmen enjoy no general exemption from judicial pursuit for pressing false claims on the federal fisc . . . [and] section 95 should not be read to bar effective implementation of the Act." [Id. at 273] The judge also found that Rep. Eilberg's alleged false certification constituted a false "claim" within the meaning of the False Claims Act.

Finally, Judge Pollak rejected the Clerk's contentions regarding a finding of materiality and relevancy, concluding that the "strictly official" limitation of 2 U.S.C. § 46(g) was still in effect and that the Executive and Judicial branches could determine whether Members' phone calls had been properly charged to the House. After a lengthy review of the legislative history of the relevant provisions, and with particular emphasis on the Senate's concurrence in their enactment, the court concluded:

Against this background of Senate housekeeping legislation, it overwhelms credulity to attribute to the Senate in 1971 the intention, via Section 57 of Title 2, to liberate Members of the House from the statutory directive that chargeable long-distance telephone calls be "strictly official."

I therefore, conclude-on the basis of the legislative record both in the House and in the Senate-that Members of the House are today, and have been at least as far back as 1949, constrained by a statutory norm of "officialness" in determining which credit card telephone calls are properly chargeable to the United States and, per contra,

which the United States is entitled to reimbursement for.
[Id. at 284]

At the same time, the court also rejected the Clerk's more basic argument that even if the "strictly official" limitation still was on the statute books, enforcement through litigation of a statutory norm governing the House's internal housekeeping involved a delegation of House authority to the Executive and the Judicial branches which was incompatible with the separation of powers and political question doctrines. In finding the third claim for relief justiciable, Judge Pollak noted that "the prevailing congressional practice has for several decades been to delegate much of the policing of the behavior of Senators and Representatives to the executive and the judiciary." [Id. at 287] Only those "legislative acts" protected by the Speech or Debate Clause have been immune from inquiry; not all activity incidental to the exercise of these central legislative functions has been so protected, the court ruled.

Although the court held that the Clerk must comply with the subpoena, it concluded the opinion with the following footnote:

The granting of this motion resolves the over-all question of justiciability; it is not to be understood as precluding the Clerk from questioning the "materiality" and/or "relevancy" of particular documents falling within the letter of the United States' broad subpoena. Nor is the granting of the motion to be understood as precluding the Clerk, or Mr. Eilberg, from raising such particularized "Speech or Debate" contentions as may be thought to render some proposed evidence inadmissible. [Id. at 287, n. 13]

Discovery continued in this case into 1981. In March 1981, the Government filed a notice that it intended to take the deposition of the Clerk of the House, and on April 6 a "Deposition Subpoena To Testify or Produce Documents or Things" was served on the Clerk, calling for all billings he maintained relating to Rep. Eilberg's telephone calls from May 1973 to January 1978 and for "any controlling House Regulations pertinent to such billings and records." The subpoena, which also called for testimony from the Clerk or his designated representative, was issued by the U.S. District Court for the District of Columbia [F.S. 81-0126] upon application of the Assistant U.S. Attorney for the Eastern District of Pennsylvania.

On May 11, 1981, the Clerk filed a motion to quash the subpoena in the District of Columbia court. [Misc. No. 81-0105, subsequently changed to Civil Action No. 81-1693] In a memorandum accompanying the motion, the Clerk argued that although the Pennsylvania court had already determined that he would have to comply with such a subpoena (see pages 130-31, supra), the decision "only secondarily considered the larger, more delicate, issue of whether the courts and the executive can regulate legislative telephone usage." [Clerk's Memorandum of Points and Authorities in Support of Motion To Quash, May 11, 1981, at 11] Citing the decision of the U.S. Court of Appeals for the District of Columbia Circuit in United States ex rel. Joseph v. Cannon (see page 113 of Court Pro

ceeding and Actions of Vital Interest to the Congress, September 1, 1982 for a discussion of that case), the Clerk maintained that:

Based on this Circuit's clear recognition that the "False
Claims Act. . . [does not] require the judiciary to develop
rules of behavior for the Legislative Branch."

spect to prescribing what constitutes "official" duties for
congressional staff aides, . . . the False Claims Act does
not provide authority for the executive and the judiciary
to prescribe for the legislature what constitutes "official"
and non-official telephone use. [Clerk's Memorandum at

The Clerk contended that like the situation with respect to the definition of "official" duties for Congressional staff at issue in the Cannon case, there was a complete absence of judicially discoverable and manageable standards for determining "official" telephone use by the Congress. According to the Clerk, not only was there no legislative history concerning the correct parameters of telephone use for legislators, but, on a practical level, in order to classify calls as "official" or "non-official" it would be necessary to review the content of the conversations as well-"a far more problematical and intrusive inquiry than that posed by the Cannon complaint." [Id. at 14] Moreover, said the Clerk, "in terms of sheer volume, such an exercise takes on Herculean proportions where the review entails telephone charges from or to a Congressional office for a five year period." [Id.]

In conclusion, the Clerk put forward three other reasons why the subpoena presented a political question: (1) the issue of proper and reimbursable telephone usage by Members of Congress was "textually committed" to the Legislative branch; (2) it would be impossible to decide whether a call was "official" without an initial policy determination of a kind clearly for nonjudicial discretion; and (3) judicial oversight of daily legislative activities like telephone use, without any Congressionally endorsed standards, would imply a lack of respect for a coordinate branch.

On June 5, 1981, the Government filed its response to the Clerk's motion to quash, maintaining in essence that the Clerk had merely reiterated the identical arguments which had been presented to the Pennsylvania district court and conclusively disposed of by Judge Pollak. In the Government's view, the Pennsylvania decision was "the law of the case" and the Clerk was therefore barred from relitigating the propriety of the subpoena in another district court which was simply acting in aid of the Pennsylvania proceeding (by issuing the subpoena). Furthermore, the Government pointed out that:

the United States had no other choice than to apply to Judge Pollak for a determination of materiality and relevancy. Congress itself established the requirement that such a determination be sought before service of a subpoena. The necessity of a motion to quash is thus obviated. Therefore, Congress' own requirement mandated that Judge Pollak make the determination rather than the District Court for the District of Columbia. In attempting to

relitigate the materiality and relevancy question, the
Clerk is asking this Court to ignore the procedure which
Congress established and which the Clerk has insisted that
the United States follow in seeking the telephone records.
[Response To Motion To Quash, June 5, 1981, at 5]

Even if the District of Columbia court found that it should independently reconsider the issues raised and ruled upon by Judge Pollak, the Government contended, no new arguments had been offered by the Clerk which would justify a different result. According to the Government, the Cannon case relied on by the Clerk was "clearly distinguishable" from the one at bar:

The Cannon court was concerned that the Senate had been unable to reach a consensus on the propriety of using staff in campaigns. In our case the question, if it is a political one, has been resolved by the House and the Congress as a whole by passage of a resolution and enactment of the resolution into law. The statute which creates the "strictly official" limitation on phone calls which may be paid for from the contingent fund is 2 U.S.C. § 46(g). There is not a "Lack of Statutory, Administrative and Case Law" as concerned the Cannon court. . . . Here the House and Senate have grappled with the issue and decided to put in the limitation which was not always there. See Plaintiff's Memorandum on the Viability of 2 U.S.C. § 46(g) and the effect of 2 U.S.C. § 57, attached as Exhibit 7 to the Clerk's Memorandum. To analogize Cannon to our case, it is as if (1) The Committee finally decided that staffers could not be paid for campaign work, (2) The limitations were enacted into statute and (3) a Senator falsely certified to the Clerk that his staffer was entitled to salary for official duties when in fact the Senator knew the staffer's time had been on the campaign and not other congressional duties. The Congress by enacting the statute has committed to the Courts the authority to make the distinctions of whether particular calls were official. This is not an unusual task for the judiciary. The legal standard of "strictly official" and the congressional policy determination of what type of calls should be paid for by the public exist in this case where as the Court found they did not in Cannon . . . There is a judicially discoverable and manageable standard in this case. [Id. at 6-7]

On June 17, 1981, the Clerk filed a reply memorandum disputing the Government's contentions that: (1) the District of Columbia court was barred by the "law of the case" doctrine from deciding the issues raised by the motion to quash; and (2) the Cannon case was distinguishable.

Initially taking issue with the Government's characterization of the facts of the case, the Clerk argued that: (1) the Government had never produced evidence to support the issuance of a subpoena for a coordinate branch's records; (2) the records sought were internal House records, not "simply monthly bills generated by the telephone company," since they contained monthly certifications pro

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