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parties. The opinion identified and thoroughly considered
ples embodied in the Constitution. [Id. at 5-6] Turning to the Clerk's argument that "law of the case" doctrine was inapplicable because Judge Pollak's decision was neither final nor appealable, Judge Flannery noted that the doctrine did not require, as a precondition of its application, the issuance of a final, appealable judgment, resolving all rights and liabilities of the parties. Instead, he maintained, "seeking to minimize expenditure of judicial resources and energy on matters already decided, the doctrine is triggered once a final decision is made on a particular issue.” [Id. at 6] The fact that the Clerk was not a party to the Pennsylvania case and could not appeal Judge Pollak's decision also did not sway the court:
The Clerk does not provide any precedent which holds that
n. 2] With respect to the implications of the Cannon case, Judge Flannery agreed with the Government that it was distinguishable from the case at bar, noting that in section 46(g) Judge Pollak found "a specific statutorily prescribed standard for Judicial assessment of the propriety of Representatives' phone calls, whereas the court in Cannon could perceive no coherent Congressional command concerning the legality of employing personnel in reelection campaigns." [Id. at 9)
Finally, with respect to intervenor Rep. Eilberg's Speech or Debate Clause argument, Judge Flannery held that while Judge Pollak's opinion did not expressly analyze whether Rep. Eilberg's rights would be violated by the Government's investigation into the telephone records, it was clear that the Pennsylvania court presumed that the simple subpoena of the documents could not contravene the Congressman's constitutional interests."[T]he Speech or Debate Clause may accord Representative Eilberg rights to exclude
particular documents from evidence but it in no way curtails the power of the United States to attain these records through otherwise legitimate judicial processess.” [Id. at 11]
On November 10, 1981, Rep. Eilberg filed a notice of appeal of Judge Flannery's October 19th order to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 81-2205]
On November 12, 1981, Rep. Eilberg filed a motion in the district court to stay the Clerk's deposition and for a protective order pending the disposition of his appeal. At a status call held the same day, this motion, along with a motion by the Clerk for section 1292(b) certification, was argued before Judge Flannery and denied. (The judge filed a formal order reflecting these denials on November 17.) Later on November 12, the Deputy Clerk's deposition was held and virtually all the requested documents were supplied to the Government.
On November 23, 1981, a stipulation was entered into between Rep. Eilberg and the Government that the pending appeal would be dismissed, and was approved by Judge Flannery. On February 25, 1982, pursuant to this stipulation, the appeals court dismissed the appeal and terminated the docket.
Other than limited discovery, there was scant docketed activity in the case-in-chief in the district court in Pennsylvania after Judge Pollak's October 22, 1980 opinion denying Rep. Eilberg's motion to dismiss the complaint. As noted above, the focus of the litigation during much of 1981 was shifted to the district court in the District of Columbia where the Government's subpoena to the Clerk of the House was being litigated. While this was occurring, on October 8, 1981, Rep. Eilberg asked the Pennsylvania court for a protective order against his responding to the Government's interrogatories and against his interrogation at deposition. The basis of his request, once again, was his asserted privilege under the Speech or Debate Clause. Alternatively, Rep. Eilberg sought a deferral of a decision on the Government's entitlement to discovery until after the District of Columbia proceedings were concluded.
On November 25, 1981, the Government filed a reply to Rep. Eilberg's motion for a protective order, noting that Judge Flannery had issued his ruling in the District of Columbia court on October 197 and that the requested discovery had subsequently gone for ward. Because of this, the Government pointed out, Rep. Eilberg's alternative request for deferral of discovery was moot. With respect to the Speech or Debate Clause argument, the Government again contended that it was “completely without foundation.” Once more citing In Re: Grand Jury Investigation, supra, the Government maintained that “a congressman may be required to testify in order to vindicate what he believes to be a valid constitutional right-the Speech or Debate Clause privilege.” [Reply of Plaintiff United States To Defendant Eilberg's Motion for Protective Order, November 25, 1981, at 2-3.]
On March 31, 1982, Judge Pollak filed a memorandum denying Rep. Eilberg's motion for a protective order against responding to interrogatories and being deposed. [United States v. Eilberg, 536 F. Supp. 514 (E.D. Pa. 1982.)] Relying on the Third Circuit's decision in In Re: Grand Jury Investigation, supra, Judge Pollak found that the "questions put by the plaintiff in the instant interrogatories seek information about that category of 'personal or unofficial calls' which the Court of Appeals characterized as unprotected, and I can see no reason why that characterization should not control the outcome of this dispute." [536 F. Supp. at 516] While Judge Pollak acknowledged that the proposed deposition might bring into play the testimonial aspect of the Speech or Debate Clause privilege (as opposed to the use immunity aspect), he stated that Rep. Eilberg could challenge any particular question which contravened the Clause by invoking the privilege. Judge Pollak held, however, that applicable precedent simply did not entitle defendant to the far more sweeping remedy-of refusing entirely to submit to questioning-for which he here contends." [Id.]
On May 19, 1982, the Government, having failed to get Rep. Eilberg to answer the interrogatories or to schedule a deposition, filed a motion to compel. In addition, the Government asked that sanctions be imposed by the court for failure to comply, and specifically suggested that a judgment of default against the defendant would be appropriate.
On June 22, 1982, Judge Pollak issued an order directing Rep. Eilberg to file answers to the Government's first set of interrogatories within seven days. The order also stated that if the defendant failed to comply with its terms, the court would entertain a motion for a judgment against him by default.
On June 29, 1982, Rep. Eilberg filed his answers to the first set of interrogatories, refusing to provide the information requested by each question on the grounds of his asserted privileges under the Fifth Amendment (against self-incrimination) and the Speech or Debate Clause.
On July 20, 1982, the Government filed a motion for a default judgment against Rep. Eilberg for failure to comply with the court's June 22nd order. In a supporting memorandum, the Government pointed out that the Fifth Amendment claim had been raised for the first time by Rep. Eilberg only in his answers to the interrogatories. The Government argued that this indicated "flagrant bad faith," particularly since the plea agreement in Rep. Eilberg's earlier criminal case specifically barred further prosecution while preserving the Government's right to a civil remedy. Furthermore, the Government asserted, even under the "broadest conceivable application;" of the Speech or Debate Clause, the interrogatories at issue would not be covered.
On August 2, 1982, Rep. Eilberg filed a response to the Government's motion for a default judgment. First addressing the Fifth Amendment issue, the defendant argued that the plea bargain agreement did not offer him complete protection from further prosecution and therefore his assertion of the privilege was proper. He explained:
The referenced language of the plea agreement does not
This agreement is a type of informal transactional immunity, not use and derivative use immunity, and is subject to interpretation as to the particular transactions embraced within its terms. Absent use and derivative use immunity, Mr. Eilberg's responses could arguably be used in a criminal tax prosecution, not for his unauthorized use of the facilities, but his failure to properly report income to him derived therefrom. Mr. Eilberg has no guarantee that a federal prosecutor in another jurisdiction will interpret "unauthorized use" as embracing "false certifications in determining the scope of informal transactional immunity conferred by the agreement. Mr. Eilberg need only point to the charges brought in Criminal No. 78-311 to illustrate the hairline distinctions drawn by prosecutors bent on bringing a criminal prosecution i.e. the division of the 18 U.S.C. § 203(a) prosecution into two counts based on "receipt” and “agreement to receive" impermissible compensation; a like distinction could be drawn between unauthorized use and conspiracy. Further, the agreement does not expressly foreclose use by state prosecutors of Mr. Eilberg's responses for any offense that might have been committed under, for example, the Pennsylvania Crimes Code for theft of services. [Defendant Eilberg's Memorandum of
Law Regarding Sanction of Default, August 2, 1982, at 3-4] Focusing next on the Speech or Debate issue, Rep. Eilberg maintained that Judge Pollak had ruled that the privilege could be asserted on a question by question basis. In this case, he claimed, the eleven questions comprising the first set of interrogatories constituted exactly "the type of 'hostile questioning that the speech or debate clause, in its testimonial component, was intended to prevent.” (Id. at 5] Rep. Eilberg insisted that the questions all sought detailed information on "what he did, when he did it, what he knew and who he discussed it with concerning the use of his telephone while he was a member of Congress. This questioning is focused solely on the Government's efforts to demonstrate that she knowingly certified personal calls as official congressional busi
(Id. at 6] Since the Government was already fully aware of his telephone numbers and credit cards, Rep. Eilberg termed questioning about those items "purely harassment.”
On August 18, 1982, Judge Pollak issued a memorandum and order: (1) denying the Government's motion for a default judgment; (2) denying Rep. Eilberg's claim of privilege under the Speech or Debate Clause as a ground for refusing to answer the questions in the first set of interrogatories; and (3) directing the parties to file further memoranda on the Fifth Amendment self-incrimination issue.
Although he said he was "dismayed by the inordinate and, as far as the record reveals, inexcusable delays which have attended defendant's responses to the interrogatories at issue here,” Judge Pollak ruled that Rep. Eilberg's objections were not "so plainly groundless as to warrant the conclusion that they (were), made in bad faith, merely to delay these proceedings.” [Memorandum, August 18, 1982, at 2] Therefore, the judge held that the Government's motion for a sanction of default would have to be denied.
Regarding Eilberg's_asserted privilege under the Speech or Debate Clause, Judge Pollak ruled that the eleven questions comprising the interrogatories, while possibly “hostile," did not touch on legislative acts, and therefore did not come within the Clause's protective ambit. He explained:
Th[e] asserted purpose on the Government's part may well
I have carefully examined each of the challenged inter-
by the Third Circuit and the Supreme Court. [Id. at 4-5) Finally, with respect to Rep. Eilberg's asserted Fifth Amendment privilege, Judge Pollak stated that while he was "far from persuaded that requiring Mr. Eilberg to answer the challenged interrogatories would, in fact, intrude on his privilege against self-incrimination,” he was also not certain based on the record and the parties' submissions that "answering these questions cannot possibly' tend to incriminate Mr. Eilberg in criminal wrongdoing for which one is unprotected from prosecution. United States v. Yurasovich, 580 F.2d 1212, 1216, (3d Cir. 1978)." [Id. at 7] Therefore, he directed the parties to file additional memoranda on the matter.
On September 10, 1982, the Government filed a memorandum in opposition to Rep. Eilberg's claim of privilege under the Fifth Amendment, which argued that "the plea agreement provided Eilberg with sufficient protection and that any information which Eilberg provides is with the protection of an immunity broad enough that it can be used in no other proceeding beyond_this court action.” [Plaintiff's Memorandum in Opposition To Defendant's Claim of Privilege Under the Fifth Amendment, September 10, 1982, at 1] The plea bargain agreement, insisted the Government, prevented charging Rep. Eilberg in any prosecution regarding the unauthorized use of Congressional perquisites, including prosecutions for criminal fraud, tax evasion, or other criminal conduct. In fact, the Government continued, the "informal transactional immunity” granted to Rep. Eilberg in the plea agreement was broader than use and derivative immunity, the minimum required to pro