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Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Thompson “breached his fiduciary duty to the United States to render fair, honest and uncorrupted service as a Member of Congress.” Count IV sought judgment against Rep. Thompson for not less than $47,500, this sum representing the sum of money Rep. Thompson allegedly personally received ($50,000) minus the amount subsequently recovered by the United States ($2,500). Pre-judgment interest was also sought.

Count V repeated the allegations of Count I and further alleged that by his conduct Rep. Murphy, like Rep. Thompson, breached his fiduciary duty to the United States. Count V sought judgment against Rep. Murphy for not less than $47,500, this sum representing the sum of money Rep. Murphy allegedly personally received ($50,000) minus the amount subsequently recovered by the United States ($2,500). Again, pre-judgment interest was also sought.

Count VI repeated the allegations of Counts I and IV and further alleged that "defendant Thompson holds all sums that he wrongfully received in trust for the United States of America.” Under Count VI the Government asked that Rep. Thompson be ordered to pay $47,500 plus pre-judgment interest.

Count VII repeated the allegations of Counts I and V and further alleged that “defendant Murphy holds all sums that he wrongfully received in trust for the United States of America.” Under Count VII the Government asked that Rep. Murphy be ordered to pay $47,500 plus pre-judgment interest.

Count VIII did not involve either Rep. Thompson or Rep. Murphy.

On July 28, 1982, the case was referred to U.S. Magistrate David F. Jordan who on the same day scheduled a status conference for October 10, 1982. Subsequently, the status conference was postponed until March 2, 1983.

Status—The case is pending in the U.S. District Court for the Eastern District of New York. United States v. Jenrette

Civil Action No. 82-3373 (D.D.C.) In June 1980, U.S. Representative John W. Jenrette of South Carolina was indicated by a Federal grand jury on three counts, including bribery. In October 1980, a jury found himn guilty on all three counts. (See page 23 of this report for a discussion of that case.)

As a follow-up to that criminal prosecution, the Government filed a civil action against Rep. Jenrette and John R. Stowe (who was convicted along with Rep. Jenretee) on November 24, 1982 in the U.S. District Court for the District of Columbia. The complaint contained six counts. jurisdiction was asserted under 28 U.S.C. § 1345.

Count I alleged that between November 1979 and February 1980 the defendants conspired to violate 18 U.S.C. § 201 (bribery and fraud). Specifically, Count I alleged that the defendants agreed that in return for $50,000 (to be shared between them) Rep. Jenrette would use his influence as a U.S. Representative to assist foreign businessmen to immigrate to the United States. Count I further stated that on December 6, 1979 undercover FBI agents actually delivered this $50,000 bribe to the defendants. After alleging that $1,300 of the $50,000 sum was subsequently recovered by the United States, Count I concluded by requesting that the court find that the defendants, jointly and severally, owed the United States $48,700 (plus pre-judgment interest) in "wrongfully received” money.

Count II repeated the allegations of Court I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $48,700 which they continue to retain all at the expense of the United States of America." Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $48,700 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $48,700 “rightfully belong to the United States of America.” A finding of joint and several liability was again requested.

Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Jenrette "breached his fiduciary duty to the United States to render fair, honest and uncorrupted service as a Member of Congress." Under Count IV the Government asked that Rep. Jenrette be ordered to pay $48,700 plus pre-judgment interest.

Count V repeated the allegations of Counts I and IV and further alleged that "defendant Jenrette holds all sums that he wrong-fully received in trust of the United States of America." Under Count V the Government again asked that Rep. Jenrette be ordered to pay $48,700 plus pre-judgment interest.

Count VI did not involve Rep. Jenrette.

On December 17, 1982, Rep Jenrette filed an answer in which he denied the material allegations of the compliant and further averred that "the plaintiff is estopped from attempting to collect upon an illegal agreement." Rep. Jenrette also asserted that "the plaintiff is estopped from the assertion of all claims by the operation of laches and/or the applicable statute of limitations."

Status—The case is pending in the U.S. District Court for the District of Columbia.

III. The Right of Members of Congress to Sue (Standing) Crockett v. Reagan

No. 82-2461 (D.C. Cir.) On May 1, 1981, eleven Members of the House of Representatives 1 filed suit in the U.S. District Court for the District of Columbia (Civil Action No. 81-1034) against President Ronald Reagan, Secretary of Defense Caspar Weinberger, and Secretary of State Alexander Haig seeking a declaratory judgment, and a writ of mandamus and/or an injunction directing the defendants to "withdraw immediately all United States Armed Forces, weapons, military equipment and military aid to El Salvador and prohibiting them

1 The plaintiffs were Representatives George W. Crockett, Jr., Ronald V. Dellums, Mervyn M. Dymally, Don Edwards, Barney Frank, Tom Harkin, Mickey Leland, Barbara A. Mikulski, Anthony Toby Moffett, Richard L. Ottinger, and Theodore S. Weiss.

from sending additional armed forces, weapons, military equipment, and military aid to El Salvador." [Complaint, May 1, 1981, 1 2] The plaintiffs sought to enforce the War Powers Clause of the U.S. Constitution (art. I, § 8, cl. 11), which gives Congress the power to declare war, the War Powers Resolution (50 U.S.C. $$ 1541, et seq.), which restricts the sending of American troops overseas to engage in military activities without Congressional approval, and section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. $ 2304), which prohibits the providing of military aid to governments engaged in a consistent pattern of gross violations of internationally recognized human rights. Additionally, the plaintiffs sought to enforce the obligations of the U.S. Government and the defendants “under international law to abide by the laws of war and to promote the observance of universally recognized standards of human rights." [Id., | 35]

The Members sued in their representative capacities and as individual citizens, claiming standing because: (1) the defendants' actions violated the named constitutional and statutory provisions, and so threatened the "institutional interest of Congress and each member thereof in the exercise of the power explicitly allocated to ... Congress .., thereby diminishing the powers of each Senator and Congressman to vote and participate in the determination of matters which the Constitution entrusts to the Congress” [Id., 1 5(c)]; (2) they represented the American people who had been made "accomplices to terror" in violation of international law (Id., | 6); and (3) they represented the American people who had been injured by unilateral actions not in compliance with "political, legal, and constitutional process." [Id., 17]

The complaint recited four causes of action, the first two of which alleged violations of the Constitution and the War Powers Resolution in that the defendants had “introduced at least 56 members of the United States Armed Forces in aid of the Salvadorian junta and its armed forces" [Id., | 14] in the country's civil war. According to the plaintiffs, this action violated the War Powers Clause of the Constitution in that no declaration of war had been made, and violated the War Powers Resolution in that the U.S. armed forces had:

(a) been introduced by defendants into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, although there has been no declaration of war by the Congress, there is no specific statutory authorization for the introduction of such forces, and there is no national emergency created by an attack upon the United States, its territories or possessions, or its armed forces;

(b) been permitted to remain in El Salvador despite the failure of the defendant Reagan to comply with the specific reporting requirements set forth in the foregoing Resolution; and

(c) been permitted to remain in El Salvador beyond the period of 60 days when such forces are, in the absence of a declaration of war, required under any circumstances to be removed. [Id., | 23]

The third cause of action recited numerous violations of human rights by the junta and its armed forces and security forces, and alleged that the provision of U.S. military equipment and support to the El Salvador government made "the United States and defendants herein willing and inevitable accomplices to the commission of these crimes and violate . . . provisions of international law.” [Id., 1 38]

The final cause of action alleged violations of the Foreign Assistance Act of 1961, supra, in particular section 502B. Because of the junta's enumerated violations of internationally recognized human rights, the complaint asserted that section 502B prohibited security assistance to El Salvador. Exceptions to this prohibition were not warranted in this case, the complaint stated, because “[e]xtraordinary circumstances do not exist which necessitate a continuation of security assistance to El Salvador; nor on all the facts is it in the national interest of the United States to provide such assistance." [Id., 145]

On June 18, 1981, sixteen U.S. Senators and thirteen Congressmen 2 filed a motion under Rule 24 of the Federal Rules of Civil Procedure to intervene in the case as party defendants. In a memorandum accompanying the motion, the prospective intervenors argued that their motion should be granted because the case raised "vital issues implicating their right to exercise their Constitutional and legislative prerogatives according to the Constitution, traditional Congressional procedures and political custom." (Memorandum of Points and Authorities in Support of Intervening Defendants' Motion for Leave to Intervene, June 18, 1981, at 2] The Members asserted that they sought intervention to protect, inter alia, their “legislative discretion on political questions without judicial interference initiated by colleagues who have failed to gain consensus or enactment of their own policy views.[Id.)

The prospective intervenors contended that the district court was an inappropriate forum in which to debate foreign policy, and claimed that the plaintiffs had and would have opportunities to accomplish the result they were seeking in court through the legislative process. If the court was willing to consider the case, however, the Members maintained that they were entitled to intervention

ause: (1) their motion was timely; (2) they had a stake in protecting their constitutional and legislative prerogatives and thus had an interest in the subject matter of the action; (3) their ability to protect their interests would be impaired if the case was disposed of in a manner favorable to the plaintiffs, since that “would not only nullify completed legislative action in the Senate and House on aid to El Salvador, but would also operate to remove legislative discretion from consideration of the pending bills" subject (Id. at 12); and (4) they would not be adequately represented by the Executive branch defendants who had different interests from those of the prospective Congressional intervenors.

2 Those seeking to intervene as defendants were Senators Roger Jepsen, Jesse Helms, Paul Laxalt, Strom Thurmond, Robert Dole, James McClure, John Tower, Steven Symms, S. I. Hayakawa, Jeremiah Denton, Barry Goldwater, Gordon Humphrey, Orrin Hatch, Paula Hawkins, Don Nickles, and Dan Quayle, and Representatives Robert Dornan, Richard Cheney, George Hansen, Eldon Rudd, Bob Livingston, Philip Crane, Larry McDonald, Daniel Crane, Jim Jeffries, John Rousselot, Bob Stump, Daniel Lungren, and Jack Fields,

On July 2, 1981, the defendants filed a memorandum in opposition to the motion for leave to intervene, arguing that the "interest which the proposed intervenors invoke, namely, asserting that the political process is the judicially recognized vehicle for the resolution of plaintiffs' claims, is . . . identical to that which the named defendants will represent.” (Defendants' Points and Authorities in Opposition To Motion for Leave to Intervene, July 2, 1981, at 2) ACcording to the memorandum, the arguments which the proposed intervenors sought to advance were in fact "duplicative" of those which would be put forward by the defendants.

On July 14, 1981, the plaintiffs also filed a memorandum in opposition to the motion to intervene. Characterizing the lawsuit solely as one to enforce already enacted laws limiting the President's power to declare war or to commit American forces to military activities abroad, the plaintiffs asserted that there were no interests of the potential intervenors which could be adversely affected by the court's decision without their participation. The plaintiffs elaborated:

In light of what is the real subject matter of this lawsuit
it is difficult to understand applicant-intervenors' claim
that their interests as Congressmen will be adversely af-
fected by this Court's enforcement of already enacted laws.
Applicant-intervenors' primary assertion is that plaintiffs
are requesting this Court to intervene in an on-going
policy dispute within Congress and that such intervention
will impugn applicant-intervenors' legislative discretion on
political questions.* There is in fact a legislative debate
now underway in Congress. Some persons associated with
applicant-intervenors would, for all practical purposes, like
to repeal the War Powers Act and other legislation. The
theory of plaintiffs is that legislation on the books is ade-
quate if enforced. What this litigation is about is enforce-
ment of existing law, a matter wholly and entirely unre-
lated to the debate about changing the law.

* Applicant-intervenors state that their participation is necessary to protect their
legislative discretion on political questions without judicial interference initiated by
colleagues who have failed to gain consensus on endorsement of their own views."
Memorandum of Points and Authorities in Support of Intervening Defendants'
Motion for Leave to Intervene (hereafter, Motion to Intervene) at 1-2.
[Plaintiffs’ Memorandum of Law in Opposition To Appli-

cant-Intervenors' Motion To Intervene, July 14, 1981, at 3] In sum, the plaintiffs argued that intervention should be denied because the intervenors' interests were either “irrelevant" to the suit or would be adequately represented by the defendants. Further, they contended, the inclusion of the intervenors would "disserve the interests of adversarial clarity and judicial economy” and “cloud the legal issues involved” by transforming "a clear legal and constitutional controversy between Congress and the Executive into an irrelevant intra-branch policy confrontation.” [Id. at 12]

On July 21, 1981, the prospective intervenors filed a response to the oppositions to their motion to intervene. With respect to the plaintiffs' contentions, the prospective intervenors argued that

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