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StatusThe case is pending in the U.S. District Court for the Western District of Wisconsin.

The complete text of the December 27, 1982 amended opinion and order of the district court is printed in the “Decisions” section of this report at page 634. IX. Attempts To Obtain Congressional Documents and Testimony

Through Use of the Subpoena 1. Civil Proceedings: United States v. Eilberg

[See page 126.] In Re: IBP Confidential Business Documents Litigation

M.D.L. No. 428 (N.D. Iowa) On December 4, 1980, Nicholas Wultich, a staff investigator for the Committee on Small Business of the U.S. House of Representatives; Charles Chatman, former counsel to the Subcommittee on Oversight of the Committee on Interstate and Foreign Commerce of the House; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee on Interstate and Foreign Commerce were each served with nearly identical subpoenas duces tecum issued by the U.S. District Court for the District of Columbia. The subpoenas called for the staff members to appear and testify at a deposition and to bring with them all documents in their possession or custody relating in any manner to lowa Beef Processors, Inc. (“IBP”) or Hughes A. Bagley." The subpoenas were issued upon the application of counsel for IBP and called for the appearance of the deponents at a Washington, D.C. law office on December 15 and 16, 1980. (The subpoenas were issued as part of a civil suit being litigated in the U.S. District Court for the District of Iowa.)

On December 12, 1980, the staff members submitted a motion in the Iowa court to stay enforcement of the subpoenas until February 1, 1981. They asserted that in order to adequately evaluate the constitutional issues raised by the subpoenas-involving the independence of Congress and the ability of its committees to fulfill their constitutional functions-a stay was essential.

Messrs. Wultich, Chatman and Fitzgibbons stated that pursuant to Rule 45(d) of the Federal Rules of Civil Procedure they had served IBP with a written objection to the inspection or copying of any documents covered by the subpoenas. Under that rule, said the deponents, IBP was not entitled to inspect or copy the materials except pursuant to a court order. The staff members claimed that such inspection and copying were outside the scope of permissible discovery because the materials were the direct product of their employment with the House of Representatives. They contended that both the documentary material and their personal knowledge and recollections of IBP and Mr. Bagley were privileged from discovery by the Speech or Debate Clause 2 and the policy of legislative independence:

1 Mr. Bagley was a former vice-president of IBP who allegedly transferred confidential documents belonging to IBP to Congressional investigators in 1975.

The (Speech or Debate) clause has been read "broadly to effectuate its purposes.Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975). It has been read to afford absolute protection from questioning legislative aides uch as those subpoenaed here on matters within the legislative sphere, and “the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.” Eastland, supra, at 502503. See also Gravel v. United States, 408 U.S. 606 (1972), Doe v. McMillan, 412 U.S. 306 (1973).

Committee investigatory activity is clearly within the proper sphere of the Article I functions devolved on Congress and is a necessary function of the Congress, McGrain v. Daugherty, 273 U.S. 135 (1927), and the gathering of information for legislative purposes is protected by the Speech or Debate Clause. Eastland v. United States Servicemen's Fund, supra. [Congressional Deponents Motion for Temporary Stay of Subpoena for Deposition, December 12,

1980, at 3] The staff members concluded that the subpoenas raised serious questions regarding the permissible scope of judicially compelled inquiry into the internal workings of Congress. Preparation for adequately briefing these constitutional questions, they said, was hampered by the expiration of the 96th Congress and the formation of the 97th, as well as by House Resolution 722 which required internal notification and consultative procedures prior to complying with the subpoenas.

On December 12, 1980, the U.S. District Court for the Northern District of Iowa ordered a stay of the depositions. The deponents and the parties to the underlying litigation were required to submit memoranda on the legality of the subpoenas by February 2, 1981.

On February 2, 1981, the staff members submitted a motion to quash and an accompanying memorandum. In the memorandum, the deponents argued, first, that the Speech or Debate Clause protected aides, as well as Members, if the conduct of the aide would be immune from scrutiny if performed by the Member. Second, the staff members argued that the prohibition against questioning legislative acts was absolute and could not be overcome, even by a showing of compelling need. Third, they argued that the Speech or Debate Clause had been held to protect information gathering activities by Members and aides because such activity was essential to legislating.

Turning to the facts of the present case, the staff members claimed that the subpoenas should be quashed because all three staff members had been engaged in sensitive information gathering activities; their knowledge of IBP and Hughes A. Bagley was exclusively a product of their performance of legislative duties assigned to them by Members of Congress. Any documents in their possession, said the staff members, were papers of the House and its committees.

2 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place.” (art. I, § 6, cl. 1)

Finally, the staff members asserted that the subpoenas were an attempt by IBP to use the process of the court to inquire into the official, non-public files and functions of Congress. They maintained that there appeared to be no conceivable question which IBP could ask them which would fall outside the legislative sphere, since the staff members sole and exclusive contact with IBP was through the committees' investigations.

On February 18, 1981, IBP filed a memorandum in opposition to the motion to quash. In this memorandum IBP outlined why it deemed the requested depositions important and why the Speech or Debate Clause would not preclude the depositions from being held. First, IBP asserted that in July 1979, Mr. Bagley testified before a subcommittee of the House Small Business Committee concerning events which occurred during his employment with IBP during the early 1970's. In August 1979, IBP sent a letter to Rep. Neal Smith, Chairman of the Small Business Committee, in which it informed him of its belief that portions of Mr. Bagley's testimony were not true. In October 1979, Mr. Bagley filed suit against IBP, claiming that IBP's letter to Chairman Smith was defamatory. IBP then counterclaimed, asserting that Mr. Bagley had defamed IBP before the subcommittee. The depositions, argued IBP, were essential to the defamation litigation because the staff members on several occasions met with Mr. Bagley to discuss his anticipated testimony before the subcommittee, and to receive from him copies of documents which he took from IBP. IBP concluded its discussion of these factual allegations by asserting that under Gravel v. United States, 408 U.S. 606 (1972), Members and their aides are not immune if they conspire to violate the rights of private parties. Without specifically saying so, IBP implied that such a conspiracy might have occurred here.

Second, IBP asserted that during the course of Mr. Bagley's testimony, committee staff members disseminated to the press a document containing both a summary of Mr. Bagley's testimony and Mr. Bagley's responses to questions posed to him by Mr. Fitzgibbons of the committee staff. After stating that under Hutchinson v. Proxmire, 443 U.S. 111 (1979) (see page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case), the voluntary republication of defamatory material is not protected by the Speech or Debate Clause, IBP asserted that Mr. Bagley recently testified that he did not know whether his answers to Mr. Fitzgibbons' questions, as contained in the document released to the press, accurately reflected his actual answers (which had been given to Mr. Fitzgibbons orally with no stenographer present). IBP argued that determining whether the committee document accurately reproduced Mr. Bagley's statements was a critical issue in the defamation case, and was not an issue protected from questioning by the Speech or Debate Clause.

Third, IBP claimed that Rep. Smith pressured the Antitrust Division of the Justice Department, the Federal Trade Commission, and the Securities and Exchange Commission to investigate IBP. Since, according to IBP, Hutchinson v. Proxmire, supra, and United States v. Brewster, 408 U.S. 501 (1972) had held that follow-up communications between Congressmen (or their staffs) and Federal agencies are not covered by the Speech or Debate Clause, compelling the deponents to answer questions regarding Rep. Smith's correspondence with Federal agencies would be permissible under the Clause.

IBP's final argument was that the Speech or Debate Clause could not create a personal privilege for the aides themselves. Citing Gravel v. United States, supra, IBP claimed, first, that the deponents could invoke Speech or Debate Clause immunity only after showing that a Member of Congress had authorized them to invoke the Clause and, second, that no such showing had been made in this case. Without such authorization, continued IBP, it would be impossible for a court to know whether the Congressmen who employed the staff members agreed with their Speech or Debate Clause contentions.

On March 2, 1981, the Congressional staff members filed a reply memorandum to IBP's opposing brief in which they argued that, contrary to IBP's claims, they had posited “'no sweeping claim of congressional immunity' but rather invoke[d] the Speech or Debate] Clause to protect core legislative activity, i.e., the conduct of a committee hearing and legislative acts performed in connection therewith, from being 'questioned' outside the House." (Congressional Deponents Reply Memorandum To IBP's Opposing Brief, March 2, 1981, at 1]

Turning first to the question of whether the aides could invoke Speech or Debate Clause protection without specifically identifying the Members who authorized their claims, the staff members asserted that "authorization abounds[Id. at 2] for their use of the Clause. Pointing in particular to House Resolution 722, supra, and its legislative history, the staff aides argued that:

Whatever the force and effect of the language cited by IBP
from Gravel v. United States, 408 U.S. 606, 621-622 n. 13
(1972) concerning the ability of a Member to “repudiate”
or "waive” an aide's claim of privilege, that is not an issue
here, since far from repudiating these claims, two chair-
men, the Speaker and the joint leadership have been noti-
fied of the motion to quash, as envisioned by House Reso-
lution 722, and no Member has repudiated the claim. (Id.

at 3-4 (footnote omitted)] With respect to the coverage of the Speech or Debate Clause, the staff members maintained that even though they were subpoenaed as non-party witnesses in a private suit, the Clause required that the subpoena be quashed because it prohibited the "questioning" of Members or aides regarding legislative acts whether or not they were parties to the underlying litigation. They noted that the Gravel case relied upon by ĪBP was just such a third-party case.

Responding to IBP's arguments based on Hutchinson v. Proxmire, supra, the staff members contended that they were inapplicable because Chairman Smith's statements and the disseminated documents summarizing Mr. Bagley's testimony were part of a regularly convened committee hearing, and constituted “a practice which is regularly followed in the Congress to facilitate the hearing process.” (Id. at 7] According to the Congressional aides, IBP could not ground its discovery in any acts which occurred during a regularly convened committee meeting. Further, they claimed:

Even if the acts characterized by IBP as “press releases” do constitute unprivileged dissemination, nothing in Hutchinson, despite IBP's unsupported assertion that under Hutchinson a press release serves to open to discovery the "factual foundation” for the release, supports the contention that activity performed outside the scope of the Clause subjects activity within the Clause to questioning.

(Id. at 8] Finally, the staff members argued that the Hutchinson case could not be extended to hold that a Member or aide who disclosed to the public or a Federal agency the existence of a legislative act opened that legislative act, and related legislative acts, to “wholesale searching judicial questioning." "Whether . . . clearly legislative actions were later followed by or referred to in a dissemination deemed outside the legislative sphere a la Proxmire does not affect their status as legislative acts.(Id. at 9]

On March 26, 1981, U.S. District Court Magistrate James Hodges issued an order allowing IBP to file a supplemental brief opposing the Congressional deponents' motion to quash. Again, IBP claimed that no Member of Congress had invoked the Speech or Debate Clause to protect the witnesses, which, the company maintained, was required under both House Resolution 722 and the Gravel decision. IBP also argued that the General Counsel to the Clerk of the House (the counsel for the staff members) could not invoke the Clause because the Clerk himself was not empowered to do so. Second, IBP reiterated its assertion that the Speech or Debate Clause should not apply to this case because it involved "subpoenas for testimony and documents served on congressional employees in a private, civil diversity case in which the liability of neither those employees nor any Member of Congress is in question," and because it was "very remote from the concerns about executive or judicial harassment of Federal legislators that led to the inclusion of the clause in the Constitution.” (IBP's Supplemental Brief Opposing Fitzgibbons-Wultich-Chatman Motion to Quash, March 18, 1981, at 3-4] Third, IBP again contended that the Hutchinson case required denial of the motion to quash. “[E]ven if the 'facts' upon which the statements in the (disseminated) documents were premised were derived from the Committee's investigation and interviews with Bagley, under Hutchinson once the documents were disseminated to the public the privilege was necessarily lost as to the factual basis for those statements." [Id. at 6] Fourth, IBP asserted that the staff members had “conceded” their lack of immunity concerning contacts with Federal agencies by not addressing the point in their reply brief. Finally, IBP argued that the documents they sought did not come within Speech or Debate protection, or, at the least, were subject to a separate inquiry to determine whether or not they reflected legitimate legislative activity.

On May 11, 1981, the Congressional staff members filed a reply to IBP's supplemental brief, once again disputing all of the compa

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