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ny's assertions and claiming that a recent Federal court decision in United States v. Peoples Temple of the Disciples of Christ (see page 266 of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981 for a discussion of that case) had explicitly rejected many of IBP's contentions. Citing the new case, the brief restated the staff members' arguments that they had standing to invoke Speech or Debate Clause protection and that the Clause applied to a subpoena in a private civil action in which neither the prospective witnesses nor any Member of Congress was a party. The brief also took particular issue with IBP's reliance on the Hutchinson case:

IBP's attempt to equate the preparation of material, and its use at a committee hearing, with the widespread nonlegislative dissemination of allegedly actionable material found in Hutchinson v. Proxmire, 443 U.S. 111 (1979) stretches that decision to the breaking point, and their attempt to "bootstrap" into a wholesale questioning of legislative actions and motivations mocks the important principles underlying the Clause. [Congressional Deponents'

Reply to IBP's Supplemental Brief, May 11, 1981, at 3-4] The staff members also attacked IBP's efforts to characterize the documents sought as unprotected or subject to a separate inquiry:

This Court should reject IBP's attempt to “discover” the documents by means of a preliminary hearing ostensibly held to determine whether they are privileged from discovery. This preliminary hearing would force legislators to "defend” themselves in a manner proscribed by the Clause Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (Clause protects not only against consequences of litigation, but the "burden” of defending) and seems particularly inappropriate in light of the fact that the subpoena is directed at committee investigators and describes the documents contained therein “All documents relating in any way to Iowa Beef Processors, Inc. or Hughes A. Bagley.” The pertinency of documents relating to IBP or Mr. Bagley to the legislative work of these committees can hardly be questioned at this point. Clearly the acquisition and maintenance of these documents are within the “zone” of legitimate legislative activity into which no questioning will be

condoned. (Id. at 5] On May 15, 1981, IBP filed a reply to the Congressional staff members' brief and its reliance on United States v. Peoples Temple of the Disciples of Christ, supra. The reply claimed the Peoples Temple case was not applicable because: (i) a Congressman, Clement Zablocki, invoked the Speech or Debate Clause in that case, rather than a staff member; (2) the United States was a party in that case and it was not wholly between private parties; and (3) that case did not involve the Hutchinson case holding.

Discovery continued in the case-in-chief during the summer without any ruling by the court on the Congressional staff members' motion to quash.

On September 29, 1981, Magistrate Hodges issued an order granting the Congressional staff members' motion to quash the subpoena in all respects except for two areas: (1) contacts with Federal agencies by committee staff seeking to influence those agencies' actions regarding IBP; and (2) the “post-hearing investigation” into Mr. Bagley's termination by the Dubuque Packing Company.

At the outset, the court specifically rejected IBP's contention that only Members of Congress, not staff members, could invoke the Speech or Debate Clause. The magistrate held that, for the purpose of construing the privilege, “a Congressman and his aide are to be treated as one, hence things done by the aide are privileged to the extent that they would have been privileged if done personally by the Congressmen.” [Order, September 29, 1981, at 3] Furthermore, Magistrate Hodges concluded that the record did not support a finding that the privilege had been waived.

Turning next to the question of whether the Speech or Debate Clause applied in a civil action in which no Member of Congress was a party, the court answered affirmatively.

It seems clear that the Speech or Debate Clause historical-
ly arose to preserve the functional independence of the leg-
islature, see generally Legislative Privilege and The Separa-
tion of Powers, 86 Harvard L. Rev. 1113 (1973). In this
regard the Supreme Court has repeatedly stated that the
"central role” of the Clause is “to prevent intimidation of
legislators by the Executive and accountability before a
possibly hostile judiciary”, Eastland v. United States Serv-
icemen's Fund, 421 U.S. 491, 502 (1955); Doe v. McMillan,
412, U.S. 306, 311 (1973). Since the dangers of intimidation
and harassment sought to be eliminated by the privilege
are equally present in civil cases and the language of the
clause is so broad it is the view of the court that it should
be applied here. See United States v. Peoples Temple of The
Disciples of Christ, et al., Misc. No. 81-0066 (April 10,
1981); Kaye, Congressional Papers, Judicial Subpoenas and
the Constitution, 24 U.C.L.A. L. Rev. 523, 549 n. 124 (1977).

(Id. at 3-4] Finally, addressing the facts of the instant case, the court held that: (1) the preparation of any witness who testified before the committee “clearly falls within the privilege and consequently no judicial inquiry should be permitted(Id. at 4); (2) the news releases and summaries of testimony were more intricately intertwined" with the hearings (and thus the legitimate legislative sphere) than the press releases in the Hutchinson case since they were not widely distributed, "but their use was limited to the hearings themselves” (Id. at 5); and (3) no inquiry could be made as to "statements by witnesses to the Committee, information obtained for the hearing or conclusions drawn by the Committee.” (Id.]

Magistrate Hodges did conclude however that the Speech or Debate Clause did not bar questioning about staff contacts with other Federal agencies such as the Antitrust Division of the Department of Justice, the Packers and Stockyards Administration, the Federal Trade Commission, and the Securities and Exchange Commission seeking to influence those agencies' actions regarding

IBP. He based this conclusion on the Hutchinson and Brewster cases.

Moreover, the magistrate ruled that he was unable to see how inquiry into the reason for the Bagley termination could be found to be a protected act. He noted that the “Congressional deponents have made no attempt to show how inquiry into these matters would infringe in any way upon the legislative process.(Id.)

On October 8, 1981, IBP filed a motion asking the district court to review and overrule Magistrate Hodges' September 29th order to the extent that it granted the Congressional staff members' motion to quash and barred depositions on their contacts with Bagley leading up to his committee testimony or their contacts with the documents Bagley allegedly took from IBP. In an accompanying brief, IBP essentially restated its previous arguments that: (1) under both the House rules and the Gravel decision, staff members did not have standing to assert the Speech or Debate Clause privilege without explicit authorization from a Member of Congress; and (2) the Clause was not applicable to the subpoenas at issue because they were served in a civil diversity suit between private parties for evidence central to the case without any risk of liability to any Member or aide, and without any possibility of interference with on-going Congressional proceedings. Finally, IBP argued that the magistrate had erroneously construed and applied the Hutchinson case because:

First, the newsletter involved in Hutchinson repeated the "essence" of a congressional speech made by Sen. Proxmire. While the Supreme Court noted that the speech when made in Congress was protected by the Clause, it was not protected when reported in the newsletter. Id., at 116 and n. 3, 117, 113. The Proxmire newsletter, thus, if anything had a closer connection and "intertwining" with a legislative act than the materials involved here, which were a release issued to the press before Bagley testified and "summaries" and "transcripts" of Bagley's testimony also issued to the press and public which Bagley now claims were not his testimony.

Second, in any event, Hutchinson did not hold that the protection of the Clause for news releases and other materials issued to the press or public depended on how "intricately intertwined" they were with legislative hearings. To the contrary, the Supreme Court made it clear beyond doubt that such materials are not protected by the Clause at all. Id., at 133.

Third, the Magistrate's Order makes a factual error when it states that the materials here in question were not "widely distributed" but were "limited to the hearings themselves." It is undisputed that the media were heavily in attendance at the hearings during Bagley's testimony, and Rep. Smith's staff distributed the materials directly to the media. [Brief in Support of IBP's Motion For Review

.., October 8, 1981, at 4-5) On October 19, 1981, the Congressional staff members filed an opposition to IBP's motion for review of the magistrate's order. As they had previously, the staff members disputed IBP's assertions as to standing (citing Gravel and House Rule 50, and noting that no Member had repudiated the staff aides' Speech or Debate claims), the applicability of the Clause to civil discovery (citing the Peoples Temple case), and the applicability of Hutchinson v. Proxmire. On the last issue, the staff members argued that the magistrate's finding that the limited distribution of the hearing materials distinguished the case from Hutchinson was correct. They pointed out:

First, and most importantly, the materials distributed were not reflective "of the views and will of a single Member” Hutchinson v. Proxmire, 443 U.S. at 133 conducting a publicity campaign, but rather aided the committee's conduct of the hearing. In both Gravel, supra, Doe v. McMillan, 412 U.S. 306 (1973) and United States v. Brewster, 408 U.S. 501 (1972), the Court preserved the inviolability of the committee hearing process by applying the Clause to forbid inquiry into how Members “spoke, how (they] debated, how (they] voted, or anything [they] did ... in the Committee.Brewster, supra at 526.

While the Magistrate did not rely on it, a recent case in
this Circuit affirms the correctness of the decision. In
Greeen v. DeCamp, 612 F.2d 368 (8th Cir. 1980), a state law
enforcement officer brought suit against eight state sena-
tors charging, inter alia, that their release to the press of a
committee report critical of the plaintiff's discharge of his
duties in connection with a murder constituted a depriva-
tion of his constitutional rights. Plaintiff contended that
releasing the report to the public and the press was out-
side the legislative immunity. The court of appeals reject-
ed the claim and held that, "on the basis of Doe v. McMil-
lan, we conclude that mere release 'to news reporting and
publishing agencies' of the Fitzgibbon report was a legiti-
mate legislative activity.” 612 F.2d at 372. The court spe-
cifically found that Hutchinson v. Proxmire, supported the
conclusion, since Hutchinson concerned the republication
by a single legislator, 4 not the proceedings of a committee.

4 The Bagley testimony, together with the staff interviews and summaries, were
later published by the House. See “Small Business Problems In The Marketing of
Meat and Other Commodities (Part 5-Anticompetitive Practices In The Meat Indus-
try)” Hearings Before the Subomm. on SBA and SBIC Authority and General Small
Business Problems of the House Comm. on Small Business, 96th Cong., 2d Sess. 4-83
(1979). Thus the materials distributed were nothing but another form of a commit-
tee hearing merely released to the public contemporaneously with the conduct of
the hearing and immune from inquiry under Green v. DeCamp, supra.
[Congressional Deponents Opposition to IBP's Motion For

Review, October 19, 1981, at 4-5) On October 29, 1981, the Congressional staff members filed a motion asking the magistrate to reconsider his earlier order to the extent that it allowed the depositions to go forward with respect to the "post-hearing investigation” into Mr. Bagley's termination by the Dubuque Packing Company. Since the magistrate had held that questioning was permissible on the subject solely because the Congressional aides had made no showing as to how such an inquiry would infringe on the legislative process, the staff members sought reconsideration for the purpose of making such a showing. They argued that there were three separate reasons which supported the conclusion that the committee's inquiry into Mr. Bagley's termination was directly related to the legislative process and hence a protected legislative activity. First, the staff members maintained, the investigation of possible reprisals against committee witnesses was “in aid of the committee's ability to protect the integrity and sanctity of its processes and is ancillary to the fulfillment of the investigative function.” [Brief in Support of Congressional Deponents Motion To Magistrate for Reconsideration, October 29, 1981, at 1-2] Second, they contended, the facts and circumstances surrounding the termination were relevant to the committee's inquiry regarding possible anticompetitive practices in the meat industry. And finalİy, the staff members noted, the investigation of the circumstances surrounding Mr. Bagley's termination aided the committee in evaluating his testimony and its possible use as a basis for remedial legislation.

On January 4, 1982, Magistrate Hodges issued a one-sentence order denying the Congressional staff members' motion to reconsid

er.

Over the next year, discovery has continued in the case-in-chief, and various pre-trial motions were filed by the parties and ruled upon by the court. Although a trial was held in the case in December 1982, and various post-trial papers and orders were filed in January and February 1983, the court still has not ruled on IBP's motion of October 8, 1981 seeking review of Magistrate Hodges' order quashing the subpoenas directed at the Congressional staff members.

Status—The case is pending in the U.S. District Court for the Northern District of Iowa. It appears likely, however, that the participation of the House in the case has been concluded.

The complete text of the September 29, 1981 order of the district court magistrate is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982. Fremont Energy Corporation v. Seattle Post-Intelligencer

Civil Action No. S-81-144 RAR (E.D. Cal.) and No. 81-4567 (9th

Cir.) On February 12, 1981, during the course of a libel suit filed by the Fremont Energy Corporation against the Seattle Post-Intelligencer, the Hearst Corporation and others in the U.S. District Court for the Western District of Washington (Civil Action No. C79-443V), the plaintiffs, utilizing foreign deposition procedures, served a subpoena duces tecum on former Congressman John E. Moss. The subpoena called for Mr. Moss, who had been Chairman of the Subcommittee on Oversight and Investigations ("Subcommittee”) of the Committee on Interstate and Foreign Commerce of the U.S. House of Representatives, to appear for a deposition in Sacramento, California and to bring with him “any and all reports, records, files, notes, memoranda, correspondence or other documents pertaining to certain remarks and comments more specifically described in attachment A..." to the subpoena.

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