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The attachment identified the following items:
(1) Mr. Moss' remarks made to Dan Seligman (a reporter) on or about January 23, 1979, during a telephone interview of Mr. Moss.
(2) The "Moss Report,” formally known as the Report on Uranium Lode Mining Claims on Federal Lands, dated De cember 1978, issued by the Subcommittee on Oversight and Investigations.
(3) The Subcommittee hearings which occurred in October, 1977, on the subject matter described in the Moss Report.
(4) Comments made by Ben Smethurst (a subcommittee staff member) to Dan Seligman during January-March 1979 about Fremont Energy Corporation, the Moss Report, or the related subcommittee hearings.
(5) The procedures and rules of the subcommittee and of Congress during the course of the subcommittee hearings. On March 5, 1981, Mr. Moss filed a motion to quash the subpoena in the U.S. District Court for the Eastern District of California. In a memorandum accompanying the motion, Mr. Moss argued that the subpoena violated the Speech or Debate Clause of the U.S. Constitution by seeking to compel testimony surrounding a Member of Congress' legislative acts. According to the memorandum, the Subcommittee on Oversight and Investigations which then-Representative Moss chaired, had jurisdiction over various aspects of nuclear energy, and pursuant to this authority was conducting a legislative inquiry into an international uranium cartel. It was as part of this investigation that certain activities of the Fremont Energy Corporation were reviewed and the subpoenaed subcommittee report prepared and issued.
Mr. Moss asserted that since these activities were, prima facie, within the legitimate legislative sphere, the privilege accorded under the Speech or Debate Clause was absolute, and any use of the legislative acts as evidence in a judicial proceeding constituted prohibited questioning. He noted that:
To provide the protection to the legislative branch intend-
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, 86, cl.1)
and testify, McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir.
1981, at 6-7] The memorandum also maintained that the Clause applied to civil suits in which the Member was not named as a party defendant.
On March 27, 1981, the plaintiffs filed a response, opposing Mr. Moss' motion to quash the subpoena. The opposition was premised on two arguments: (1) that the Speech or Debate Clause did not protect Mr. Moss from testifying because the focus of the deposition consisted of remarks made by Mr. Moss to a reporter after he had relinquished his seat in Congress; and (2) that the Clause did not protect a former Congressman from testifying regarding legislative acts in a civil deposition proceeding in which he was not a party.
Noting that the allegedly libelous articles that were published in the defendants' newspaper were based in part on the requested subcommittee report (the “Moss Report”), the plaintiffs claimed the subpoena was primarily an attempt to discover evidence concerning the efforts of Dan Seligman (the reporter who wrote the story) to verify the truth of the statements in the report prior to relying on them for his articles. The central subject of the subpoena, according to the plaintiffs, was Mr. Moss' telephone conversations (and those of subcommittee staff member Ben Smethurst) with reporter Seligman. In the plaintiffs' view, these telephone conversations did not constitute protected legislative activities under the authority of Hutchinson v. Proxmire, 443 U.S. 111 (1979), which upheld the right to maintain a defamation action against a Senator for statements in press releases and newsletters. (See page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) The plaintiffs explained:
Thus, even if former Representative Moss were still a member of Congress, inquiry by subpoena into conversations, such as those described in paragraphs 1 and 4 of Attachment A, would not be immunized by the Speech or Debate clause. The testimonial privilege afforded by the Speech or Debate clause is certainly no more extensive than the immunity provided by it against claims of defamation. Here the remarks were made after Mr. Moss had left Congress. There can be no question but that the contents of those communications were not protected by the Speech or Debate clause against either a subpoena or an allegation of defamation. A sitting Congressman is not protected from an allegation of defamation or a subpoena with respect to quotations from or dissemination of documents, even if such documents are official Congressional materials published by the Government. A fortiori, the former Congressman's
dissemination or use of any materials published by the Congress or anyone else, or any conversations he may have had with representatives of the
press or anyone else, are not protected from testimonial in-
6_7] For the same reasons, the plaintiffs contended that no Speech or Debate Clause privilege attached to the public documents sought in the subpoena. Even if it did attach with respect to the subcommittee hearings, they asserted, it would be inapplicable "to the extent Mr. Moss chose to discuss or allude to his motivations, thoughts, or activities with respect to those hearings, in conversations with members of the public after he was no longer a Member of Congress.” (Id. at 7]
Finally, the plaintiffs argued that although the Speech or Debate Clause clearly applied as a testimonial privilege and substantive defense in both civil and criminal actions, it did not bar testimony by a former Member in a civil deposition proceeding in which he was not a party.
On April 1, 1981, Mr. Moss filed a reply memorandum in which he argued that his statements to a reporter did not serve to waive his right to Speech or Debate Clause protection concerning his motivations, thoughts, and activities with respect to the relevant hearings. For this proposition, he cited United States v. Helstoski, 442 U.S. 477 (1979). (See page 71 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) Mr. Moss also noted that his status as a former Member did not affect his ability to assert the privileges afforded by the Clause since Mr. Helstoski had also been a former Member at the time the Court ruled in his favor on his claim of privilege.
Moreover, Mr. Moss said, the plaintiffs' subpoena was not in fact limited to telephone conversations, but sought to question the performance of legislative acts themselves. Mr. Moss pointed out that the plaintiffs' own pleadings sought to establish that the statements contained in the key subcommittee report were "false, misleading or incomplete.'
Finally, Mr. Moss argued that Hutchinson v. Proxmire, supra, was "so factually distinct from Plaintiffs [sic] claim as to render the case of negligible value in resolving the issue presented” in the instant case. (Chairman Moss' Reply Memorandum, April 1, 1981, at 4]
On April 6, 1981, oral argument was held on the motion to quash at which the court indicated from the bench that it would be granted in part and denied in part. On May 6, 1981, U.S. District Court Judge Raul A. Ramirez issued an order granting the motion to quash with respect to the subpoenaed documents, and denying the motion with respect to Mr. Moss' and Mr. Smethurst's conversations with reporter Seligman. The order stipulated that the deposition on these latter issues could not include any questions concerning:
The conduct of the Subcommittee investigation (including
lative aide, including communications between Mr. Moss,
at 2] On June 26, 1981, Mr. Moss filed a notice of appeal of the court's order to the U.S. Court of Appeals for the Ninth Circuit. [No. 814339)
On August 10, 1981, Mr. Moss filed a motion to stay his deposition (then scheduled for August 14) pending his appeal to the Ninth Circuit. He argued that:
Whatever impediment results from a temporary stay of a pre-trial deposition of a non-party in a civil suit, (the relevance of which has been questioned by a party and congressional movant), when balanced against the interest in protecting the constitutional prerogatives of a coordinate branch, is justifiable and in the public interest. (Memorandum of Points and Authorities in Support of Chairman Moss' Motion to Stay Deposition Pending Appeal, August
10, 1981, at 5] Mr. Moss also asserted that if the stay was not granted, the alternatives—either forcing him to waive his privilege or face possible contempt of court-were unseemly and unjustified.
On the same day, Mr. Moss also asked the court for an order shortening the time for a hearing on his motion for a stay. On August 11, 1981, Judge Ramirez granted this request and set the stay motion for argument on August 24.
On August 17, 1981, the plaintiffs filed a memorandum in opposition to Mr. Moss' motion for a stay arguing that Mr. Moss was unlikely to prevail on appeal, that he would not be irreparably injured if the stay was not granted, and that they would be substantially prejudiced if the stay was granted. Additionally, the plaintiffs noted that there was a question as to whether the district court's May 6th order was in fact appealable, since ordinarily an order denying a motion to quash a subpoena duces tecum was not.
On August 19, 1981, the court of appeals granted the plaintiffs' motion to dismiss the appeal. In a two sentence order the court held that it lacked jurisdiction since the district court's ruling on the motion to quash was not an appealable order.
On August 26, 1981, Mr. Moss was deposed in Sacramento at which time he refused to answer numerous questions propounded by the plaintiffs' counsel.
On September 14, 1981, in the district court, the plaintiffs filed an application for an order to show cause why Mr. Moss should not be held in contempt. In a memorandum filled simultaneously, the plaintiffs asserted that, despite the court's May 6th order approving the questioning of Mr. Moss about his and subcommittee staff member Smethurst's
Smethurst's conversations with reporter Seligman (identified as Items 1 and 4 on subpoena attachment A; see supra, pages 422-23), Mr. Moss had “clearly and unambiguously failed to comply” at his deposition. (Memorandum Brief in Šupport of Plaintiffs' Application For Order to Show Cause Re: Contempt, September 14, 1981, at 4] The plaintiffs continued:
Examination of the (deposition] transcript . . . reveals a consistent and deliberate pattern of refusal to answer questions clearly not quashed by the Order and, more particularly, questions clearly not only falling within the reach of the Subpoena as modified by the Order, but questions falling within the subject matter of Items 1 and 4 which the Court clearly and affirmatively determined Mr. Moss should answer in the Order. Indeed, the vast majority of questions proposed in the deposition relate to reconstruction of the conversation beween Dan Seligman and Mr. Moss on January 23, 1979 (i.e., the subject matter of Attachment A, Item 1). Not only did Mr. Moss refuse to answer any questions regarding the substance of the telephone conversation, he refused to even admit such a conversation had occurred or whether he knew or had ever talked to Dan Seligman . . . Also, Mr. Moss refused to respond to questions relating to Item 4 of Attachment A. Indeed, Mr. Moss again refused to even admit whether he knew Ben Smethurst, much less to testify about any knowledge he had concerning Dan Seligman's contact with
Ben Smethurst on or after January 4, 1979. [Id. at 3-4] On September 15, 1981, the court entered the requested order to show cause.
On October 8, 1981, Mr. Moss filed a response to the order to show cause, arguing that in seeking a contempt citation "at this stage in the proceedings" the plaintiffs had “improperly sought to short-circuit the proper procedure for consideration of a non-party witness's refusal to answer questions propounded at a deposition. [Chairman Moss' Response to Order to Show Cause, October 8, 1981, at 2] According to Mr. Moss, under Rule 37 of the Federal Rules of Civil Procedure the correct approach would have been for the plaintiffs first to file a motion for an order compelling discovery. Mr. Moss reasoned:
The Order of this Court, previously entered in this case on May 6, 1981, partially quashed the original subpoena. The Order also further limited the questioning. This Order is subject to varied interpretations, as evidenced by the deposition session, and whether it precludes certain specific questions is a matter which should properly be argued and decided in connection with a motion to compel. The inherent ambiguity of the subpoena, and the necessarily attendant vagueness which accompanies this court's action taken without reference to specific questions, render that order insufficient as a basis for a contempt citation. As the Supreme Court has recognized, “One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad.” Bowman Dairy