Co. v. United States, 341 U.S. 214, 221 (1951); United States
v. Peterson, 206 F. 2d 433, 434 (D.C. Cir. 1953).3

3 The court, during earlier oral argument, has played the role of a prophet in this
matter. "I know exactly what's going to happen. I forsee it coming and that actually
this will have been a waste of time because the government was unable to quash all
facets, all side requirements, and I see what's going to happen, but I don't think I
can resolve that until the specific question is put before the court.Transcript of
Oral Argument on Motion to Quash, April 6, 1981 at 31-32 (Emphasis added). It is
much more appropriate to reach these specific determinations on the basis of a
Motion to Compel than at a contempt hearing with the attendant serious adverse
implications for the rights of an individual, as well as a coordinate branch.

[Id. at 4-5] In addition to contending that a contempt hearing at that point would violate the Federal Rules, Mr. Moss argued that it would also deprive him of several important due process rights guaranteed to an individual in a contempt situation. First, he noted, he was not on notice of precisely which of his refusals to answer the questions were alleged to be contrary to the order of the court, and therefore he could not adequately defend those refusals. Second, Mr. Moss maintained, because of the same lack of notice he was denied his right to “purge” himself of the contempt by specifically complying with an underlying order of the court delineating the particular questions to be answered.

On October 16, 1981, the plaintiffs filed a reply memorandum terming the “implications of Mr. Moss' arguments completely out of touch with the requirements of an efficient judicial administrative system and contrary to the spirit of the Federal Rules

Civil Procedure.” [Plaintiffs' Reply Memorandum . October 16, 1981, at 4] Noting that eight months had passed since Mr. Moss was served with the subpoena and more than five months since the issuance of the court's order, the plaintiff's asserted:

After reading the transcript of the deposition, it is hard to
imagine a more clear contravention of the Subpoena and
Order. Mr. Moss' extended discussion of Rule 37(a), Fed. R.
Civ. P. requiring an Order as a prerequisite to a citation
for contempt is inapposite quite simply because there was
an Order. The cases cited by Mr. Moss simply do not ad-
dress the situation where an Order has been entered in re-
sponse to a Motion to Quash or for Protective Order. The
notion that the Court must approve each question once it
has previously entered an Order defining in detail the per-
mitted scope of questioning is not supported by law. (Id. at

2-3] The plaintiffs also rejected Mr. Moss' due process claims, stating that he had been afforded more than adequate time to respond to the contempt charge and could at any time “purge" himself of contempt by simply responding to questions.

On October 19, 1981, oral argument was held on the contempt motion, and the following day Judge Ramirez issued an order adjudging Mr. Moss guilty of civil contempt. Although the order directed that he "be committed to the custody of the United States Marshal for incarceration until such time as he complies with the Subpoena as modified by the [May 6th] Order," it stayed incarceration pending appeal.

On October 20, 1981, the same day the contempt order was issued, Mr. Moss filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. [No. 81-4567]

On December 9, 1981, the defendants in the underlying libel action (the Seattle Post-Intelligencer, the Hearst Corporation, et al.) filed a motion in the circuit court asking that they be allowed to file a brief as amicus curiae in support of Mr. Moss' position on appeal. This motion was subsequently granted in an order issued on January 11, 1982.

On December 23, 1981, Mr. Moss filed his brief in the appeals court arguing, first, that the lower court had erred in adjudging him in civil contempt in the absence of an order compelling answers to specific questions posed at his deposition. Again he contended that under Rule 37 of the Federal Rules, and in view of the drastic nature of the contempt sanction, an order compelling discovery was a prerequisite to finding him in contempt. According to Mr. Moss, decisions in the Second, Eighth, and Tenth Circuits, and the clear weight of judicial authority supported this view.

Even if the district court properly proceeded without an intervening motion to compel under Rule 37, Mr. Moss maintained, the court failed to provide him with a meaningful opportunity to demonstrate "adequate excuse" for non-compliance as required under Rule 45(f). Not only did the lower court not provide an adversary, evidentiary hearing to consider any nonfrivolous defenses, Mr. Moss argued, but also it took no steps to even ascertain whether all the questions posed at his deposition were within the bounds of its own May 6th order. Moreover, because of the "open-ended” nature of the subpoena and the “vague and indefinite” instruction of the contempt order, Mr. Moss contended that he could not reasonably know the precise manner in which he could purge the contempt if he so desired.

Second, Mr. Moss claimed that contempt was inappropriate both because he lacked authority under applicable House rules to respond to the questions posed and because the district court failed to provide a meaningful review of the questions upon which the House could base consent to respond. Mr. Moss explained:

As briefed and argued below, H.R. Rule L(50), supra at 3 n. 5, involves procedures established to guarantee protection of the textual prerogatives. Compliance with subpoenas can only be effected by a "Member, officer or employee, consistently with the privileges and rights of the House," H.R. Rule L(50) supra ||1. Pursuant to these procedures, the current Chairman of the Committee on Energy and Commerce joined in making the requisite determination under Rule 50, 13 concerning materiality, relevancy and the constitutional privileges of the House. By letter Chairman Dingell "made the determinations required by Section 3," Exhibit 1, CR 17, and concluded that compliance was inconsistent with the privileges asserted.

In addition, H.R. Rule L(50) 16, requires the Member must transmit notification to the House that the subpoena “is a proper exercise of the court's jurisdiction, is material and relevant, and is consistent with the privileges and

rights of the House" so that the House will have an oppor-
tunity to instruct the Member otherwise. As explained in
the floor debate during consideration of H.R. Rule L(50):

In all cases, however, notice would be given prior
to complying to the subpoena, so as to provide the
House an opportunity should it so choose, to
introduce a privileged resolution regarding the

126 Cong. Rec. H8945 (daily ed. Sept. 17, 1980 (remarks by
Rep. Derrick)). (emphasis added).

Under such a "privileged resolution” the “House may
determine . whether to allow the documents to be re-
leased or testimony given, or take other action as it deems
necessary." Id.

In this case, no such notification was provided to the
House by Chairman Dingell, and therefore, Chairman
Moss lacked the authority to comply with the subpoena.
[Brief of Movant-Appellant, Chairman Moss, December 23,

1981, at 24-25 (footnotes omitted)] Finally, Mr. Moss asserted that in the “approximately 190 years of judicial legislative branch relations it has never been necessary in a single reported instance to resort to the harsh and severe remedy, of contempt” for the two branches to reach an “accommo dation" over subpoenas for documents or testimony. (Id. at 27] He suggested that over the years a process for resolving disputes had evolved

-a sifting process which insures both that the area of dispute is reduced to the narrowest possible basis and that the process of arriving at an accommodation provides an opportunity for the coordinate branch to assure that its privileges have been fully considered. This process was abruptly and prematurely truncated by the district court before an "accommodation" with less disruptive and sig

nificant implications could be achieved. (Id.] Mr. Moss concluded that the separation of powers doctrine and respect for Members of Congress and a coordinate branch demanded that contempt be used in such cases only as a last resort of the judiciary.

On January 6, 1982, the defendants' brief in support of Mr. Moss' position was lodged with the court. (It was formally filed on January 11, the day the defendants' motion to participate was granted.) While the defendants took no position on Mr. Moss' original Speech or Debate Clause arguments and also did not discuss his procedural objections to the contempt citation under Rule 37, they contended that the material sought by the plaintiffs in their deposition of Mr. Moss was not relevant to the issues of the lawsuit. The defendants summarized their argument as follows:

Plaintiffs' attempt to depose Mr. Moss in order to discover whether defendants were or should have been aware that statements contained in the Moss Report were false, misleading or incomplete does not provide a valid basis for

the contempt judgment. The discovery which plaintiffs demand is irrelevant to the issues of the suit because defendants were privileged to reproduce, in a fair and accurate manner, the contents of an official U.S. Congressional Subcommittee Hearing and Report. By demanding Mr. Moss' deposition for the purpose of discovering defendants' efforts to verify the truth of the contents of a Congressional report, plaintiffs directly attack defendants' privilege to report official proceedings. [Defendants' Memorandum of

Points and Authorities, January 11, 1982, at 6] Asserting that their republication of reports from the Moss hearings and the committee report was privileged under both the common law of the state of Washington and the First Amendment, the defendants pointed out that:

If the press could not report such proceedings as the Moss Subcommittee Hearings and Report without liability for alleged inaccuracies in the government's investigations, the public would be denied much of its access to the results of official proceedings. The press would have to devote its own resources to duplicate Congress' efforts in order to protect itself from liability for defamatory statements

before it could safely report governmental proceedings. The cost of reporting on complicated and controversial issues of governmental debate would be enormous. The public would be the loser.

It is to prevent a chilling effect on the reporting of official proceedings that the law has long recognized a privilege allowing the press to publish accounts of official proceedings even when those accounts may contain defamatory statements so long as the report was fair and accurate and was not motivated solely for the purpose of dam

aging the plaintiff. (Id. at 11-12] This privilege to report official proceedings, the defendants concluded, eliminated from the case any issue concerning their knowledge of, or their efforts to confirm, the truth of the contents of the Moss report, and likewise made Mr. Moss' testimony immaterial. (The defendants added that, in any event, they did not believe the report was inaccurate.)

On February 11, 1982, the plaintiffs filed their brief, arguing that the district court's contempt sanction was properly applied in this case. They contended, first, that Mr. Moss' refusal to provide documents or answer questions at his deposition because of the claimed applicability of the Speech or Debate Clause was unjustified. Noting that the issue had been exhaustively briefed and argued before the trial court, and that Mr. Moss' attorney had stated that he would continue to refuse to answer any questions at his deposition, the plaintiffs asserted that “it was not necessary for the Court to review each specific question to determine whether the Clause would apply.” [Brief of Appellees, February 11, 1982, at 8]

Second, the plaintiffs claimed, Mr. Moss' reliance on the rules of the House was not an adequate excuse for his failure to obey a judicial subpoena. The plaintiffs maintained that discovery proce

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dures were not governed by the House rules, and that, in addition, H.R. Rule L(50), by its own terms, did not apply to Mr. Moss because he was no longer a Member of Congress. “Any special internal rules of the House . are inapplicable because Mr. Moss was not a member of the Congress on the date he was served with the subpoena, when he appeared at the deposition, or on January 23, 1979, the date when he carried on a telephonic interview with Dan Seligman." [Id. at 8-9)

Third, the plaintiffs argued, Mr. Moss' contention that they should have moved under Federal Rule 37 for an order to compel before seeking contempt was without merit. As they had in the district court, the plaintiffs pointed out that a valid order had been entered on May 6, 1981, and a trial court “need not approve each question once it has previously entered an Order defining in detail the permitted scope of questioning.” [Id. at 14]

Fourth, the plaintiffs claimed, Mr. Moss was given a meaningful opportunity to demonstrate "adequate excuse" for disobeying the subpoena. Again they noted that the Speech or Debate Clause issue was fully briefed and argued prior to the May 6th order and that the contempt citation came only after months of litigation, during which time Mr. Moss had "more than ample opportunity" (Id. at 16] to demonstrate adquate excuse for noncompliance. The plaintiffs asserted that:

In summary, the fact that counsel for Mr. Moss might
have raised other objections is not important here for he
did have the opportunity to raise such defenses during the
deposition, in his response to the Order to Show Cause and
at the contempt hearing. In his response to the Order to
Show Cause, he did not file any affidavit. In his response,
he raised four blanket objections: privilege, irrelevance,
legal impossibility, and bad faith . . . At the contempt
hearing, Mr. Moss again referred to these defenses,
but did not request or demand, at any time, the opportuni-
ty to present any evidence to support his objections. If he
possessed evidence of bad faith on the part of Fremont, he

was most quiet or secretive about it. (Id. at 17] Finally, the plaintiffs argued, the defendants' claimed republication privilege was an issue for the trial court and did not constitute "adequate excuse" for disobedience of the subpoena. They concluded:

The Newspaper's argument is of no assistance to Mr.
Moss because of three factors: (1) There is nothing in this
record or anywhere to support the premise that Fremont's
libel allegations are based on any activity of the Newspa-
per with respect to The Moss Report or the hearings; (2)
The substantial portion of the deposition of Mr. Moss did
not involve The Moss Report or the hearings transcript;
and (3) The questions which did refer to that report and
hearings are universally composed of phraseology such as:

"Mr. Moss, during the course of your telephone
conversation on January 23, 1979, did Mr. Selig-

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