On May 11, 1981, the motion of the Congressional deponents to quash the subpoenas was argued and taken under advisement by Judge Gasch.

On July 20, 1981, the Congressional staff members filed a motion to intervene in the consolidated cases for the limited purpose of staying the noticed deposition of Mr. Comnas pending the disposition of their motion to quash. Alternatively, they sought to intervene to secure a protective order to prevent the mootness of the pending motion to quash through discovery by indirect means (i.e., the Comnas deposition) of the substance of the Subcommittee's investigation. Although the motion to intervene was opposed by the plaintiffs in a memorandum filed on July 23, Judge Gasch granted it after a hearing the following day.

On July 24, 1981, having been permitted to intervene, the staff members filed their motion to stay the Comnas deposition or alternatively for a protective order. (The motion had actually been lodged with the court on July 20, simultaneously with the motion to intervene.) In a supporting memorandum, the Congressional deponents pointed out that Mr. Comnas had been interviewed by them during the course of the Subcommittee investigation, and that such interviews of witnesses were within the protected legislative sphere. The Speech or Debate Clause, they argued, barred questioning, directed to third parties, into the motives or performance of legislative acts. Asserting that the plaintiffs were attempting to circumvent or moot their claims of legislative privilege, the staff members urged the court to grant the stay or enter a protective order precluding the questioning of Mr. Comnas concerning his communications with the Congressional interviewers.

On July 23, 1981, the plaintiffs filed memorandum in opposition to the motion for a stay, arguing that it should be denied for two reasons: (1) no legislative act had occurred about which Mr. Comnas could be questioned; and (2) the extension of legislative privilege to a non-congressional source would contravene established legal principles.

On the first point the plaintiffs noted that the substance of the Congressional staff members' interview with Mr. Comnas was contained in a memorandum which had been disseminated outside Congress (when it was forwarded to the SEC by Rep. Dingell and subsequently released to the Post). Under the doctrine of Hutchinson v. Proxmire, supra, the plaintiffs argued, the dissemination of material outside Congress is not a legislative act and is not protected by legislative privilege. Further, they asserted, the interview itself was not a legislative act, particularly since the Subcommittee had not authorized any investigation.

Whatever intent or purpose the staffers had when inter-
viewing George Comnas, the interview never resulted in
legislation or in a legislative act. Legislative privilege is
limited. It only "precludes any showing of how [a legisla-
tor] acted, voted or decided." Id. Here there was no legisla-
tive action, no vote to commence an investigation. The
Aides' interview of Comnas was not related to any "legisla-
tive act."

Moreover, Congressional Aides have continued to make bald assertions that they were engaged in a "valid Subcommittee investigation." Yet they have offered no evidence of any Congressional authorization for their activities. They have not even explained how it related to any legislative business. Plaintiffs, on the other hand, have presented considerable evidence regarding the Post's relationship to the Aides' activity. There is no documentary evidence of any official actions by either the Dingell Subcommittee on Energy and Power or the Subcommittee on Oversight and Investigations. There is no evidence that any subcommittee approved any type of investigation, formal or informal, into Mobil-Samarco-Atlas activities. [Plaintiffs' Memorandum . . In Opposition to Congressional Deponents' Motion for a Stay . . ., July 23, 1981, at 5-6 (footnotes omitted)]

On the second point, the plaintiffs argued that the logical extension of granting a legislative privilege to a non-congressional source would be to insulate wrongful or tortious conduct from judicial scrutiny "merely by communicating it to the Congress or congressional staffers." [Id. at 7] This would, the plaintiffs insisted, undermine judicial authority to resolve disputes among private parties.

On September 10, 1981, Judge Gasch issued an order which, inter alia, denied the Congressional deponents' motion to quash the subpoenas, set forth certain guidelines regarding the conduct of the depositions, and granted the Congressional deponents' motion for a protective order with respect to the Comnas deposition.

In a memorandum handed down with the order, Judge Gasch explained each of his directives. [Tavoulareas v. Piro and The Washington Post Co., 93 F.R.D. 11 (D.D.C. 1981)] Turning first to the staff members' motion to quash, the judge found that the Speech or Debate Clause: (1) confers on legislators immunity from judicial process requiring them to answer questions relating to the performance of their legislative duties; (2) applies to Congressional staff as well as to Members; (3) is to be construed "broadly"; and (4) protects, as within the legitimate legislative sphere, investigative information gathering efforts. Nonetheless, Judge Gasch ruled that "a consistent line of authority" had held that "the act of disseminating information outside of Congress is beyond the legitimate legislative sphere and therefore outside of the protections afforded by the speech or debate clause." [93 F.R.D. at 18] As a consequence, he ordered that the motion to quash be denied "to the extent that plaintiffs seek testimony from the Congressional deponents relating to the dissemination of the so-called Dingell documents, and for that matter any other information, to the Post reporters." [Id. at 18 (emphasis in original)]

Judge Gasch rejected, however, the plaintiffs' suggestion that the investigation at issue was not covered by the Speech or Debate Clause privilege because it was merely a sham undertaken at the urging of the Post defendants. Inquiry into the motives of the staff members in conducting the investigation was barred by the Clause, he ruled:

As previously noted, investigations by congressional aides
for the purpose of gathering information on a subject
which appears on its face to be of legitimate legislative in-
terest are protected by the privilege. Although plaintiffs
have repeatedly suggested that the subject investigation
was not actually aimed at uncovering information of valid
legislative interest but rather was undertaken, at the
urging of the Post defendants, as a means of lending legiti-
macy to the stories in question, it is clear that such asser-
tions, even if true, do not pierce the legislative privilege.
Thus, it matters not that the true purpose behind
a committee's use of its investigative power is to
ridicule, harass, or punish a private citizen. So
long as the particular investigative activity does
not trench upon Executive or judicial preroga-
tives-so long as it remains facially legislative in
character-the committee, and its employees, are
protected.

McSurely v. McClellan, 521 F.2d at 1038. Thus, inquiry
into what motivated the Congressional deponents to inves-
tigate these matters is not a permissible subject of exami-
nation. [Id. at 18-19]

Judge Gasch found "similarly unavailing" the plaintiffs' arguments that an "informal" investigation was not subject to Speech or Debate Clause protection. For this holding, he cited in particular McSurely v. McClellan, 521 F.2d 1024, 1037 (D.C. Cir. 1975). (See page 181 of this report for a discussion of that case.)

With respect to the question of whether and to what extent the plaintiffs could inquire into communications by the Post reporters, either directly or indirectly, with the Congressional staff, Judge Gasch held that "while inquiry into the motivation behind the Congressional deponents' investigation is foreclosed by the speech or debate privilege, inquiry into the apparent motivation of the Post reporters in bringing the matter to the staff's attention, if in fact they did, would not be similarly precluded." [Id. at 19 (emphasis in original)] Furthermore, he found, “insofar as these possible contacts could be construed as a solicitation for the dissemination of information by congressional staff, they cannot be said to implicate valid legislative activities since... dissemination does not fall within that characterization." [Id. (emphasis in original)]

Finally, focusing on the Congressional deponents' motion for a protective order with respect to the Comnas deposition, Judge Gasch concluded that the plaintiffs' objections were without merit and therefore granted the order. The judge first dismissed the plaintiffs' argument that no legislative act had occurred, holding that the Speech or Debate privilege did apply to the matters in question. Next he ruled that the "plaintiffs' view that the speech or debate clause does not extend to questioning of a third party other than a legislator or his aides is simply a misstatement of the law." [Id. at 23 (emphasis in original)] In fact, said Judge Gasch, the "inescapable conclusion" was that the Clause "prohibits the use of ju

dicial process to inquire of a third party about the legislative acts of a legislator or his aides. "[Id. at 24 (emphasis in original)]

On November 4, 1981, Mr. Comnas' deposition was held during which counsel for the Clerk of the House objected to certain questions propounded to him (i.e., Mr. Comnas) because they purportedly probed the conduct of a Congressional investigation in violation of the Speech or Debate Clause and Judge Gasch's September 10th memorandum. On November 5, counsel for both the Clerk and the plaintiffs wrote to Judge Gasch concerning the deposition and the merits of their respective positions. While the plaintiffs contended that the questions at issue related only to the dissemination of information from the Subcommittee, the Clerk's counsel noted that:

Simply put, we did not object to any questions concerning disseminations from the Congress to an entity outside the Congress. However, the interaction between the congressional investigators and their witness and source does not constitute dissemination. If that were so, the Congress would be effectively estopped from talking to its witnesses or showing documents to them in connection with the conduct of interviews. That is not the law and therefore Plaintiffs are foreclosed from further pursuing the discovery to which we objected. [Letter from Stanley M. Brand and Steven R. Ross to Honorable Oliver Gasch, November 5, 1981, at 5]

On November 6, 1981, Judge Gasch issued an order attempting to provide guidance with respect to the disputed questions at the Comnas deposition. Essentially, the judge directed Mr. Comnas to answer questions regarding: (1) dissemination of information or documents outside the scope of a legislative investigation; (2) any solicitation by any party to disseminate any information or documents provided to, or generated by, any Representative or Congressional staff member; (3) Mr. Comnas' own motivations in providing information. Questions probing the motivations of any Member of Congress or staff member were specifically barred.

On November 9, 1981, during the plaintiffs' deposition of Congressional staff member David Schooler, a dispute again arose as to the scope of permissible discovery, and an emergency hearing on the matter was held later that day before Judge Gasch. Subsequently, counsel for the interested parties once more wrote to Judge Gasch-at his direction-to brief the court on their positions. The Clerk's counsel took particular issue with the assertion that the nature of a committee source might somehow affect the privileged nature of the information acquired by the committee:

At the brief hearing on November 9, 1981 the question was raised whether the nature of the Committee's source affected the privileged nature of "acquisition of information" by the Committee. Two categories of Committee sources were put forward as potentially depriving the "investigative contact" of its privileged status: reporters and litigants. Since the focus and intent of the privilege is to protect Congress' ability to inform itself as a desirable predicate for legislating the affairs of the nation, congres

21-618 O-83-29

sional deponents suggest that the status, whether catego-
rized by occupation or by participation in litigation of the
person who provides information to a congressional com-
mittee is irrelevant to the privileged status of the activity
itself. It should be unnecessary to reach the question
whether reporters and individuals who are, at some later
date, named as defendants in a lawsuit are to be classified
as "suspect" sources for a congressional investigation, and
that committee investigators might be subject to question-
ing concerning contacts with these sources while protected
from being questioned as to others. This classification of
congressional sources is unprecedented in the case-law.
Rather the judicial precedents, as does the order of Sep-
tember 10, 1981 in the instant case, treat as privileged the
legislative act of acquiring information and as not privi-
leged the congressional dissemination of information.

It is a fact of twentieth century life, and indeed of our
nation's history, that the press possesses the resources and
inclination to obtain information concerning the way this
nation functions. The Congress should not be precluded or
dissuaded from questioning an individual by virtue of his
role as a reporter. Historically, the press has provided in-
formation to the Congress, not only by publication of its
articles but, in many instances, as witnesses and sources
for congressional committees. The courts have recognized
the danger to the legislative process posed by the com-
pelled production of testimony concerning the acquisition
of information by the Congress, there is no basis for ex-
cluding the press from those able to provide a congression-
al committee with information. [Letter from Stanley M.
Brand and Steven R. Ross to Honorable Oliver Gasch, No-
vember 10, 1981, at 4-5]

On November 13, 1981, Judge Gasch issued a memorandum-order further defining the scope of permissible discovery insofar as the Congressional deponents were concerned. [Tavoulareas v. Piro and The Washington Post Co., 527 F. Supp. 676 (D.D.C. 1981)] In general, he found that the three categories of inquiry about which the Congressional deponents were willing to answer questions (i.e., (1) dissemination of information by the deponents to sources outside Congress; (2) solicitations for dissemination of information outside Congress by the Post reporters named in the litigation; and (3) communications by the Post reporters, or other non-congressional sources concerned with the litigation, regarding their motives in providing information to the Congressional staff) were too narrowly restricted and were "unjustified under applicable caselaw." [527 F. Supp. at 679]

The court turned first to the issue of communications between the Post reporters and the staff members, and held that insofar as "Post reporters, or others, were voluntary, unsolicited sources of information regarding the matters in dispute in this libel action, . . . the congressional deponents are not privileged by the speech or debate clause to refuse to answer questions concerning the nature and content of these voluntary communications or the