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purpose or intent behind them.” (Id.] While Judge Gasch agreed with the staff members that the active acquisition of information by Congressional staff, whether formally or informally, was protected by the Speech or Debate Clause, he disagreed with the assertion that "the mere passive receipt of information voluntarily proffered by various sources” came within the legitimate legislative sphere. (Id. at 680] The judge explained:
As recognized by this Circuit in the en banc decision in McSurely, even the relatively expansive protective shield created by the speech or debate clause has "finite limits." 553 F. 2d at 1287. The considered judgment of the Court is that the finite limits of the speech or debate clause's shield, with regard to the information-gathering function of Congress, is the point at which congressional staff cease to be the active catalyst that induces the provision of particular information to Congress and become, instead, the passive recipient of information provided by an outside source at the source's own election. As used in prior decisions, the term "acquisition" connotes some active role by Congress in the process by which information is garnered from various sources. Absent some active intervention by a congressional staff member inducing the provision of information in some manner, therefore, the Court cannot conclude that the unilateral act of providing Congress with data, however useful to Congress, constitutes the “acquisi
tion" of information by Congress or its staff. [Id.] Nonetheless, in line with this reasoning, the court stated that if information was provided to staff members in response to a telephone call, a letter, an interview (prearranged by a staffer), a promise of confidentiality, or a House subpoena, the material would fall within the definition of information acquired” pursuant to Congress' investigatory power and questioning about it would be barred.
Turning next to the question of dissemination of information, Judge Gasch rejected the Congressional deponents' position that questioning was barred about dissemination by any staff member other than the particular member being deposed. The judge concluded that if "the act of disseminating information outside Congress is unprotected, the Court perceives no basis for limiting the questioning of congressional deponents to their own acts of dissemination." [id. at 681] He did state, however, that questions dealing with the “interchange of documents or information among various congressional committees or staffs" need not be answered. (Id. at 681-682]
Judge Gasch also ordered the Congressional deponents to identify those documents disseminated outside Congress "because the mere identification of these documents does not implicate any legislative function.” (Id. at 682] Nonetheless, the judge sustained the objections of the Congressional deponents to any questions regarding the preparation of any Congressional documents, including questions about “the bases for conclusions reached in the documents, the evidence relied upon or otherwise used to prepare ilit documents, or the sources who provided evidence relied upon or otherwise used in the documents.” (Id.] In Judge Gasch's view, such questions clearly went to the core of the legislative decisionmaking process.
Finally, Judge Gasch also upheld the staff members' objections to questions relating to the structure of various Congressional committee staffs and the subject matter of any committee or staff investigations.
On December 23, 1981, after further objections had been interposed by the counsel to the Clerk during the plaintiffs' depositions of the Congressional staff members, the plaintiffs filed a motion to compel answers and overrule the objections to the disputed questions. In an accompanying memorandum, the plaintiffs argued that: (1) the court's memoranda of September 10 and November 13 permitted inquiry about all communications with the staff members initiated by noncongressional sources voluntarily, unilaterally, and without solicitation; (2) they were entitled to discover the existence of "acquisitional" contacts by Congressional aides (that is, they were entitled to know of the existence—the mere physical fact-of contacts initiated by the Congressional deponents and the fact that materials were acquired by investigators, even though they could not inquire further into the substance of those contacts or materials); (3) questions regarding any inquiry initiated by Rep. Dingell or an aide about the circumstances surrounding the dissemination of materials to the Post were permitted under the court's rulings; and (4) discovery of the communication and knowledge of information admittedly not privileged under the Speech and Debate Clause was permitted under the court's opinions.
On January 7, 1982, the Congressional deponents filed a memorandum in opposition to the motion to compel which disputed each of the plaintiffs' arguments. First, the staff members contended, they had in fact complied with the court's directive to testify about communications initiated by noncongressional sources voluntarily, unilaterally, and without solicitation. Second, the staff members maintained, the plaintiffs were not entitled to discover the existence of acquisitional contacts which were a part of the committee investigation:
To allow these plaintiffs to compel testimony from congressional aides which would catalogue the efforts taken by the committee to obtain information and would undercut the Court's recognition that the acquisition of information is an activity clearly falling within the ambit of the (Speech or Debate] Clause. [Congressional Deponents' Memorandum of Points and Authorities in Opposition to
Plaintiffs' Motion To Compel, January 7, 1982, at 6] Third, the Congressional deponents insisted, any inquiry initiated by Chairman Dingell or an aide concerning the circumstances of any dissemination was purely an internal committee matter protected by the Speech or Debate Clause. Such an inquiry by the Chairman or his aide into the performance of duties by the staff was clearly distinguishable, the staff members asserted, from either an "act of dissemination” or an "arrangement to disseminate." [Id. at 7] Fourth, the Congressional deponents argued, "communication and use of information within Congress, whether ac
quired within Congress, the legislative privilege or otherwise, is outside the scope of discovery.” (Id. at 11]
On January 15, 1982, the plaintiffs filed a reply memorandum in support of their motion to compel. The memorandum in essence restated the plaintiffs' arguments regarding the scope of the court's two previous decisions on discovery involving the Congressional staff members. Once again, the plaintiffs urged the court to compel answers to questions relating to the existence of the Congressional inquiry:
Congressional deponents' assertions of Speech or Debate Clause immunities must be supported by some basis in fact, not hypothesis or conjecture. Only after Congressional deponents establish the existence of a Congressional inquiry, when it was commenced and by whose authority it was conducted, can this Court determine that the substance of any such investigation is immune from discovery. [Plaintiffs' Reply Memorandum in Support of . . . Motion
to Compel . . ., January 15, 1982, at 2] The plaintiffs also argued for a broad interpretation of which questions were permissible regarding dissemination. In their view, they were entitled to responses to all questions in any way "pertaining” to dissemination, including questions dealing with “the role played by Congressman Dingell in the dissemination from the subcommittee, either by giving his implicit approval prior to the dissemination or by later ratification of the dissemination.” [Id. at 7]
On January 18, 1982, Chairman Dingell was served with a subpoena ad testificandum and a notice of deposition in the case. On February 16, Rep. Dingell filed a motion to quash the subpoena and a memorandum in support of the motion.
Asserting that the subpoena was merely another unwarranted and unsupported attempt to question the bona fides of the committee investigation, to abuse the discovery process, and to chill and inhibit the exercise of legislative responsibilities by the committee, its staff, and its Chairman, Rep. Dingell argued that it should be quashed "in the interest of preserving the efficacy and vitality of the processes of a coordinate branch.” [Memorandum of Points and Authorities in Support of Motion to Quash of Chairman John D. Dingell, February 16, 1982, at 6] More specificially, Rep. Dingell contended that the subpoena should be quashed for the following reasons:
(1) that absent a showing that Chairman Dingell dissemi-
showing of need and relevancy; and (4) that the testimony
for such subpoenas. (Id.] Rep. Dingell added that his communication to the SEC, enclosing a report to agency officials on what were believed to be possible violations of Federal securities laws, was privileged under the Speech or Debate Clause and therefore should be distinguished from unprivileged disseminations to a private party (e.g., the Post reporter). Terming his letter to the SEC the “paradigmatic exercise of the auxiliary investigative function" (Id. at 10), Rep. Dingell pointed out that his communication officially transmitted information gathered during a Congressional investigation for appropriate action by an agency with conceded jurisdiction over the matter. Since this was an official communication from a committee to an executive agency concerning a subject related to the performance of their respective legitimate functions, Rep. Dingell argued that “it is also speech or debate and the privilege is not just against liability, but from being called to testify.” (Id. at 12] He concluded:
· The Committee's investigation into the subject matter of
than authorize its transmittal to the S.E.C. (Id. at 15-16] On February 25, 1982, the plaintiffs' motion to compel answers of the Congressional staff members was argued before Judge Gasch and taken under advisement. On March 5, 1982, the Congressional deponents filed a supplemental memorandum in opposition to the motion to compel, objecting to conclusions which the plaintiffs' counsel had drawn (and put forth at oral argument) from handwritten notes of a Post reporter's meeting with deponent Stockton.
On February 26, 1982, the plaintiffs filed a memorandum in opposition to Rep. Dingell's motion to quash, arguing that: (1) Rep. Dingell's testimony about the dissemination of information to the SEC and the Post was relevant and material to the underlying libel action; (2) discovery of the circumstances surrounding the dissemination of information to the SEC was not barred by the Speech or Debate Clause given the specific terms of the court's November 13th decision and the holding of the Supreme Court in Hutchinson v. Proxmire, 443 U.S. 111 (1979); and (3) the attempt to depose Rep. Dingell for his activities in 1979 on the then-existing Subcommittee on Energy and Power constituted neither harrassment nor retaliation, and did not chill or inhibit the legislative activities of his present Subcommittee on Oversight and Investigations.
On March 12, 1982, Rep. Dingell filed a reply memorandum in support of his motion to quash. At the outset the memorandum reiterated that no evidence had been adduced showing that Rep. Dingell had participated in any dissemination to the Post defendants, and, without such evidence, the memorandum continued, the Speech or Debate Clause barred his questioning. “To permit a Member to be deposed under these circumstances to determine whether a Member disseminated would eviscerate the Clause and allow litigants to conduct mini-trials on whether there is any activity outside the scope of the Clause, constituting a serious erosion of the immunity.” (Chairman Dingell's Reply Memorandum, March 12, 1982, at 2-3 (emphasis in original; footnote omitted)]. Further, the memorandum pointed out, the uncontroverted testimony of the three Congressional staff members was that Rep. Dingell in fact had no role in any dissemination.
Next, the memorandum attacked the plaintiffs' theory that the letter from Rep. Dingell to the SEC was a dissemination on which a deposition subpoena could be predicated. Relying on United States v. Helstoski, 442 U.S. 477 (1979), the memorandum argued that deposing a Member of Congress concerning legislative investigative activities involving other agencies of government, and concomitant contacts with those agencies, was inconsistent with the Speech or Debate privilege. The plaintiffs' reliance on the Hutchinson case in this regard was misplaced, the memorandum maintained:
Plaintiffs are incorrect that Hutchinson v. Proxmire, 443
and to consider “proposed or possibly needed statutes
Watkins v. United States, 354 U.S. 178, 187 (1957).