irrational and discriminatory enforcement pattern. [Id. at
6-7]

The Government asked the court to deny the defendants' motion without a hearing.

On July 1, 1981, the Subcommittee on Separation of Powers filed a motion to appear in the case as a movant to quash the subpoenas for documents which had been served by the defendants on Chairman East and Chief Counsel James McClellan. The Subcommittee asserted that the subpoenaed documents (described as "requests of individuals and organizations, and replies thereto, to testify as witnesses at hearings on S. 158, correspondence regarding selection of witnesses for hearings on S. 158, memoranda regarding selection of witnesses for hearing on S. 158") were internal records of the Subcommittee and their production would "threaten by infringement" the privilege of the Subcommittee.

In the actual motion to quash the subpoenas and to limit the scope of testimony, filed the same day, the Subcommittee asserted that the "[d]efendants' subpoenas for documents and testimony, other than testimony concerning the events at the public hearing of April 23, seek material which is privileged under the Speech or Debate Clause of the Constitution, since preparations for subcommittee hearings, and a subcommittee's call for witnesses, are internal legislative matters." [Motion to Quash Subpoenas and To Limit the Scope of Testimony, July 1, 1981, at 2] The motion noted that the Senate, on June 25, 1981, had passed Senate Resolution 165 which authorized Senator East and two staff members to testify solely about the events at the hearing. It did not authorize the production of documents or testimony about other matters, and directed the Subcommittee to appear to quash the subpoenas covering those areas.

In a memorandum accompanying the motion to quash, the Subcommittee expanded on its Speech or Debate Clause argument: 1

Defendants' subpoenas for records and testimony by the Senator and Chief Counsel about selection of witnesses for the Subcommittee's hearings intrude upon the center of the Senate's legislative functions and thus the very core of the zone privileged from questioning under the Speech or Debate Clause. The Clause protects not only literal speech or debate, but also the other legislative activities such as preparation for subcommittee hearings and calling of witnesses; not only Members, but also aides; and not only against testimonial demands, but also against document demands. [Memorandum of Points and Authorities in Support of Motion to Quash Subpoenas and to Limit the Scope of Testimony, July 1, 1981, at 4]

On July 2, 1981, the defendants filed a memorandum in opposition to the Subcommittee motion to quash the subpoenas and to limit the scope of testimony, arguing that the Speech or Debate privilege was not absolute and that the Subcommittee had "failed

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, § 6, cl. 1]

to show that any substantial interest protected by the Speech or Debate Clause is sufficient to overcome the rights of defendants to freely and fairly defend themselves." [Memorandum of Points and Authorities in Opposition to Motion to Quash Subpoenas and To Limit the Scope of Testimony, July 2, 1981, at 2] Citing United States v. Nixon, 418 U.S. 683 (1974) [involving the Watergate tapes], the defendants asserted that "claims of privilege are not absolute in the face of compelling Fifth and Sixth Amendment rights.” [Id. at 4] Further, the defendants maintained, the Speech or Debate Clause was historically not meant to apply to situations such as the instant one, where the subpoenaed individuals "do not face the coercive or intimidating effects of being named as defendants in a criminal or civil proceeding" [Id. at 5-6], but were merely asked to appear, testify, and produce documents.

According to the defendants, the Government's position was also anomalous because the Senate had waived the Speech or Debate Clause protection (through Senate Resolution 165) with respect to the events at the April 23rd hearing, but had refused to do so with respect to other issues. The defendants reasoned:

If any Speech or Debate privilege exists regarding the in-
formation sought in the challenged subpoenas, it would
relate to the conduct of the legislative hearing. The con-
duct of the hearing itself is the core activity protected by
the privilege. Movants have waived the privilege as it re-
lates to this core activity but attempt to assert the privi-
lege as to conduct ancillary to this core activity. It turns
the privilege on its head to argue that the public expres-
sion of speech or debate in the form of investigative hear-
ings are not worthy or necessary of the protection of the
privilege but that the support functions leading up to
these hearings somehow are. This position obviously has
its roots in the misguided belief that the confidentiality of
the ancillary proceedings is protected by the Clause. [Id. at

8]

Also on July 2, 1981, the defendants filed an opposition to the Government's motion in limine to exclude irrelevant evidence. In their supporting memorandum the defendants in essence argued that a pre-trial evidentiary ruling by the court would be premature in the absence of a factual setting and would "abrogate fundamental constitutional guarantees as well as the customary procedure for ruling on objections to evidence at the time it is proffered." [Memorandum of Points and Authorities In Support of Defendants' Opposition to Government's Motion In Limine To Exclude Irrelevant Evidence, July 2, 1981, at 1] Since a wide range of evidence could be relevant to the questions of whether an actual "disruption" took place and whether the defendants had a specific intent to cause it, the defendants argued that it would be improper for the court to grant the government's motion. "The fundamental objection to the government's request is that it would deprive the defendants of their right to defend themselves on the elements of the offense with which they are charged, and to effectively examine witnesses." [Id. at 4]

Also on July 2, 1981, Judge Harriet Taylor granted the Subcommittee on Separation of Powers' motion to appear as a movant to quash the subpoenas. In the same order, Judge Taylor deferred ruling on the motion to quash pending the disposition of other motions which, if granted, could render it moot.

On July 9, 1981, Judge Taylor denied the defendants' motion to dismiss the information on grounds of selective prosecution. The same day, Judge Taylor heard arguments on the Government's motion in limine which she granted in an oral ruling from the bench on July 10.

On July 29, 1981, Judge Taylor filed her opinion and order on the July 9th denial of the defendants' motion to dismiss for selective prosecution. While conceding that it was a settled principle of law that the Constitution prohibits discriminatory enforcement of criminal laws, Judge Taylor held that "mere laxity or selectivity in enforcement does not constitute discriminatory enforcement; prosecutorial discretion may be exercised freely, so long as neither the decision to prosecute nor the police decision to arrest rests on unjustifiable standards such as race, religion, or political beliefs or associations." [Opinion and Order, July 29, 1981, at 2 (footnotes omitted)] Further, Judge Taylor stated that not every claim of discriminatory prosecution automatically entitled the claimant to discovery to aid in the defense; a prima facie showing has to be made "that others similarly situated have not been prosecuted for similar conduct." [Id. at 4]

Turning to the facts of the case, Judge Taylor found that the defendants had not sustained the initial burden of demonstrating prime facie discrimination. The judge rejected the defendants' contention that the standard of comparison should only be between the treatment they received and that accorded others arrested at committee hearings (as opposed to those arrested for disturbances in the House or Senate galleries):

The Court has carefully considered this contention and finds it totally lacking in merit-the classic "distinction without a difference." Certainly, it finds no support in the language of the statute: the prohibition of Section 9123(b)(4) extends equally to acts directed at "the orderly conduct of any session of the Congress or either House thereof, or . . . any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof." Nor does any of the record evidence support such a distinction. To the contrary, the only evidence addressing this point was Captain Hudak's unhesitating "no" when he was asked whether the Capitol Police follow different policies or practices for disturbances in the galleries and those at hearings. [Id. at 5-6]

Judge Taylor concluded:

Members of the public do not participate in hearings as
the spirit moves them; a congressional hearing room is not
a Friends meetinghouse. As our Court of Appeals empha-
sized in connection with a closely-related provision of the
same law, "[t]he purpose of the statute is to permit Con-

gress to carry out the people's business unhindered by seri-
ous disruption." Because the business carried out in hear-
ing rooms differs from that carried out in the House or
Senate Chambers, it is to be expected that the necessary
logistics and controls will differ, too. But that is a far cry
from defendants' suggestion that the differing circum-
stances render conduct disruptive of proceedings on the
floor ipso facto acceptable when it occurs at a committee
hearing. [Id. at 7 (footnote omitted)]

On August 4, 1981, the Government filed a supplemental memorandum concerning the Subcommittee's motion to quash the subpoenas. Specifically, the memorandum dealt with the question of whether Chairman East, who appeared on videotapes of the April 23rd hearing which the Government intended to offer into evidence, had to be made available for cross-examination. It was the Government's position that, under common law rules of evidence concerning hearsay, it was not obligated to produce Senator East for cross-examination, although it admitted that there was no case law directly on that point. According to the Government:

Such a contemporaneous recording is not inadmissible hearsay because it is not offered to prove the truth of anything said on the tape. See e.g., Rule 801(c), Federal Rules of Evidence. Rather, any statements on the tape are admitted simply to give the jury a complete picture of what happened at the scene of the crime. They are admitted via the tape in the same way that a witness describing the incident would be permitted to testify concerning statements made that were heard by the defendants and might illumine their intent or the reasonableness of subsequent conduct by them or others on the scene.

. . [T]he appropriate question is not whether defendants are entitled to cross-examine individuals appearing on tapes, but whether the tapes are admissible in the first place. If they are admissible, it is because they are not hearsay and therefore do not contain the kind of statements of which cross-examination is necessary. Although the Government would contend otherwise, should the court decide any statements on the tapes are inadmissible hearsay, the proper remedy would be to delete them or to instruct the jury to disregard them, not to order cross-examination. [Government's Supplemental Memorandum Concerning Motion to Quash Subpoenas, August 4, 1981, at 2-3]

In its memorandum the Government also supported granting the Subcommittee's motion to quash, arguing that the information sought by the subpoenas was not relevant, and that the defendants had available to them "within the bounds of the Senate resolution all testimony from Senate witnesses that is relevant and material to this case." [Id. at 5]

On August 25, 1981, the defendants submitted a supplemental memorandum in opposition to the Government's memorandum concerning the motion to quash the subpoenas. The defense posi

tion was that Senator East's statements on the video tapes constituted impermissible hearsay which had to be excluded absent an opportunity to cross-examine the Senator. The memorandum explained:

Senator East's statements on the tapes are far more probative on the issue of whether or not there was disruptive behavior, an essential element of the government's case against the defendants. Senator East's statements indicate that the Senator felt that there was a disruption and that the intervention of the police was necessary to restore order. The statements on the tapes convey the Senator's perceptions and conclusions about the events in the hearing room as a witness to those events. Clearly, the defendants must be entitled to cross-examine on those statements if they are to be submitted to the jury. [Defendants' Supplemental Memorandum in Opposition To Government's Supplemental Memorandum Concerning Motion to Quash Subpoenas, August 25, 1981, at 3]

On September 3, 1981, at the request of the defendants, Judge Taylor signed an order withdrawing the subpoenas at issue and rendering moot the motion to quash.

The trial in the case began on September 23, 1981 and continued until September 29, when the jury found the six women guilty. They were sentenced to a fine of $100 each.

On October 9, 1981, a notice of appeal of the verdict was filed in the District of Columbia Court of Appeals. Defendant Roth subsequently filed a motion on February 10, 1982 to consolidate her appeal [No. 81-1589] with those of the other defendants. [Nos. 811442, 81-1585, 81-1586, 81-1587, and 81-1588] On March 25, 1982, the motion was granted and the appeals ordered consolidated.

On September 15, 1982, the defendants-appellants filed their brief in the appeals court. Initially, the brief argued that the trial court erred in denying the defendants' motion to dismiss the informations based on selective and discriminatory prosecution. As they had previously, the defendants insisted that they had made a prima facie showing of selective prosecution and therefore the burden shifted to the Government to demonstrate that purposeful discrimination did not occur. Since, in their view, the Government did not meet its burden, the defendants contended that under applicable precedent the cases should have been dismissed.

Further, the defendants maintained, even if they were not entitled to an affirmative showing by the Government that the decision to prosecute was not based on impermissible grounds, they were entitled to continue to present evidence to the court on their selective enforcement claim and to that end were entitled to discovery of legislative and executive documents and testimony of "legislative officers." Specifically, the defendants said, they should have been permitted to discover "information from legislative officers concerning the procedures used to select persons to testify at the hearing." [Consolidated Reply Brief of Appellants, September 15, 1982, at 14-15]

The defendants once again raised the argument made in the trial court that committee hearings should be considered separately

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