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Department to-against a then Assistant Attorney General so we see that the unseemliness appears to shift depending on the particular circumstances involved.

It has been used by the Department in the past.

Finally, the action is premature. The contempt process has been commenced by a vote of the House. It remains, however, to be completed and those into whose jurisdiction the matter now passes have not acted.

We presume, as we must, that if this case is thrown out, Mr. Harris will do his duty under the law.

His letter to Speaker O'Neill disclaims any other intention. It says, I control the timing of this matter and while this civil lawsuit is pending, I am exercising my discretion not to go forward.

Finally, the speech and debate clause, we believe, your Honor, that assuming the Department can get over all these other hurdles, the speech and debate clause sounds the death knell to this action.

In a procrustean effort to bend the clause to their theory of this case, the Department maintains that the clause speaks only to interference in ongoing activity and that since the House has completed its action here, there is no purpose to be served by invoking the clause.

First, the clause prohibits not only questioning of legislative acts, broadly defined as anything done generally in a session of Congress with respect to the business before it, but it protects Members against the burden of defending themselves in an action.

Now, the reading urged by the Department is one typically urged by litigants who seek to avoid the clear commands of the speech and debate clause and I refer the court to the United States v. People's Temple, a case from this district, Judge Aubrey Robinson, 515 F. Supp. 246.

While it is true that the primary purpose of the clause involves precluding direct hardship, a broader purpose is also served.

First, the legislative process is ongoing. It has been interrupted for the moment in one respect by a contumacious witness. It proceeds to go forward to this day and in our view, the Department has misread and distorted Eastland.

Eastland in a footnote talks about the fact that the Court should deal expeditiously as a matter of procedure with claims that the clause bars an action.

The Department would have the Court believe that it is only ongoing actions which are prohibited by the clause.

The COURT. How does this case differ from the United States v. AT&T?

Mr. BRAND. It differs in several significant respects, your honor.

First of all, there were no-that was an action brought by the United States against a private party, AT&T into which legislators intervene to protect their interest so it is different from that respect.

And secondly, I will quote in my next sentence a distinction that
AT&T drew which is dispositive of this case.
The Department quotes Eastland as follows-AT&T as follows:

“Individual Members of Congress are not impermissibly
questioned in any other place regarding their investigatory

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activities merely because the validity and permissibility of their actions are adjudicated.” Then the Department ellipses a key sentence and goes on and says, “As is clear from Watkins, Barenblatt and Senate Select Committee, however, the clause does not seek”—“does not and was not intended to immunize congressional investigatory actions from judicial review.” The sentence that is ellipsed is as follows:

"In these cases, referring to Watkins, Barenblatt and Senate Select Committee, and unlike Eastland, a challenge to congressional activity was raised as a defense. The distinction should not be dismissed as merely procedural since it sheds light on the nature and the purpose of the

protection accorded by the clause." 567 F.2d, 129.

And the purpose under Dombrowski is to prevent Members from having to defend themselves and that's why this case is four square on Eastland.

Eastland also says quite clearly "When it applies, the clause provides protection against civil as well as criminal action and against actions brought by private individuals as well as those initiated by the executive branch.”

There is no question that this is an action initiated by the executive branch.

Now, even if we were to accept the proposition that the purpose of the clause is the test, we believe it is impossible to suggest that legislative independence will not be harmed if suits can proceed against Members and the House and their elected officers when it issues subpoenas and votes for contempt. There will be executive intimidation and there will be questioning in court, two things which the clause is designed to protect.

Finally, the Department says that the clause is not a problem because this is all past activity.

The United States v. Helstoski, amongst others, conclusively determines that past actions may not be the subject of the suit under the clause either.

In that case the Court ruled that the prosecution could not introduce references to past legislative acts in a bribery prosecution against Congressman Helstoski even though he was long gone from the House of Representatives when that prosecution arose.

"References to past legislative acts of a Member cannot be
admitted into evidence without undermining the values

protected by the clause."
442 U.S. at 489 and later the Court said, "It is clear from the lan-
guage of the clause that protection extends only to an act that has
already been performed.
That is at 490.

Finally, the Department contends that the certification of the contempt and its delivery, its mere delivery by the Clerk, certification by the Clerk and the Speaker and delivery are non-legislative acts which permit maintenance of the act under Powell.

First, the act of certification, an act performed wholly within the House of Representatives is intregal to the legislative process because it is a step in the enforcement of Congress' subpoenas and it is a part of what the Court has called the essential means of compulsion by which the House obtains information.

The suit cannot be saved by artifically naming the Clerk of the Doorkeeper who had nothing whatsoever to do with this action, who never executed any commands outside the House of Representatives and so they have not implemented an arrest as in Kilbourn nor have they deprived anyone of their rights of emoluments of office or prevented the performance of the duties of office as in Powell and there is no distribution of actionable material outside the House of Representatives as in Doe.

The officers here simply certified and delivered. That is part of the communicative process spoken of in Gravel. It is a communication from one public official to another about matters within their respective jurisdiction.

To hold that that would open up the Congress to suits, I think, would be an effective revocation of the speech and debate clause.

The Court. Now the subpoena asks for documents relating to sites listed as national priorities pursuant to certain regulations.

Isn't it true that at the time the subpoena was issued there was no list of priority sites in existence?

Mr. BRAND. Well, Judge, that goes to the merits, I suppose, of the controversy and would, under 192, be entitled to be raised by the Department and by Miss Gorsuch as a defense to any prosecution that might eventuate from this certification.

The COURT. Is there any question that the subpoena might be defective or invalid?

Mr. BRAND. There is no question in my mind that it isn't but on this motion to dismiss, that is not a subject for relevant pursuit in our view. That is a defense to the prosecution as it has always been and witnesses have raised deficiencies and defects in subpoenas many, many times in this process, some successfully and some not.

The Court. Hasn't the executive branch agreed to subject all documents to a screening process to ensure that none would be improperly withheld?

Mr. BRAND. Again, Your Honor, that goes to the merits of the controversy.

The issue we believe that is before the Court now is may the Executive sue the Congress.

The Court. What effort has the legislative branch made to resolve this controversy?

Mr. BRAND. It made many efforts, Your Honor, before the citation of contempt both during the committee process and thereafter and even before this matter was brought to the court. Those were unsuccessful.

The Court. Do the defendants contend that sensitive documents found in open law enforcement files must always be turned over to the subcommittee?

Mr. BRAND. Do the defendants contend that?
The COURT. Yes.

Mr. BRAND. Again, Your Honor, that, I think, is something that goes to the merits of the controversy.

As I understood Your Honor's order, the hearing was limited to the House of Representatives' motion to dismiss partially on the rationale that to question the legislature about what happened in the committee and what happened on the floor would be impermissible, so I really don't think I am able to address the merits until the threshold issue of jurisdiction and the immunity of the House of Representatives from suit is resolved.

That has to be a subject for later discussion if the Court resolves jurisdictional issues against us.

Now, finally, the Department raises the Speaker's January 5, 1983, letter as an indication that the Congress has left its legislative moorings and coerced and attempted to influence improperly the Department of Justice in the implementation of 192.

First, the Speaker's letter is no more of an illicit attempt to coerce than the President's messages to Congress are, which are sent on a daily basis seeking to obtain legislation, reporting on the budget or providing information to the Congress.

On its face, it does not seek to influence and secondly, it was in response to a letter from the United States attorney.

Now, the analogy that the Department draws to a criminal prosecution, the United States v. Johnson, where a Member attempted to influence the Department of Justice to quash an indictment based on campaign contributions and fees that went to that Member, I think, is not only an affront to the Speaker of the House of Representatives but totally inapposite as a matter of law.

These are official communications between the branches and to hold that they are extra legislative perambulations or libelous or actionable because they seek to coerce, I think, is an impossible construction of those letters on their face or as they traditionally have been viewed.

Finally, what we think this suit represents is nothing less than an attempt by the Department by executive fiat to usurp the legislative role in deciding how matters will be resolved and to declare in effect that 192 is null and void for witnesses who want to challenge congressional subpoenas before they are turned over to the Courts for adjudication.

And over 100 years ago, the Supreme Court declared a principle from which there is no dissent, no person in this country is so high that he is above the law.

It needs to be reiterated again today by dismissal of this suit. 2 U.S.C. 192 is the lawful and constitutional way to proceed. It will provide Miss Gorsuch in the event it eventuates into a prosecution with the full rights and panoplies and safeguards afforded by the Constitution.

Thank you, Your Honor.
Mr. MCGRATH. Good morning, Your Honor.

My name is Paul McGrath and I am the Assistant Attorney General in charge of the Civil Division of the Department of Justice.

Your Honor, although it isn't relevant to this motion at all, I would like to start out by putting one thing to one side.

At the tag end of Mr. Brand's presentation, he suggested that we were claiming in some way that the letter Speaker O'Neill sent to Mr. Harris, the U.S. attorney, was an illicit attempt to coerce action.

Your Honor, I want to just state for the record at this point that the plaintiffs are not suggesting that Mr. O'Neill or any Member of Congress has engaged in any conduct that was bad, illicit, immoral or in any other way improper. I don't believe the footnote referred to has any such suggestion but just to make it absolutely clear for this record, we are not making any such suggestion.

I felt it important to state that at the outset for what I think are obvious reasons.

Your Honor, the controversy here between the executive branch and the legislative branch raises just one legal issue.

When Mrs. Gorsuch who was acting at the direct instructions of the President withheld documents from the House under a claim of executive privilege, did she act properly?

Now, we say she did.

The documents are sensitive law enforcement materials and their disclosure would only give aid and assistance to the targets of ongoing investigations and their disclosure to Congress, we believe, would seriously risk political interference with what are delicate settlement and enforcement problems.

Now, the House disagrees, of course, with us on the merits of this case, but the only issue before this Court this morning is whether this Court can decide that single issue in this civil case.

The Court. In the amended complaint, you have dropped the claim for injunctive relief.

Mr. MCGRATH. That is correct, Your Honor. The only relief we are seeking is for a declaratory finding that Mrs. Gorsuch acted properly in not producing the documents. That's the only relief we are seeking

I think it is significant that both sides here agree that this Court may decide that question. It is the position of the plaintiff that the Court should decide the question and may properly decide this question in this civil suit.

That what we are seeking in effect is an ordinary application of the declaratory judgment act, albeit in fact this is a somewhat unusual if not unique factual setting.

The Court. Why is this declaratory judgment action preferable to the criminal procedures established by Congress?

Mr. MCGRATH. Well, that clearly is what the House would like. They would like Mrs. Gorsuch indicted and would like her to raise this single legal issue in that context.

These are the reasons why we regard it as critical that the executive privilege issue be decided in this civil lawsuit.

First of all, the executive branch legally has been injured in a criminal fashion already.

What has happened here? A high official of the executive branch has been held in contempt of Congress which under section 2which under title II, U.S.C., section 192 is deemed a misdemeanor.

There has been a finding of Congress that she acted criminally when following the instructions of the President of the United States and that has been certified to the U.S. attorney for prosecution.

Your Honor, in the real world, that kind of finding, that kind of cloud hanging over the executive branch, has to adversely affect the functioning of the executive branch and in particular its func

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