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man ask you about the practice of . (Exc. of
Record 115 (deposition page 30, lines 15–18)).
their opening brief. [Id. at 19-20) On March 1, 1982, Mr. Moss filed a reply brief which took issue with a number of the specific points raised by the plaintiffs. In particular, the brief addressed the question of Mr. Moss' status as a former Member of Congress:
It is obvious that former Members may raise the speech or debate privilege concerning acts performed while Members or arising from their performance of legislative acts, whatever their status at the time of assertion, and even the District Court recognized this in the original hearings on Chairman Moss' motion to quash. See Brief of MovantAppellant at 32, and United States v. Eilberg, 465 F.Supp. 1080 (E.D. Pa. 1979) (former Member's speech or debate claims concerning statement to Committee in prior session sustained), United States v. Helstoski, 442 U.S. 477 (1979) (former Member, who had appeared before grand juries on 10 prior occasions to testify on his practices in introducing private bills, raised speech or debate clause as bar to introduction of his legislative acts at trial; claim of privilege sustained). And in this connection, H.R. Rule L (50) has been the procedure by which the House considers subpoenas to former Members and employees for testimony or documents arguably within the clause. See, e.g., 126 Cong. Rec. H12139 (daily ed. Dec. 5, 1980) (asserting H.R. Rule L (50) procedures with respect to a former employee of Subcommittee on Oversight and Investigation.) Id. at H12138 (daily ed. Dec. 5, 1980) (same, former employee of Small Business Committee). (Reply Brief of Movant-Appellant,
Chairman Moss, March 1, 1982, at 14] On June 18, 1982, the case was argued before a panel of the appeals court.
On September 28, 1982, the court of appeals issued an opinion reversing the order of the district court holding Mr. Moss in contempt and remanding the case to the lower court with instructions that the contempt order be vacated. [Fremont Energy Corporation v. Seattle Post Intelligencer, 688 F.2d 1285 (9th Cir. 1982)] In essence, the appeals court accepted Mr. Moss' arguments that Rules 37 and 45(f) of the Federal Rules of Civil Procedure barred the contempt finding. The court of appeals held that: (1) under Rule 37, Mr. Moss could not be held in contempt for failing to answer specific questions at a deposition where the subpoena directing him to appear and testify did not direct him to answer any specific questions and no court direction ordering him to answer specific questions had been issued; and (2) under Rule 45(f), Mr. Moss could not be held in contempt for failing to produce documents specified in the subpoena where the record did not show that such documents in fact existed. Additionally, the appeals court agreed with Mr. Moss that Rule 45(f) required the lower court to afford him an opportunity to demonstrate "adequate excuse" for any noncompliance with the subpoena before citing him for contempt.
On November 30, 1982, the district court issued an order stating that it intended to close the proceedings with respect to Mr. Moss' subpoena administratively. The order was based on the fact that the U.S. District Court for the Western District of Washington, where the underlying libel case was being litigated, had granted partial summary judgment dismissing the action by Fremont Energy Corporation. (That decision to grant summary judgment was subsequently appealed.)
Status-Barring a decision by the appeals court reversing the Washington district court and reopening discovery in the case-inchief, the case as it relates to Mr. Moss' deposition is closed.
The complete text of the September 28, 1982 decision of the circuit court is printed in the “Decisions” section of this report at
Tavoulareas v. Washington Post
Civil Action Nos. 80-3032 and 80-2387 (D.D.C.) This action arose after The Washington Post published two allegedly defamatory articles (on November 30 and December 1, 1979) about certain business transactions involving William Tavoulareas, the president of Mobil Oil Corporation, and his son, Peter Tavoulareas. On November 25, 1980, William and Peter Tavoulareas filed suit in the U.S. District Court for the District of Columbia (Civil Action No. 80-3032] against the Post and several of the newspaper's officials and reporters. In sum, the complaint alleged that the articles were libelous in that they suggested that the elder Tavoulareas had used his position at Mobil to set up his son as a partner in a London-based shipping firm, Atlas Maritime Company, and further to assure the success of that venture. According to the plaintiffs, the articles were false, and were published by the defendants either knowing they were false or in reckless disregard of their truth or falsity.
The same plaintiffs had previously filed another complaint alleg. ing libel and slander in the U.S. District Court for the District of Columbia against Philip Piro, the former son-in-law of William Tavoulareas. This suit, filed on September 19, 1980 (Civil Action No. 80-2387], alleged that the defendant made statements, similar to those reported in the Post, to representatives of the Subcomittee on Energy and Power of the U.S. House of Representatives (“Subcommittee"), the Securities and Exchange Commission ("SEC), and the Post.
A third suit was filed by the plaintiffs in the same court on November 5, 1980 against George Comnas, an officer of Atlas during the early period of Peter Tavoulareas' partnership in the venture.
(Civil Action No. 80-2841] The complaint alleged that the defendant also made libelous and slanderous statements about the plaintiffs' business arrangements to the Subcommittee, the SEC, and the Post.
The various complaints sought compensatory damages in the amount of $40 million from the Post defendants, and $10 million each from defendants Piro and Comnas. The plaintiffs also sought exemplary damages of $10 million from each of the defendants.
On February 9, 1981, U.S. District Court Judge Oliver Gasch issued an order consolidating the actions against the Post and Mr. Piro. [Nos. 80-3032 and 80-2387, respectively) The action against Mr. Comnas was not consolidated.
On February 19, 1981, the plaintiffs in the consolidated cases served subpoenas and deposition notices on Subcommittee staff members Michael Barrett, David Schooler and Peter D. H. Stockton. The discovery sought concerned a letter sent by Subcommittee Chairman John Dingell to the Chairman of the SEC regarding possible evidence of violations of Federal security laws by the plaintiffs, outlined in two memoranda prepared by Mssrs. Stockton and Schooler. The plaintiffs also wished to question the Congressional deponents about their contacts with the Post reporter who wrote the allegedly libelous articles which gave rise to the underlying litigation.
On March 17, 1981, the staff members filed a motion to quash the subpoenas, arguing that they: (1) contravened the Speech or Debate Clause of the U.S. Constitution; (2) sought to interfere in an ongoing legislative investigation by questioning committee investigators about their contacts; (3) failed to make any showing that justified such an intrusion with the internal processes of a coordinate branch of government; and (4) did not seek testimony which was material and relevant under applicable authorities.
In an accompanying memorandum, the staff members elaborated on their Speech or Debate Clause argument, noting, first, that the Clause applied to aides as well as Members of Congress and, second, that it protected the investigative as well as the deliberative function of Congress:
As this Court has recognized many times, for purposes of
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, ch. 1)
equally divided court, 553 F.2d 1270 (D.C. Cir. 1976) (en
March 17, 1981, at 4-5) Further, the staff members argued, the motivation for the investigation conducted by the Subcommittee, and the methods employed in that investigation were beyond the reach of judicially compelled discovery under the Clause.
Finally, the Congressional deponents asserted that the plaintiffs had failed to make any showing that the staff members were the "source" for the Post articles. The staff members rejected the theory that simply because the plaintiffs would have to demonstrate to the court that they had exhausted all alternative means to learn the source of the information before the reporter could be compelled to answer such questions, that the plaintiffs must be allowed to question the committee staff."[T]he invocation of confidentiality by the Washington Post, however appropriate, does not entitle Plaintiffs to conduct a fishing expedition in congressional waters, particularly in view of the doctrine of separation of powers . . as well as the presumptive privilege of confidentiality [Id. at 3-4]
On April 6, 1981, the plaintiffs filed a memorandum in opposition to the motion to quash, contending that the information sought from the Congressional deponents-relating to the identity of the defendants' sources—was critical to the action (specifically with respect to proving malice or reckless disregard for the truth). The theory of the memorandum was that the Subcommittee investigation was not a formal investigation at all but a "private", "informal” and “impromptu” undertaking “prompted by Post reporters with the goal of disseminating this information in exclusive Post stories." Plaintiffs' Memorandum of Points and Authorities in Opposition to Congressional Deponents' Motion to Quash, April 6, 1981, at 11] Because it was not a formal investigation by the Subcommittee, and there was "no evidence that other Members of Congress on the . . . Subcommittee knew of this inquiry" [Id. at 9), the plaintiffs maintained, it was outside the ambit of any legislative privilege. They argued:
The true nature of the Subcommittee's inquiry-dissemination of information-is beyond the protections provided for Congress in the Constitution. The Supreme Court has
unequivocally stated that dissemination of information to
Relying on this precedent, the Court of Appeals for the
[Id. at 12] The plaintiffs insisted that it was the motives and activities of the Post defendants, not the Congressional deponents, in which they were interested, and they stated that they were "not seeking to harrass the Subcommittee's staff or impede any ongoing investigation.” [Id. at 13] In any event, the plaintiffs emphasized, precedent made it clear that any legislative privilege was not absolute in scope, particularly where the dissemination of materials outside Congress was involved. For this proposition they cited, among other cases, Hutchinson v. Proxmire, 443 U.S. 111 (1979) and Benford v. American Broadcasting Companies, Inc., 502 F. Supp. 1148 (D.Md. 1980). (See page 203 of this report for a discussion of the latter case.)
On April 10, 1981, the Congressional staff members filed a reply memorandum characterizing the plaintiffs' arguments as a "blatant and totally inappropriate attempt to ‘question' the procedures and bona fides of a legislative investigation-exactly the evil proscribed by the Speech or Debate Clause.” [Congressional Deponents' Reply Memorandum, April 10, 1981, at 1]
The staff members attacked the plaintiffs' contentions on two fronts. First, they asserted, the case law demonstrated that any actions which are "facially or apparently legislative in nature within the protection of the Speech or Debate Clause. (Id. at 2] Second, they maintained, courts “will not tolerate inquiry into legislative motives, even if they are alleged to be unworthy.” (Id.) The staff members noted in particular that “informal” inquiries are 'part and parcel of the legislative process and are an integral part of the deliberative and communicative process' by which Members participate in the business of legislating.” (Id. at 3] Finally, the plaintiffs' analysis of the "dissemination exception" to legislative privilege was dismissed by the staff members as premature and unnecessary since no showing had been made that the staff members had in fact disseminated any information.