Petition — National Committee v. Morgenthau
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8 3 — 1 1 2 4 es i Ry; US
JAN 9 1984
| [ae ALEXANDER L. STEVAS,
Set Kk
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
NATIONAL COMMITTEE and NATIONAL EXECUTIVE
COMMITTEE OF THE NATIONAL CAUCUS OF LABOR
COMMITTEES,
Petitioners,
vs
ROBERT MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK
County and HAROLD WILSON, ASSISTANT DISTRICT
ATTORNEY OF NEW YORK COUNTY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MAYER MORGANROTH
24901 Northwestern Highway
Southfield, Michigan 48075
ODIN P. ANDERSON
One Longfellow Place
Boston, Massachusetts 02114
Attorneys for Petitioners
QUESTIONS PRESENTED
1. Whether a federal court can dismiss a civil rights complaint
sua sponte and without adequate notice, when the complaint
seeks injunctive and declaratory relief against a state grand jury
investigation and contains non-conclusory allegations that the
investigation is being conducted by the District Attorney in bad
faith and to retaliate against a political organization for exercising
its constitutional rights.
2. Whether a federal judge can refuse to recuse himself on a
motion for recusal by a party before him which had published
vitriolic attacks on his competency and integrity prior to his
appointment to the Court.
TABLE OF CONTENTS
PAGE
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nus i dsccedncccascnccescocsseescccescess 2
Constitutional, Statutory and Rules Provisions
ache cneccdccnesncsacccesses 2
ES EE 2-5
Reasons for Granting the Writ:
I. The Court of Appeals Erred In Upholding The
District Court's Sua Sponte Dismissal Of A
Civil Rights Complaint Which Sought An
Injunction and Declaratory Relief Against A
State Grand Jury Investigation And Which
Contained Non-Conclusory Allegations That
The Investigation Was Being Conducted By
The District Attorney In Bad Faith And To
Retaliate Against Petitioners For Exercising
Their Constitutional Rights. ...................... 5-17
A. The District Court erred in dismissing the
Complaint sua sponte without giving
petitioners adequate notice of the
contemplated action and without affording
them an opportunity to respond. ........... 6-7
B. The allegations of the Complaint were
sufficient to state a claim for relief on the
ground that the state grand jury
investigation was being conducted in bad
faith and to retaliate against and to deter
petitioners in the exercise of their
Constitutional rights. ......................... 7-9
C. The Court of Appeals acted contrary to
accepted principles of law and applicable
decisions of this Court in holding that
petitioners would not be entitled to
injunctive relief under any set of facts
which they could prove in support of the
allegations of the Complaint. ................ 10-17
PAGE
Il. Judge Pratt Erred In Refusing To Recuse
Himself On The Ground That His Impartiality
Might Reasonably Be Questioned Because Of
Vitriolic Attacks On His Competency And
Integrity By Petitioners Prior To His
Appointment To The Court Of Appeals .... 17-20
Conclusion
iv
TABLE OF AUTHORITIES
PAGE
Cases:
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .... s
American Construction Co. v. Jacksonville, T. & K.
Ry. Co., 148 U.S. 372 (1893)..........cccecceeeeeeeee. 20
Anderson National Bank v. Luckett, 321 U.S. 233
SD SR re hs ee a en, Pee 6
Armstrong v. Rushing, 352 F.2d 836 (9th Cir.
a ate nae g th alanehuatGasdedualatencieschsduaane 7
Bell v. Hood, 327 U.S. 678 (1946)....................05. 6
Blizzard v. Frechette, 601 F.2d 1217 (1st Cir. 1979).. 19
California Dive: sified Promotions, Inc. v. Musick,
Fx be [Lo ae! es 6,7
Conley v. Gibson, 355 U.S. 41 (1957)...............605. Ss
Conrad v. Delta Air Lines, Inc., 494 F.2d 914 (7th
Ne Bee i)
Cross v. United States, 336 F.2d 431 (2nd Cir.
Midi nctuvidnsalesdkn ins dos dedtabinmacaawtatcksuscehen )
Dodd v. Spokane County, 393 F.2d 330 (9th Cir.
Bs wetnina or inaruats ddl dacbdedcwerdacaesunk oun uawcwes 7
Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978)....... 11-13,16
Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981),
cert. denied, 452 U.S. 916 (1981)..................... 10,11
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)......... 13
In Re Grand Jury (Schmidt), 619 F.2d 1022 (3rd Cir.
ates Uhae rt a okisuhs oil madhanadaathesiond cubs 15,16
In Re Murchison, 349 U.S. 133 (1955).................. 19-20
Jenkins v. McKeithen, 395 U.S. 411 (1969)............. i)
Juidice v. Vail, 430 U.S. 327 (1977) ............c. cece 14,15
PAGE
Kaylor v. Fields, 661 F.2d 1177 (Sth Cir. 1981) ....... 15
Lewis v. State of New York, 547 F.2d 4 (2nd Cir.
Ry at ee OC ac. <,, h
Literature, Inc. v. Quinn, 482 F.2d 372 (lst Cir.
1973) a aU eenaSiaebadn nk dans aed ee bSen week coetutsrastenwe 6.7
Moran cv. Dillingham, 174 U.S. 153 (1899)............. 20
Pilla v. American Bar Association, 542 F.2d 56 (Sth
SR IRICEN ERR Si Rinne ae Lie ea OD 20
Potashnick v. Port City Construction Co. , 609 F.2d
1101 (5th Cir. 1980), cert. denied, 449 U.S. 820
Rae gee SA I ee ane ap Se aN eS 18-19, 20
Roberts v. Bailar, 625 F.2d 125 (6th Cir. 1980) ....... 20
Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972).
cert. denied, 409 U.S. 1024 (1972).................... 10,11
Spires v. Hearst Corp., 420 F Supp. 304 (C.D. Cal.
RAPE SEE OP Rie Pe ROE tas OO yn Pal EL 19
United States v. Calandra, 414 U.S. 338 (1974)....... 15
United States v. Camden, 545 F.2d 257 (1st Cir.
1976), cert. denied, 430 U.S. 909 (1977) ............. 19
United States v. Gigax, 605 F.2d 507 (10th Cir.
ER = Ab aL a A ee ST Sn ge a SO 18
United States v. M.H. Bronson Distributing Co., 398
ITED: TED 6 ines euccbocecacesecdeccessuses y
Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979) .. 8,11,
13-14
Younger v. Harris, 401 U.S. 37 (1971). .................. 10,13,14,16
Constitutional Provisions, Statutes and Rules:
United States Constitution, Amendment 1............. 5
United States Constitution, Amendment 4............. 5
United States Constitution, Amendment 5............. 5
Vi
PAGE
United States Constitution, Amendment 9............ 5
United States Constitution, Amendment 14........... 5
RS ER el aa Se Pe ee 4,17,18,20
28 U.S.C. $1331, 1343 (1)-(3), 2201, 2202............. 4
RS SR) ER ineaean 5
EG MC, MD Glas. oc ec cnsaceawaccuackcthswesccecs 6
2nd Cir. R. §0.14..... Pe eee ees. | Fae aE er ae 5 20
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 19583
NATIONAL COMMITTEE and NATIONAL EXECUTIVE
COMMITTEE OF THE NATIONAL CAUCUS OF LABOR
COMMITTEES,
Petitioners,
VS.
ROBERT MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK
CouNTy and HAROLD WILSON, ASSISTANT DISTRICT
ATTORNEY OF NEW YORK COUNTY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
OPINIONS BELOW
In an Order dated April 13, 1983, the Honorable Vincent L.
Broderick, District Judge in the United States District Court for
the Southern District of New York, denied petitioners’ motions
for a temporary restraining order and a preliminary injunction
and dismissed petitioners’ Complaint for reasons stated on the
record at oral argument.
By Order dated October 3, 1983, the Honorable George C.
Pratt, Circuit Judge, denied petitioners’ motion for recusal for
reasons stated on the record at oral argument.
The Order of the District Court was affirmed by the United
States Court of Appeals for the Second Circuit by Order dated
October 11, 1983. No formal opinion was issued by the Court of
Appeals.
2
JURISDICTION
The judgment of the Court of Appeals was entered on Octo-
ber 11, 1983. The jurisdiction of this Court is invoked pursuant
to 28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY AND RULES
PROVISIONS INVOLVED
1. United States Constitution, Amendment |
(reproduced in Appendix).
to
United States Constitution, Amendment 4
(reproduced in Appendix).
3. United States Constitution, Amendment 5
(reproduced in Appendix).
4. United States Constitution, Amendment 9
(reproduced in Appendix).
5. United States Constitution, Amendment 14
(reproduced in Appendix).
6. 28 U.S.C. § 455
(reproduced in Appendix).
7. 28 U.S.C. § 1331, 1343 (1)-(3), 2201, 2202
(reproduced in Appendix).
8. 42 U.S.C. § 1983
(reproduced in Appendix).
9. 2nd Cir. R. § 0.14
(reproduced in Appendix).
STATEMENT OF THE CASE
The petitioners, National Committee and National Executive
Committee of the National Caucus of Labor Committees
(“NCLC’), filed a Civil Rights Complaint accompanied by sup-
3
porting affidavits, a Motion for Preliminary Injunction, and a
Memorandum of Law in Support of Motion for a Preliminary
Injunction in the United States District Court for the Southern
District of New York on March 25, 1953.'
The Complaint sought a permanent injunction against a New
York County Grand Jury investigation of the printing and distri-
bution of a pamphlet, “Profiles of the Times”, as the investiga-
tion concerned petitioners. The complaint also sought a per-
manent injunction against other specified bad faith investiga-
tions conducted by the defendant New York County District
Attorney in conjunction with private individuals and organiza-
tions and other law enforcement authorities against the NCLC
political organization and its members. In addition, the Com-
plaint sought a declaratory judgment that the specified law
enforcement investigations were conducted in bad faith under
color of state law and violated the constitutional rights of the
NCLC and its members. (A 18-43).
The Motion for Preliminary Injunction sought to enjoin the
enforcement of New York County Grand Jury subpoenas issued
to NCLC members and employees of PMR Printing Company
(“PMR”) on November 16, 1982 and subsequently, to stay the
return date of these subpoenas during the pendency of the
federal action, and to likewise enjoin the issuance and enforce-
ment of any new subpoenas to members of the NCLC.
On March 30, 1983, Petitioners requested, by Order to Show
Cause, a hearing for a Temporary Restraining Order against
enforcement of the subpoenas at issue. This application was in
response to the New York County District Attorney's notifica-
tion that he intended to call employees of PMR subpoenaed on
November ]6, 1982 before the Grand Jury on April 4, 1983.
The hearing on this request was originally scheduled for April
4, 1983, but was rescheduled by the Court to April 8th, with
‘ The Complaint and some of the supporting affidavits are reproduced in
the Appendix. The other documents are part of the Record below Petitioners
have requested the Court of Appeals to certify and transmit the Record to thas
Court.
4
the District Attorney rescheduling the appearance of the Grand
Jury witnesses until after the hearing.
Oral argument was held before the Honorable Vincent L.
Broderick on April 8, 1983, on petitioners’ application for a
temporary restraining order. After hearing arguments of coun-
sel, Judge Broderick denied the request for a temporary re-
straining order. (Al2-17) In addition, the Judge denied a
preliminary injunction and dismissed petitioners’ Complaint for
failure to state a cause of action. (Al2-17) Petitioners took an
appeal of this decision to the Second Circuit Court of Appeals.
Prior to oral argument on petitioners’ appeal to the Court of
Appeals, petitioners moved for the Honorable George C. Pratt,
Circuit Judge, to disqualify himself, pursuant to 28 U.S.C.
Section 455, from the panel hearing the appeal. (A85-92) This
motion was based on the fact that the petitioners had previously
published numerous articles which were sharply critical of Judge
Pratt and which questioned his integrity. Petitioners had cam-
paigned and lobbied nationally for Judge Pratt's impeachment
and to block his appointment to the Court of Appeals. After
hearing argument, Judge Pratt refused to disqualify himself, and
participated in the decision of the Court of Appeals. (A7-10)
That decision affirmed the dismissal of petitioners’ Complaint in
a summary order. (Al-6)
Petitioners Complaint resulted from a search conducted pur-
suant to a warrant about the premises of PMR, a printing com-
pany owned and managed by members of the NCLC, on
November 16, 1982 by seventeen (17) individuals identifying
themselves as detectives from the New York City Police De-
partment. At the time of the search, twenty-three (23) individ-
uals, constituting the entire day shift and management of PMR,
and Barbara Boyd, a member of the legal staff of the NCLC,
were subpoenaed to appear before the New York County Grand
Jury investigating the printing and distribution of “Profiles of
the Times”. All subpoenas were made returnable at the same
time and on the same day.
Jurisdiction for petitioners’ Complaint in Federal District
Court was based on 28 U.S.C. Sections 1331, 1343(1)-(3), 2201,
and 2202.
2
Petitioners Complaint alleges that the NCLC and its mem-
bers are the targets of the New York County Grand Jury inves-
tigation concerning the printing and distribution of “Profiles of
the Times”.? It is alleged that the Grand Jury proceedings and
other specified law enforcement actions have been brought in
bad faith and for purposes of harassment, and to retaliate for and.
to deter the petitioners and their members from exercising
various specified rights, including freedom of speech, press, and
assembly, which are protected by the United States Constitu-
tion. The Grand Jury proceedings and other contemporaneous
law enforcement investigations specified in the complaint are
alleged to contravene, under color of state law, rights guaran-
teed the petitioners and their members under the First, Fourth,
Fifth, Ninth and Fourteenth Amendments to the Constitution.
The Complaint alleges that petitioners will suffer irreparable
harm as a result of defendants’ unlawful and unconstitutional
actions.
REASONS FOR GRANTING THE WRIT
THE COURT OF APPEALS ERRED IN UPHOLD-
ING THE DISTRICT COURT'S SUA SPONTE DIS-
MISSAL OF A CIVIL RIGHTS COMPLAINT
WHICH SOUGHT AN INJUNCTION AND DE-
CLARATORY RELIEF AGAINST A STATE
GRAND JURY INVESTIGATION AND WHICH
CONTAINED NON-CONCLUSORY ALLEGA-
TIONS THAT THE INVESTIGATION WAS BEING
CONDUCTED BY THE DISTRICT ATTORNEY
IN BAD FAITH AND TO RETALIATE AGAINST
PETITIONERS FOR EXERCISING THEIR CON-
STITUTIONAL RIGHTS.
* “Profiles of the Times” is a parody pamphlet resembling, in some respects,
the book review section of the Sunday New York Times
6
A. The District Court Erred in Dismissing The Complaint
Sua Sponte Without Giving Petitioners Adequate Notice
Of The Contemplated Action and Without Affording Them
An Opportunity To Respond.
The Second Circuit's opinion failed to discuss the petitioners’
argument that the District Court committed procedural error in
dismissing their Complaint. The hearing before Judge Broderick
was concerned with petitioners application for interim relief,
and the only papers filed by the defendants were an affidavit
and memorandum of law in opposition to petitioners’ motion for
a temporary restraining order. Defendants never filed a Rule
12(b)(6) motion to dismiss, and the District Court Judge did not
inform petitioners that dismissal of the Complaint was a possi-
bility until after oral argument, when he denied preliminary
relief and dismissed the Complaint for failure to state a cause of
action.
The Courts of Appeals have often been*critical of sua sponte
dismissals of complaints, and have scrutinized such dismissals
carefully. See, e.g., Lewis v. State of New York, 547 F.2d 4, 5-6
(2nd Cir. 1976); California Diversified Promotions, Inc. v. Mu-
sick, 505 F.2d 278, 280-281 (9th Cir. 1974); Literature, Inc. v.
Quinn, 482 F.2d 372, 374 (1st Cir. 1973). As the court stated in
Lewis v. State of New York, supra, when a motion to dismiss
for failure to state a claim is filed by the defendant pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, the plain-
tiff receives notice of the challenge to the sufficiency of the
Complaint, and has an opportunity to respond by seeking leave
to amend or setting forth arguments supporting the validity of
his claim. Lewis, supra at 5. This Court has noted the funda-
mental importance of adequate notice and an opportunity to be
heard, Anderson National Bank v. Luckett, 321 U.S. 233, 246
(1944), and has cautioned against the premature dismissal of a
complaint. Bell v. Hood, 327 U.S. 678, 681-683 (1946).
In the instant case, petitioners did not receive adequate no-
tice that dismissal of the Complaint was contemplated, and had
no opportunity to submit written argument in opposition to the
proposed dismissal.’ See Dodd v. Spokane County, 393 F.2d
330, 334 (9th Cir. 1965). Indeed, it has been held that such a
sua sponte dismissal without adequate notice of the proposed
action and an opportunity to address the issue may alone justify
reversal. Literature, Inc. v. Quinn, 482 F.2d at 374. See also
Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 1965).
The Court of Appeals should have closely scrutinized the
District Court's action and the procedure it followed to deter-
mine if its dismissal of the Complaint was justified under all the
circumstances. California Diversified Promotions, Inc. v. Mu-
sick, 505 F.2d at 280. Instead, the Second Circuit affirmed the
dismissal in a brief summary order which did not consider the
propriety of the procedure followed by the District Court. While
the opinion of the Court of Appeals stated that a sua sponte
dismissal should be scrutinized with the utmost care, (A-3) the
brevity of the opinion indicates that the Court failed to give the
issues the scrutiny they required.
B. The Allegations Of The Complaint Were Sufficient To
State A Claim For Relief On The Ground That The State
Grand Jury Investigation Was Being Conducted In Bad
Faith And To Retaliate Against And To Deter Petitioners
In The Exercise Of Their Constitutional Rights.
In upholding the dismissal of petitioners’ Complaint for fail-
ure to state a claim, the Court of Appeals stated that there was
no basis for suggesting that the petitioners were the targets of
the grand jury investigation, and that their allegations as to bad
faith and harassment were stated in “mere conclusory terms,
without any factual support.” (A-3). An examination of the Com-
plaint, however, clearly demonstrates that the petitioners’ alle-
gations were sufficient to state a claim under established legal
principles, and that the Court of Appeals was incorrect in ruling
to the contrary.
This Court has stated that when the sufficiency of a complaint
is at issue:
* The memoranda filed by the petitioners in District Court dealt with the
applications for a temporary restraining order and a preliminary injunction.
the accepted rule [is| that a complaint should not be
dismissed for failure to state a claim unless it appears
bevond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him
to relief.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
In a civil rights case under 42 U.S.C. Section 1983, the
plaintiff must allege and prove that the defendant has deprived
him of a federal right, and that in doing so the defendant was
acting “under color of law.” Adickes v. S.H. Kress & Co., 398
U.S. 144, 150 (1970).
Petitioners Complaint clearly meets t'iese requirements. The
Complaint alleges that the grand jury proceedings and other law
enforcement investigations have been undertaken in bad faith
by the defendants in retaliation for and to deter petitioners and
their members from exercising certain specified constitutional
rights, including freedom of speech, press, and assembly. This
abridges petitioners federal right to pursue their constitutional
rights free from state interference or retaliation. Wilson v.
Thompson, 593 F.2d 1375, 1385 (5th Cir. 1979). The defendants
are the District Attorney and an Assistant District Attorney,
respectively, of New York County, and their actions are suffi-
ciently alleged to be under color of law.
This Court stated in Conley v. Gibson, 355 U.S. at 47: “the
Federal Rules of Civil Procedure do not require a claimant to
set out in detail the facts upon which he bases his claim.” In
fact, petitioners Complaint goes beyond the minimum require-
ments of the federal rules, and does state with a great deal of
specificity the facts underlying petitioners’ claim that they are
the targets of an investigation brought in bad faith and for
purposes of harassment.
The Complaint specifies reports of confidential sources to
Jeffrey Steinberg, a member of the NCLC. These reports to
Steinberg which are detailed in the Complaint support the
conclusion that the NCLC is the target of the grand jury inves-
y
tigation, that the proceedings were undertaken not for the pur-
poses of obtaining valid convictions but solely for specified
improper purposes directed against petitioners, and that the
grand jury process is being utilized for purposes of generating
information for civil lawsuits and other governmental investiga-
tions pursuant to a general plan of financially bleeding the
NCLC.
In addition to these allegations, the Complaint sets forth
additional facts which support petitioners’ claims. These facts
include prior dealings between the parties demonstrating ani-
mosity on the part of the defendants toward petitioners, hostile
dealings between the petitioners and organizations and persons
associated with defendant Morgenthau, the dubious nature of
the alleged criminal violations, simultaneous investigative ac-
tions by state and federal authorities, and the fact that the search
and the subpoenas were directed at the printer for a political
organization which sustains itself by publishing and dissemi-
nating its views.
In considering a motion to dismiss, the allegations of the
Complaint must be taken as true, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). It is not up to the Court of Appeals at this
stage to disbelieve the allegations and find that the petitioners
are not targets. As to the allegations of bad faith, petitioners
cannot be required to plead with any more specificity than they
have done. Bad faith is a state of mind, and as such is rarely
susceptible of direct proof, but must generally be proved by
circumstantial evidence. United States v. M.H. Bronson Dis-
tributing Co., 398 F.2d 929, 943 (6th Cir. 1968).
A plaintiff alleging bad faith on the part of a defendant should
not be held to stringent standards at the pleading stage before
any discovery is had, since the facts evidencing such bad faith
will often be in the possession of the opponent. Cases—such as
the instant one—in which a crucial issue involves motivation or
intent are particularly inappropriate for summary disposition.
See Conrad v. Delta Air Lines, Inc. , 494 F.2d 914, 918 (7th Cir.
1974); Cross v. United States, 336 F.2d 431, 433 (2nd Cir. 1964).
C. The Court Of Appeals Acted Contrary To Accepted
Principles Of Law And Applicable Decisions Of This Court
In Holding That Petitioners Would Not Be Entitled To
Injunctive Relief Under Any Set Of Facts Which They
Could Prove In Support Of The Allegations Of The
Complaint.
As a basis for upholding the District Court's ruling, the Court
of Appeals stated that the petitioners had made only conclusory
allegations of irreparable harm, and that there was no factual
basis for those allegations. (A-3). However, such a statement is
unsupportable in light of the allegations of the Complaint and
the relevant case law
In Younger v. Harris, 401 U.S. 37 (1971), this Court dis-
cussed the concept of irreparable injury in the context of federal
intervention in state criminal proceedings. Younger held that,
absent extraordinary circumstances, bad faith or harassment in
a state prosecution was a necessary prerequisite to the irrepara-
ble injury which must be shown in order to justify federal
intervention in the state proceedings. 401 U.S. at 53-54.
Certain types of injury, in particular, the cost, anxi-
ety, and inconvenience of having to defend against a
single criminal prosecution, could not by themselves
be considered ‘irreparable’ in the special legal sense
of that term. Younger, supra, at 46.
The threat to a plaintiff's rights must be of the type that can
not be eliminated by his defense against a single criminal pros-
ecution.
In the instant case, petitioners allege in their Complaint that
the New York Grand Jury investigation was instigated in bad
faith to harass the petitioners because of their exercise of their
constitutional rights, and to deter them in the exercise of those
rights. It has been held that a showing of bad faith or harassment
is equivalent to a showing of irreparable injury under Younger
v. Harris. Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981),
cert. denied, 452 U.S. 916 (1981); Shaw v. Garrison, 467 F.2d
113, 120 (5th Cir. 1972), cert. denied, 409 U.S. 1024 (1972).
Irreparable injury independent of the bad faith prosecution
need not be established. Fitzgerald v. Peek, supra at 944. The
court in Shaw noted that there is a federal right to be free from
bad faith prosecutions. Shaw v. Garrison, supra at 120.
In addition to their right to be free from bad faith prosecu-
tions, petitioners have a federal right to pursue their constitu-
tional rights free from state interference or retaliation. Wilson
v. Thompson, 593 F.2d 1375, 1385 (5th Cir. 1979).
Petitioners allege in their Complaint that the motivating force
behind the grand jury investigation is defendants desire to
retaliate and deter petitioners in the exercise of their First
Amendment rights. The grand jury investigation is alleged to be
part ofa bad faith investigative plan by defendants. The plan
involves the grand jury investigation of “Profiles of the Times”
and contemporaneous law enforcement investigations and a de-
famatory publicity campaign based upon the law enforcement
investigations. The bad faith law enforcement and_ publicity
campaign will “financially bleed” and discredit the political or-
ganization, disrupt and sever relationships between the NCLC
and law enforcement, intelligence and government news sources,
disrupt the political organization's printing operation, “PMR”,
and destroy the social fabric of the NCLC by unlawful intimi-
dation of individual members of the NCLC.
The threat to petitioners’ federally protected rights cannot be
eliminated, therefore, by their defense against a single criminal
prosecution. The threatened injury to the NCLC is not depen-
dent upon the outcome of any prosecution which might result
from the grand jury proceedings. In fact, the injury does not
even depend on the procurement of indictments against the
petitioners or any member of their political organization.
Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978), demonstrates
how a party can be threatened with irreparable harm by a grand
jury which does not result in or was not ever intended to result
in prosecution of the party.
Ealy involved grand jury investigation of the fatal shooting of
a black youth by law enforcement officers in Mississippi. When
12
the grand jury failed to return indictments, members of the
Marshall County United League circulated a leaflet attacking
the local law enforcement investigation and accusing the District
Attorney of improperly prosecuting the case before the grand
jury. The grand jury was called back into session and grand jury
subpoenas were issued to officers and members of the United
League and for records and minutes of the League. The grand
jury conducted an investigation into the origin of the leaflet in
order to ascertain whether those responsible had personal
knowledge of the facts of the shooting and it questioned League
members about internal organizational affairs, financial affairs
and the League's activities. The Ealy grand jury recommended
in its final report that transcripts of the proceeding be released
to the news media, the general public and specified law enforce-
ment agencies.
The League then filed a Civil Rights action against the Dis-
trict Attorney, the County Attorney, and a judge, alleging that
the grand jury inquiry into the League's activities was con-
ducted in bad faith for purposes of harassing and intimidating
the plaintiffs in violation of their First Amendment rights. An
injunction was requested restraining defendants from interfer-
ing in the exercise of those rights, and from taking further action
based on the grand jury investigation.
In reviewing the District Court's denial of relief, the Fifth
Circuit initially noted that plaintiffs had a fundamental right to
speak their minds free of unwanted governmental restraint.
Ealy, supra, at 226. While the investigative powers of a grand
jury are broad, the “First Amendment can serve as a limitation
on the power of the grand jury to interfere with a witness’
freedoms of association and expression.” Id. at 227. The Court
held that plaintiffs had suffered irreparable injury and would
suffer further irreparable injury if an injunction did not issue,
aud reversed the District Court's decision denying relief. Id. at
235.
The instant situation parallels Ealy in several respects. Peti-
tioners allege that, as in Ealy, the motivating force behind the
decision to convene the grand jury was to harass the petitioners
13
in the exercise of ‘heir constitutional rights, including the rights
of speech and association. In both cases, the plaintiffs are polit-
ical organizations that incurred the animosity of the defendant
_law enforcement officials because of the exercise of their consti-
tutional rights. Regardless of the outcome of the grand jury
proceedings, petitioners will be irreparably harmed by the on-
going investigation, much as the plaintiffs in Ealy were harmed,
unless an injunction is granted. By focusing on the argument
that the petitioners have not been sufficiently threatened with
prosecution, the Court of Appeals and the District Court ig-
nored the real basis for petitioners’ claim of irreparable injury.
In holding that the petitioners failed to sufficiently allege
irreparable harm, the Second Circuit opinion fails to come to
grips with the basic principles underlying Younger v. Harris
and its progeny. The essential holding of Younger is that equi-
table principles do not permit a federal court to interfere with a
state prosecution instituted in good faith, even if the statute
which is being enforced is alleged to be unconstitutional. Younger
v. Harris, 401 U.S. at 755.
However, this basic premise of Younger has no application
when the state proceeding is instituted in bad faith. See Huff-
man v. Pursue, Ltd., 420 U.S. 592, 611 (1975). As the Fifth
Circuit stated in Wilson v. Thompson, 593 F.2d at 1382, a suit
to enjoin a good faith prosecution differs from a suit to enjoin a
bad faith prosecution in that the plaintiff's federal right not to
be subjected to a bad faith prosecution, or a prosecution brought
for harassment purposes, cannot be vindicated by undergoing
the prosecution. While Younger principles require that a person
being prosecuted in good faith undergo the state prosecution
and attempt to vindicate his federal rights in the state proceed-
ing, such principles do not apply when the prosecution itself
effects the constitutional violation. Wilson supra, at 1383.
In the present case, the very actions of the defendants in
conducting the grand jury investigation,—as opposed to any
indictments or convictions which might result,—constitutes the
constitutional harm. As Wilson held, “irreparable injury is suffi-
ciently established if the federal plaintiff demonstrates that the
l4
state prosecution against him was brought in bad faith for the
purpose of retaliating for or deterring the exercise of constitu-
tionally protected rights.” Wilson v. Thompson, 593 F.2d at
1383. While there is no prosecution in the instant case, logic
dictates that the same principle should apply when a grand jury
investigation is instituted in bad faith in order to retaliate for
and deter the exercise of a party's constitutional rights.
Unlike the situation presented in Younger, petitioners con-
stitutional rights can not adequately be protected in the state
proceeding. In the Younger situation, where the unconstitution-
ality of a state statute is alleged, the defendant can raise that
constitutional issue in the state proceeding and thereby attempt
to vindicate his federal rights. Thus, the defendant suffers no
irreparable harm by being required to undergo a single prose-
cution brought in good faith. However, in the instant case the
petitioners are unable to adequately protect and vindicate their
federal rights in the same manner. Since the injury will result
from the very existence of the grand jury investigation and the
manner in which the investigation is being pursued by the
defendants, the petitioners’ rights will not be adequately pro-
tected by defending against any subsequent prosecution that
arises out of the investigation. Since petitioners thus have no
adequate opportunity to protect their federal rights in the state
proceeding, they will be irreparably injured unless the federal
courts intervene at this stage.
The notion of an adequate opportunity to present one’s fed-
eral claims in the state proceeding is a basic premise of the
Younger doctrine, Juidice v. Vail, 430 U.S. 327, 337 (1977), and
is inextricably intertwined with the question of irreparable harm
in the present case. If a party is accorded an adequate opportu-
nity to pursue constitutional claims in the ongoing state pro-
ceeding, then a federal court, applying equitable principles, will
not interfere in the proceeding. However, where the state pro-
cedure is inadequate to protect the party's constitutional rights,
such as in the instant case, irreparable harm may occur if the
federal courts do not intervene in the state proceedings by way
of injunction. In such a situation, consistent with Younger prin-
15
ciples, a federal court of equity may have a duty to act. See
Juidice v. Vail, supra at 339 (Stevens, J. concurring).
Petitioners have no adequate remedy which they can pursue
in the state proceedings. As discussed above, the nature of the
threatened injury precludes petitioners from protecting their
rights by waiting to be indicted and pursuing relief thereafter.
Contrast, Kaylor v. Fields, 661 F.2d 1177, 1181 (Sth Cir. 1981)
(Plaintiff claimed that prosecutor disseminated accusations to
press in attempt to deprive him of the right to an impartial jury
panel in the event of prosecution. The Court held that if plaintiff
was charged, he had ample means, including voir dire and a
change of venue, to vindicate this right in state court).
Unless the defendants intend, ultimately, to indict the entire
NCLC political association for the printing and distribution of
“Profiles of the Times”, petitioners will have no forum other
than the instant lawsuit to pursue their claims.
The inadequacy of petitioners’ state remedies is further dem-
onstrated by what has already occurred in the New York state
courts. As alleged in the Complaint, petitioners moved to inter-
vene in state court and quash the grand jury subpoenas issued
to members of the NCLC. However, the New York courts ruled
that the political organization petitioners lacked standing to
intervene or to quash the subpoenas. As a result, petitioners are
unable to adequately raise in state court the issues of bad faith
and harassment of the political organization which form the basis
of the constitutional violation.
Nor can the petitioners’ claims be adequately protected by
the individuals who have been subpoenaed to testify before the
grand jury. As this Court recognized in United States v. Calan-
dra, 414 U.S. 338, 343-345 (1974), the scope of a grand jury's
powers is far ranging, and a witness subpoenaed to testify before
a grand jury is afforded few protections. In In Re Grand Jury
(Schmidt), 619 F.2d 1022, 1026 (3rd Cir. 1980), the Third Cir-
cuit recognized that in certain circumstances, claims of grand
jury abuse may properly be brought by third parties who have
not themselves been subjected to grand jury process, since
otherwise their rights can not be adequately protected. In the
16
present case petitioners rights cannot be adequately protected.
Petitioners were not permitted to intervene into the state court
proceedings. The individuals subpoenaed cannot adequately
protect the constitutional rights of the petitioners. Petitioners
have clearly alleged sufficient facts to show that state remedies
are inadequate and that they will suffer irreparable harm if the
grand jury investigation is not enjoined.
In holding that petitioners Complaint failed to state a cause
of action, the Second Circuit quoted the statement from Younger
v. Harris that “persons having no fears of state prosecution
except those that are imaginary or speculative, are not to be
accepted as appropriate plaintiffs in such cases.” (A 2-3). This
statement by the Second Circuit clearly illustrates how the court
below misconstrued the nature of petitioners’ claim and failed
to recognize that a grand jury investigation can abridge a party's
constitutional rights without ever resulting in an indictment and
prosecution.
The quoted portion of Younger relates to the claim of certain
persons who felt threatened by the very existence of the alleg-
edly unconstitutional statute and the pending prosecution against
another, but who were not themselves threatened with any
prosecution. Younger, 401 U.S. at 41-42. This has no applicabil-
ity to petitioners claims. Petitioners allege that their rights will
be infringed by the very existence of the grand jury investigation
and the manner in which it is being pursued, not by any prose-
cution which may result. In fact, petitioners fully expect that no
valid indictments can be returned against the NCLC or against
any NCLC members.
As the Fifth Circuit recognized in Ealy v. Littlejohn, supra, a
grand jury investigation itself may abridge constitutionally pro-
tected rights and cause irreparable injury to individuals and
organizations. In In Re Grand Jury (Schmidt), 619 F.2d at 1026-
1027, the Third Circuit elaborated an example of this principle.
It noted that a political candidate's rights would be infringed by
service of grand jury subpoenas upon his workers to discourage
them from soliciting nominating petitions or election support.
17
The Second Circuit's opinion, however, seems to imply that
only prosecution of the NCLC political organization itself could
result in sufficient harm to sustain a civil rights injunctive action.
The Second Circuit also seems to have reasoned that an organi-
zation which has not been subpoenaed to appear before a grand
jury cannot be a target of the grand jury's investigation and that
a party can not be harmed by a bad faith grand jury investigation
unless it is threatened with indictment and prosecution. These
premises are clearly incorrect yet they form the basis of the
Second Circuit's affirmance of the dismissal of the Complaint.
An organization can obviously be the target of an investigation
without itself being subpoenaed or otherwise subjected to the
grand jury's process. A political organization can clearly be
irreparably harmed by a bad faith grand jury investigation with-
out itself being threatened with indictment or prosecution.
Il.
JUDGE PRATT ERRED IN REFUSING TO RE-
CUSE HIMSELF ON THE GROUND THAT HIS
IMPARTIALITY MIGHT REASONABLY BE
QUESTIONED BECAUSE OF VITRIOLIC AT-
TACKS ON HIS COMPETENCY BY PETITION-
ERS PRIOR TO HIS APPOINTMENT TO THE
COURT OF APPEALS
Petitioners filed their motion to recuse Judge Pratt immedi-
ately upon becoming aware that he would be sitting on the
panel which would hear their appeal. Judge Pratt ruled on the
motion in open court prior to hearing oral argument on the
merits, and refused to recuse himself from sitting on the appeal.
(A7-9). By written order dated October 3, 1983, the motion was
denied “for reasons placed on the record at the beginning of oral
argument.” (A4-6). Judge Pratt participated in and signed the
Second Circuit's opinion affirming the dismissal of petitioners
Complaint.
28 U.S.C. Section 455(a) provides that a judge “shall disqual-
ify himself in any proceeding in which his impartiality might
18
reasonably be questioned.” (emphasis supplied). The standard
is an objective, rather than a subjective one. Potashnick v. Port
City Construction Co., 609 F.2d 1101, 1111 (5th Cir. 1980),
cert. denied, 449 U.S. 820 (1980).
The issue is not whether the judge is impartial in fact,
but rather, whether a reasonable man might question
his impartiality under all circumstances. United States
v. Gigax, 605 F. 2d 507, 511 (10th Cir. 1979).
A judge is required to exercise his discretion in favor of disqual-
ification if he has any question about the propriety of his sitting
in a particular case. Potashnick v. Port City Construction Co.,
supra at 1112.
In their recusal motion, petitioners stated that Lyndon La-
Rouche and other members of the NCLC published numerous
articles which attacked Judge Pratt for his handling of the
“ABSCAM"” corruption cases when he was a United States Dis-
trict Court Judge, and which disputed Judge Pratt's integrity
both personally and judicially and called for his removal from
the bench. (A85-92). Petitioners publicly campaigned for Judge
Pratt’s impeachment, and vigorously and publicly opposed his
appointment to the Second Circuit Court of Appeals. The facts
upon which petitioners based their recusal motion were set forth
in detail in an affidavit filed together with the motion, and copies
of articles published and materials circulated which attacked
Judge Pratt were also attached and filed with the Court. (A85-
92).
Petitioners motion, taken together with the attached affidavit
and exhibits, demonstrates that recusal of Judge Pratt was re-
quired by 28 U.S.C. Section 455(a). The Fifth Circuit court
noted in Potashnick:
Because 28 U.S.C. § 455(a) focuses on the appearance
of impartiality, as opposed to the existence in fact of
any bias or prejudice, a judge faced with a potential
ground for disqualification ought to consider how his
participation in a given case looks to the average per-
son on the street.
19
Potashnick v. Port City Construction Co., 609 F.2d
at 1111.
Certainly, “the average person on the street”, having been made
aware that articles published by the petitioners accused Judge
Pratt of having “introduced abhorrent Nazi criminal law prece-
dents into the American legal system” and referred to “the
irrationalist rantings of Judge Pratt”, would believe that Judge
Pratt could not impartially adjudicate matters involving the
petitioners. As Potashnick noted, the objective standard of Sec-
tion 455(a) replaced the subjective standard of the prior statute.
The purpose of the new rule was “to promote the public's
confidence in the impartiality and integrity of the judicial pro-
cess... .” Potashnick v. Port City Constructten Co., supra at
1111. See United States v. Camden, 545 F.2d 257, 265 (1st Cir.
1976). cert. denied, 430 U.S. 909 (1977); Spires v. Hearst Corp..,
420 F.Supp. 304, 307 (C.D. Cal. 1976) (judge disqualified him-
self because of complimentary article published about him by
the defendant).
Recusal by Judge Pratt was mandated even if he believed as
he stated on the record, (A8-9), that he could impartially adju-
dicate the appeal. The statute's concern is the objective appear-
ance of impartiality. Blizzard v. Frechette, 601 F.2d 1217, 1220
(1st Cir. 1979) (recusal may be required “even though the judge
himself may subjectively be confident of his ability to be even-
handed”).
This concern with the appearance of impartiality “stems from
the recognized need for an unimpeachable judicial system in
which the public has unwavering confidence. . . . Any question
of a judge's impartiality threatens the purity of the judicial
process and its institutions.” Potashnick v. Port City Construc-
tion Co., supra, at 1111.
As this Court has noted, the appearance of fairness and im-
partiality is intertwined with considerations of due process:
A fair trial in a fair tribunal is a basic requirement of
due process. Fairness of course requires an absence
of actual bias in the trial of cases. But our system of
20
law has always endeavored to prevent even the prob-
ability of unfairness. . . . [T]o perform its high func-
tion in the best way “justice must satisfy the
appearance of justice’.
In re Murchison, 349 U.S. 133, 136 (1955) (citation
omitted).
For this reason, a judge must err on the side of caution and
disqualify himself in a questionable case. Roberts v. Bailar, 625
F.2d 125, 129 (6th Cir. 1980); Potashnick v. Port City Construc-
tion Co., supra at 1112.
Judge Pratt's recusal at the time of oral argument would not
have delayed oral argument or a determination of the appeal,
since the Second Circuit's rules provide that two judges shall
constitute a quorum. 2nd Cir. R. § 0.14. Thus, the principles of
28 U.S.C. Section 455 need not have bowed to any considera-
tions of necessity or convenience. Contrast Pilla v. American
Bar Association, 542 F.2d 56, (8th Cir. 1976).
Since Judge Pratt refused to recuse himself, this Court should
review his decision by writ of certiorari. Unless review is granted,
no tribunal will have reviewed Judge Pratt’s ruling refusing to
disqualify himself. In view of the fact that the standard of Sec-
tion 455(a) is an objective one, such a result is not warranted.
Since the appearance of impartiality is the critical factor, it is
important that this court review the objective facts and deter-
mine for itself the propriety of Judge Pratt’s decision. Judge
Pratt may have felt that he could be impartial in adjudicating
the appeal. This is not, however, the relevant test.
The issue is not affected by the fact that two unchallenged
judges joined Judge Pratt and ruled against the petitioners on
the rherits of their appeal. If Judge Pratt was required to dis-
qualify himself, then he was incompetent to sit on the appeal,
and the decision of the Second Circuit was not rendered by a
competent court and must be reversed. Moran v. Dillingham,
174 U.S. 153, 158 (1899); American Construction Co. v. Jack-
sonville, T. & K. Ry. Co., 148 U.S. 372, 387 (1893).
21
CONCLUSION
For all ot the foregoing reasons the Writ of Certiorari to the
United States Court of Appeals for the Second Circuit should
,
be granted
Respectfully submitted
MIAYER MORGANROTH
24901 Northwestern Highway
Southfield Michigan 48075
OpDIN P. ANDERSON
One Longfellow Place
Boston, Massachusetts 02114
Att rneus for Pe fittoners
No
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1983
NATIONAL COMMITTEE
and NATIONAL EXECUTIVE COMMITTEE OF THE
NATIONAL CAUCUS OF LABOR COMMITTEES
Petitioners,
Vs
ROBERT MORGENTHAU, DISTRICT ATTORNEY OF NEW YORK
CouNTY and HAROLD WILSON, ASSISTANT DISTRICT
ATTORNEY OF NEW YORK COUNTY.
Respondents
APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
INDEX TO APPENDIX
Decision and Order of the United States Court of
Appeals for the Second Circuit Affirming
Dismissal of the Complaint
Notice of Motion and Short Form Order ot Circuit
Judge Ceorge ( Pratt Denving Motion tor
Recusal
Decision of Circuit Judge George C. Pratt
Denving Motion for Recusal 4-7-A-9
Order and Decision of Vincent L. Broderick
U.S.D.J., Denying Temporary and Preliminary
Injunctive Relief and Dismissing the
( omplaint 4-10-A-17
Complaint 4-]15—A-42
Affidavits of Kenneth Kronberg, Nancy Shavin
Barbara Boyd, Jeffrey Steinberg and Robert
Greenberg in Support of the Complaint 4-43-A-5S4
Motion for Recusal and Supporting Affidavit of
Barbara Boyd 4-S5-—A-92
Constitutional Provisions, Statutes and Rules
Involved in the Case 4.93—A-99
A-]
DECISION AND ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
AFFIRMING DISMISSAL OF THE COMPLAINT
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the 11th day of October one thousand
nine hundred and eightv-three
Present
HONORABLE RICHARD J. CARDAMONE
Circuit Judge
HONORABLE LAWRENCE W. PIERCE
Circuit Judge
HONORABLE GEORGE C. PRATT
Circuit Judge
Filed October 11, 1983. United States Court of Appeals for the
Second Circuit. A. Daniel Fusaro, Clerk
National Committee and National Executive Committee of the
National Caucus of Labor Committees,
Plaintiffs-Appellants,
—against—
Robert Morgenthau, District Attorney of New York County and
Harold Wilson, Assistant District Attorney of New York County,
Defendants-Appellees.
ORDER
Docket No.
83-7326
Appeal from the United States District Court for the Southern
District of New York.
Plaintiffs National Committee and National Executive Com-
mittee of the National Caucus of Labor Committees (“NCLC”
appeal from an order of the United States District Court for the
Southern District of New York, Vincent L. Broderick, Judge,
denying plaintiffs’ motions for a temporary restraining order and
a preliminary injunction and dismissing their complaint for fail-
ure to state a claim. The NCLC now contends that its complaint
was sufficient to state a claim and seeks remand for a hearing on
the merits.
It is well settled that a complaint is subject to dismissal if it
appears to a certainty no relief can be granted under any set of
facts that can be proved in support of its allegations. Conley v.
Gibson, 355 U.S. 41, 45 (1957). See also Koch v. Yunich, 333
F.2d 80, 85 (2d Cir. 1976) (“Complaints relying on the civil
rights statutes are plainly insufficient unless they contain some
specific allegations of fact indicating a deprivation of civil rights,
rather than state simple conclusions.”). After examining the
complaint and supporting affidavits, we reject appellants’ con-
tention and find that the district court properly dismissed under
Federal Rule of Civil Procedure 12(b)(6).
In order to obtain an injunction against the New York County
Grand Jury investigation, appellants must show “(a) irreparable
harm and (b) either (1) likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make them
a fair ground for litigation and a balance of hardships tipping
decidedly toward the party requesting the preliminary relief.”
Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. , 596 F.2d 70, 72
(2d Cir. 1979). First, with respect to the showing of irreparable
harm, appellants have made only conclusory allegations that the
investigation “will cause ... irreparable harm and function
solely to chill plaintiffs in the exercise of their Constitutional
rights.” There is no indication, in either the complaint or sup-
porting affidavits, of a factual basis for these allegations.
In addition, appellants’ complaint fails to state a cause of
action. As the Supreme Court has stated, “persons having no
fears of state prosecution except those that are imaginary or
speculative, are not to be accepted as appropriate plaintiffs in
A-3
such cases.” Younger v. Harris, 401 U.S. 37, 42 (1971). There is
no basis, in the case at bar, for suggesting that appellants are
the targets of the investigation; in fact, neither has ever been
subpoenaed. Moreover, appellants allegations that the investi-
gation was brought in bad faith and for purposes of harassment
are stated in mere conclusory terms, without any factual sup-
port.
We acknowledge that, under the Conley v. Gibson standard,
a sua sponte dismissal under Rule 12(b)(6) should be scrutinized
with the utmost care. Even under liberal pleading rules, how-
ever, the complaint is clearly insufficient. No matter what set of
facts the appellants may ultimately prove in support of its alle-
gations, we believe that it will not suffice to satisfy the usual
equitable tests. Accordingly, this Court cannot find any reason
for interfering with what appears to be a legitimate and properly
conducted state grand jury proceeding.
The order dismissing plaintiffs’ complaint is affirmed.
Ss
Richard J. Cardamone, U.S.C.]J.
S
Lawrence W. Pierce, U.S.C.].
S
George C. Pratt, U.S.C.]J
N.B. Since this statement does not constitute a formal opinion
of this court and is not uniformly available to all parties, it shall
not be reported, cited or otherwise used in unrelated cases
before this or any other court.
\-4
NOTICE OF MOTION AND SHORT FORM ORDER OF
CIRCUIT JUDGE GEORGE C. PRATT DENYING
MOTION FOR RECUSAL
PAGE ]
Second Circuit Rule 27(a) governing use of this
form is reprinted on reverse of Page 2. Note
requirement that supporting affidavits be attached
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NATIONAL COMMITTEE, et ano
Plaintiffs-Appellants
VS
ROBERT MORGENTHAL, et ano
Use short titl Detendants-Appellees.
Docket Number: 83-7326
NOTICE OF MOTION
state type of motion
for Recusal of Honorable George Pratt, Circuit Judge
MOTION BY: (Name and tel. no. of law firm and of attorney
in charge of case
ODIN ANDERSON, Attorney for Plaintiffs-Appellants
617-720-1800
Has consent of opposing counse
A. been sought? _) Yes x] No
B. been obtained? (J) Yes [KX] No
Has service been effected? Yes {k] No
Is oral argument desired? (J Yes [XK] No
Substantive motions only
Requested return date
See Second Circuit Rule 27(b 10/3/83
Has argument date of appeal been set
A. by scheduling order? x] Yes CJ No
B. by firm date of argument notice? x] Yes (J No
C. If Yes, enter date 10/3/83
\-95
Judge or agency whose order is being appealed
Vincent Broderick, U.S.D.]
Southern District of New York
OPPOSING COUNSEL: (Name and tel. no. of law firm and
of attorney in charge of case
DONALD J. SIEWART, Attorney for Defendants-Appellees
212-553-9000
EMERGENCY MOTIONS, MOTIONS FOR STAYS &
INJUNCTIONS PENDING APPEAL
Has request for relief been made below? [J Yes (CJNo
See F.R.A.P. Rule
Would expedited appeal eliminate need for
this motion? _) Yes _} No
If No, explain why not:
Will the parties agree to maintain the status ) Yes (©) No
quo until the motion is heard?
Brief statement of the relief requested:
Recusal of Honorable George C. Pratt, Circuit Judge, from hear-
ing oral argument and from any further proceedings on this
appeal pursuant to 28 USC 455(a) and 455(b
Complete Page 2 of This Form
By: (Signature of Appearing Appellant or Petitioner:
attorney for: (Name of {X) Plaintiff (0 Defendant
party
Appellee or Respondent:
CJ Plaintiff () Defendant
National Committee, et ano.
Signed name must
be printed beneath Date
ODIN ANDERSON 10/2/83
A-6
eatin ~ ORDER __—
Kindly leave this space blank
IT IS HEREBY ORDERED that the motion, for reasons
placed on the record at the beginning of oral argument be and
it hereby is denied
FILED OCTOBER 3, 1983 UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
10/3/83
Date
S George C. Pratt
Circuit Judge
A-7
DECISION OF CIRCUIT JUDGE GEORGE C, PRATT
DENYING MOTION FOR RECUSAL
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NATIONAL COMMITTEE and
NATIONAL EXECUTIVE COMMITTEE OF
THE NATIONAL CAUCUS OF LABOR
COMMITTEES,
Plaintiffs-Appellants,
—against- §3-K P-7326
ROBERT MORGENTHAL, District Attorney
of New York County and HAROLD
WILSON, Assistant District Attorney of
New York County
Defendants-Appellees.
BEFORE: HON. LAWRENCE W. PIERCE,
HON. GEORGE C. PRATT,
HON. RICHARD J. CARDAMONE,
EXCERPT FROM PROCEEDING HELD OCTOBER 3, 1983
™ = *
APPEARANCES
ATTORNEYS FOR PLAINTIFFS-APPELLANTS
ODIN P. ANDERSON, Esq.
One Longfellow Place
Boston, Massachusetts 92114
ROBERT Rossl, Esq.
ATTORNEY FOR DEFENDANTS-APPELLEES
DONALD SIEWART, Esq.
* = .
THE Court: We have a motion addressed to Judge Pratt with
respect to a motion made by the Plaintiffs-Appellants.
I believe you made the motion addressed to Judge Pratt?
A-5
MR. ANDERSON: May it please the Court. my name is Odin
Phillips Anderson. I am co-counsel with Robert Rossi for the
Plaintiffs-Appellants, National Committee
With the permission of the Court, Mr. Rossi will argue the
I
appeal on the sheet, although his name doesn’t appear on the
brief. I, as Counsel on the brief, have been ill for a substantial
period of time and have been unable to prepare for oral argu-
ment.
And so I address simply the motion filed this morning and
served on the District Attorney's Office. directed to the recusal
of Justice Pratt.
THE Court: That you — you — Are you going to address
that, Mr. —
MR. ANDERSON: I see no reason to address it further. I think
it speaks for itself. except to say that the motion is brought
pursuant to 28 USC 455 Section A and B]
JUDGE Pratt: I was given the motion papers this morning. |
read page | of the form and page 2 of the form
Page 2 sets forth the factual basis for the motion, which says
that Plaintiffs-Appellants have published numerous articles
sharply critical of me and questioning my integrity. And they
had campaigned and lobbied nationally for my impeachment
and to block my appointment to this Court, all arising out of my
conduct of Abscam Trials while I was a District Judge
This is the first I had heard of any of this. I flipped through
the next papers, and I see that there are some articles there
which I have not read. So I am not influenced by what is in the
articles.
I do not feel, in any way, uncomfortable about sitting on the
case. When I received it in preparation for the argument this
morning, | had no recognition of who the Plaintiffs-Appellants
were. They are totally unknown to me, other than as partici-
pants in this litigation. So I see no reason to recuse myself
I was not given copies of articles written by the Plaintiffs-
Appe/lants that had anything to do with me in the past. I was
AQ
not aware that they had opposed, unsuccessfully opposed, my
appointment to this bench
I hold no ill will towards them. It is a free country. Lots of
people have said lots of unfavorable things about me. Very few
have said a few favorable things. I feel I am perfectly able to
handle the case on the merits and I deny the motion
I hereby certify that the foregoing is a true and accurate tran-
script of the taperecording
s/ Judith Roman
JUDITH ROMAN — HEAR-
ING REPORTER
4-10
ORDER AND DECISION OF VINCENT L. BRODERICK,
U.S.D.J.,. DENYING TEMPORARY AND PRELIMINARY
INJUNCTIVE RELIEF AND DISMISSING THE
COMPLAINT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
NATIONAL COMMITTEE, et al.. 83 Civ. 2335 (VLB
Plaintiffs, ORDER
—against- U.S. DISTRICT
COURT
ROBERT M. MORGENTHAL., et al.. FILED
Defendants APRIL 14, 1983
X S$.D. OF N.Y.
VINCENT L. BRODERICK, U.S.D.J
For reasons set forth on the record at argument on April §,
1983, plaintiffs motion for a temporary restraining order and
preliminary injunction is denied, and the complaint is dis-
missed.
SO ORDERED.
Vincent L. Broderick, U.S.D.J.
Dated: New York, New York
April 13, 1953
MICROFILM APRIL 14, 1983
Copies Mailed to Counsel of Record ,
A TRUE COPY
RAYMOND BURGHARDT
By Freeman
Deputy Clerk
A-1]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE AND
NATIONAL EXECUTIVE COMMITTEE
OF THE NATIONAL CAUCUS OF
LABOR COMMITTEES,
Plaintiffs,
—against— §3 Civ. 2338
ROBERT MORGENTHAL, District
Attorney of New York County, and
HAROLD WILSON, Assistant District
Attorney of New York County
Defendants
April 8, 1983
4:30 p.m
BEFORE:
HON. VINCENT L. BRODERICK, District Judge
APPEARANCES:
ODIN P. ANDERSON, ESQ.,
Attorney for Plaintiffs
HAROLD WILSON, A.D.A., ESQ.,
Attorney for Defendants
Reces >
Open court
THE COURT: The first question which must be addressed is
that of the standing of the plaintiff. While this is something
which would be subject to re-examination as more facts develop,
I find for the purposes of the particular application which has
been made for a temporary restraining order and a preliminary
injunction that the allegations of the complaint provide a basis
to find that the plaintiff can bring this action.
I have reviewed in the colloquy with counsel the thrust of the
allegations as I see them and the status of the grand jury inves-
tigation. I do not find on the basis of what is before me any
warrant to interfere with the lawful functioning of the grand
jury
The fact of the printing and the attempted distribution of the
publication the Profiles of the Times is apparently not in dis-
pute. It is not in dispute that the New York District Attorney's
office acting upon the complaint of a party directly injured by
that publication was investigating the circumstances of that sit-
uation. This is an entirely appropriate function for a District
Attorney.
The complaint in this matter is, as I said during the earlier
colloquy, an exhaustive complaint. It covers the activities of
various entities in various parts of the world over an extended
period of time. The New York District Attorney s office and the
grand jury is operating in the matter before me on a much more
finite basis. It is investigating allegations that crimes were com-
mitted within its jurisdiction.
There is not before me any suggestion that the persons sub-
poenaed were not present at the premises, the press at the time
that the search warrant was executed.
Questions that were raised in state court with respect to the
propriety of the actual preparation of subpoenas by police offi-
cers on instructions from the District Attorney are not before
me. That is a matter of state law. It would be a highly unusual
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and, in my judgment, highly improper step for this court to
interfere with the District Attorney in the exercise of its func-
tions and to interfere with the grand jury in the exercise of its
functions.
I have found that for the purposes of this application, the
plaintiff has standing.
I have further found, however, that the plaintiff has made no
showing of probable irreparable injury. The investigation that is
going on is a grand jury investigat: a. It is one that may or may
not result in the bringing of charges of criminal activity against
one or more people. There is certainly no evidence before me
at the present time that indicates that any of those grand jury
subpoenas were directed to members of the plaintiff core mem-
bers and, even if they had been, on the circumstances that are
before me, it would have been quite appropriate to serve such
subpoenas if those persons were involved or thought to be
involved in an activity that was being investigated.
I have considered the various cases in which interference by
a federal court with law enforcement activity has been upheld
and I do not see how any of those cases pertain to the situation
before me. It would be an unhealthy situation, indeed, in my
judgment, if the federal court, except in extremely unusual
circumstances, interfered with a state district attorney's office
and with a grand jury in the investigation of possible crime.
In analyzing the complaint and in accepting as true for pur-
poses of this application the allegations of that complaint, I find
nothing in it that suggests any basis for intervention by this
court. The complaint, as I have already mentioned, ranges
widely. It covers a vast period of time and it covers activities in
various areas of the globe. The very volume of the allegations in
the complaint points up, in my judgment, the sparsity of those
allegations which relate in any way to the District Attorney's
office or which relate in any way to the investigation which is
currently under way. This is not a situation where the District
Attorney is conducting an investigation where there has been
no wrongdoing and where there has been no complaint about
wrongdoing. There has been wrongdoing in that a publication
A-l4
has been circulated under false pretenses and there has been a
complaint about that wrongdoing.
I can envision no untoward consequences to the plaintiff in
this action by that investigation continuing and I can see, there-
fore, no basis upon which preliminary relief would be justified.
There is, in this case, it seems to me, a convergence of the
relief that is asked for in this complaint—a temporary restraining
order, preliminary injunction and permanent injunction—they
are all asked with respect to this investigation and other inves-
tigations by the District Attorney's office and yet this, I think, is
the only investigation which is complained about in the com-
plaint and given this disposition of the application for a tempo-
rary restraining order and preliminary injunction, it seems to
me that it will be appropriate at this time to dismiss the com-
plaint.
Yes, sir.
MR. ANDERSON: Would your Honor consider taking less
drastic action than dismissing the complaint at this stage and,
excepting as we must your Honors denial for our request for a
temporary restraining order, would your Honor simply take
action on that and deny our request for a temporary restraining
order which would obviously not in any way impede the grand
jury from going forward in its ordinary course?
THE COURT: How are you injured, Mr. Anderson? Because
you undou.tedly will appeal my ruling and if you do appeal and
I am reversed, the whole matter will be reinstated including the
complaint.
MR. ANDERSON: Rather than following that route, your
Honor, I am suggesting there might bé another route equally
applicable without any of the concerns your Honor has men-
tioned of interfering with, as your Honor characterized, the
legitimate investigatorial powers of the grand jury.
I would ask your Honor to deny our request, if you will, for a
temporary restraining order but schedule, without in any way
impacting the grand jury at this stage a hearing on a motion for
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a preliminary injunction which evidence could be taken to allow
us to support further and meet the burdens that your Honor has
suggested we have not made a sufficient showing of at this stage?
THE COURT: No, I will not do that at this stage. I will not
entertain an application for a preliminary injunction at this
stage
Mr. Anderson, your complaint is directed to the present
investigative activity of the New York District Attorney's office
and if you don't receive relief now, which I have denied you, |
find it hard to see how vou could receive it in the future?
MR. ANDERSON: Well, maybe I'm an optimist, your Honor?
I have a feeling that in fact if evidence were presented by way
of live testimony that an entirely different pall might be cast on
this—
THE COURT: This is a part of my ruling. I will not at this
point conduct an investigation into the propriety of the ongoing
grand jury investigation and I cannot see how the passage of
time would change that. It may be at some time the grand jury
will take action and then it would seem to me you might have a
different complaint
If you can tell me some reason why I should not dismiss the
complaint, I certainly will consider it, but I can't see a reason
not to dismiss it and I don't really see how you are adversely
affected by the dismissal?
MR. ANDERSON: Without quarreling your Honor's findings
of fact as to our failure to demonstrate probable irreparable
injury, I would have to quarrel with your Honor’s factual find-
ings. I don't think that’s appropriate. I have a different point of
view suffice it to say.
It is my feeling, your Honor, that if your Honor is con-
cerned—and I can understand how very difficult it must be for
a federal jurist to be asked to take an action which directly
would affect a state proceeding and an ongoing investigation.
If your Honor’s determination at this stage is, as I understand
it to be, that while we do have standing, although you didn’t
A-16
enunciate the particular grounds upon which you predicated
that determination, we do have standing, we have failed to
demonstrate at least one of the criteria, the likelihood of irrepar-
able harm, then I would ask your Honor simply to, if you will,
split the apple. You don't want to interfere with the state pro-
ceeding at this stage, fine, we have not made a sufficient show-
ing. Give us an opportunity by way of the taking of evidence
without in any way stalling, staying or enjoining or restraining
the investigation in its current stage to allow us to schedule a
hearing on a preliminary injunction. I don’t think that certainly
hurts the State of New York. It preserves this as a live contro-
versy which I believe is the most appropriate posture for it to
be in and would give us the opportunity to meet the burden
which your Honor suggests we have not at this stage met. It is
essentially as simple as that
THE COURT: Mr. Wilson, do you have any view?
MR. WILSON: Your Honor, I think the court’s observation
that the relief requested by the plaintiff, the request for the
TRO, the preliminary injunction, the declaratory judgment and
permanent injunction, they do converge together and unless the
court is prepared to conduct a hearing which would be really
nothing more than an investigation into the bona fides of the
grand jury investigation, I agree with your Honor’s assessment
that the appropriate—
THE COURT: I didn't expect you to disagree
MR. WILSON: The appropriate adjudication is one of dis-
missal. I think the court has said that if the grand jury would
take any kind of affirmative action that might open up some
other avenue for the complainants to recommence a complaint.
But I don't have any dissent to make with the court's finding,
your Honor.
THE COURT: Mr. Anderson, it seems to me that my finding
is that while for the purposes of this motion I have found that
you had standing, your entire complaint here is that an im-
proper investigation is going on and that you have been irrepar-
ably injured. I am finding that there has not been a showing
A-17
that the investigation is improper. I then went on and made a
finding on irreparable harm with the thought that if the Court
of Appeals found I was wrong on the finding preliminary to that,
that it would also have my finding with respect to irreparable
harm in the event that I was wrong, but ultimately my finding
is that the allegations in your complaint do not state a cause of
action and I dismiss the complaint
Thank you, gentlemen
Rec ord ( losed
COMPLAINT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE and NATIONAL EXECUTIVE
COMMITTEE OF THE NATIONAL CAUCUS OF LABOR
COMMITTEES,
Plaintiffs,
VS
ROBERT MORGENTHAL, District Attorney of
New York County and HAROLD WILSON,
Assistant District Attorney of New York County,
Defendants
Plaintiffs, by their undersigned attorney, for their complaint
against the defendants, allege as follows
PRELIMINARY STATEMENT
1. This is a complaint for declaratory relief and preliminary
and permanent injunctive relief against the defendants who
have instituted Grand Jury proceedings and other law enforce-
ment investigations in which the political organization, the Na-
tional Caucus of Labor Committees and its members, are the
targets of investigation. Plaintiffs, the governing bodies of the
National Caucus of Labor Committees (“NCLC’”), allege that the
Grand Jury proceedings and other law enforcement investiga-
tive actions undertaken by the defendants against the NCLC
and its members are brought in bad faith, for purposes of har-
assment and without a reasonable possibility of success. The
Grand Jury proceedings and other law enforcement investiga-
tions have been undertaken by the defendants in retaliation for
and to deter plaintiff political organization and its members from
A-19
exercising their constitutionally protected rights to freedom of
speech and of the press, to peacefully assemble and to freely
associate, to petition the government for redress of their griev-
ances, to register to vote and to vote, and to otherwise achieve
the full rights of American citizenship by fully and equally
participating in the democratic processes of our social and polit-
ical system. Were it not for this impermissible motive, the
instant Grand Jury proceedings and investigations would not be
brought.
The Grand Jury proceedings and investigations of the NCLC
and its members by the defendants are designed to, have in fact
and will contravene, under color of state law, rights guaranteed
to the political organization and its members under the First,
Fifth, Ninth and Fourteenth Amendments to the United States
Constitution. Defendants have conspired under color of state
law to unlawfully prosecute plaintiffs for their private ends and
purposes. The instant Grand Jury is also without subject matter
jurisdiction and all actions of the defendants complained of
herein are ultra vires and without authority in law.
The District Attorney and the Assistant District Attorney are
also abusing the Grand Jury process by presenting the results of
their investigations to unauthorized law enforcement personnel
and private individuals who are political opponents of the NCLC.
Some of these individuals have been or are private litigants in
suits involving the NCLC. These individuals and others plan to
utilize information developed from the instant Grand Jury pro-
ceedings and investigations in civil proceedings involving the
NCLC. The defendants are fully aware of the political animus
and unlawful motives of the NCLC’s political opponents, share
this political animus and are affirmatively and fully cooperating
in this use of the law enforcement machinery of the State of
New York for the private litigative and political advantage of the
NCLC’s political opponents.
Without the intervention of this Court, plaintiffs have suf-
fered and will continue to suffer irreparable harm as a result of
defendants’ bad faith actions, under color of state law, retaliating
A-20
for plaintiffs exercise of their First Amendment and other Con-
stitutional rights.
JURISDICTION
2. This action arises under the First, Fourth, Fifth, Ninth
and Fourteenth Amendments to the United States Constitution,
42 U.S.C. 1983 and 42 U.S.C. 1958. Jurisdiction of this Court
is invoked pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343 (1)-(3),
and 28 U.S.C. 2201 and 2202.
PARTIES
A. Plaintiffs.
3. Plaintiffs are the governing bodies of the National Caucus
of Labor Committees. The NCLC is a political organization
founded by Lyndon H. LaRouche, Jr. in 1968. The NCLC has
its principal offices at New York, New York. It is an unincorpor-
ated political association. The National Executive Committee of
the NCLC is composed of 16 individuals and is responsible for
formulating and effecting the political policies and programs of
the organization. The National Committee of the NCLC is com-
posed of 26 individuals and is responsible for formulating and
effecting the policies and programs of the organization through
designated areas of organizational responsibility.
4. As is set forth fully below, the National Caucus of Labor
Committees political organization is the target of the instant
Grand Jury proceedings and investigations. Nine members of
the NCLC have been subpoenaed to appear before the Grand
Jury and fifteen employees of a printing company which is
managed by members of the NCLC have been similarly subpoe-
naed to appear before the Grand Jury.
5. Since 1971 the NCLC has campaigned nationally and in-
ternationally for national and international monetary reforms
and accompanying policies of advanced technology and basic
A-21
scientific development as the only effective solution to the
depression conditions now permeating the world economy. The
NCLC has concretely specified programs for the most rapid and
capital intensive development of the Third World by the ad-
vanced sector as the only means for preventing economic geno-
cide in the Third World while reviving the dying industrial
economies and scientific traditions of the advanced sector through
such a project.
6. In its campaigns to implement this program, the NCLC
has politically opposed individuals and organizations whose pro-
grams and actions are centered in the philosophies of Neo-
Malthusianism, environmentalism and British philosophical rad-
icalism of both the left and right wing varieties. The NCLC
locates the authors and beneficiaries of these political move-
ments in an identifiable oligarchical grouping of financiers whose
goal is to preserve their power through what they view as an
inevitable world financial collapse while substituting a feudal
and colonialist structure of societies for the present system of
sovereign nation states. A corollary result of the NCLC’s specific
monetary reform proposals would be the bankruptcy of these
financial interests.
7. Members of the NCLC have been and are associated with
initiating and supporting other organizations which function to
present and propagate ideas and issues of political interest to
the NCLC to the American public. The Fusion Energy Foun-
dation was initiated by Lyndon LaRouche in 1974 to promote
scientific studies of fusion energy development, advanced nu-
clear energy development and associated industrialization poli-
cies. The National Anti-Drug Coalition was founded in 1978 to
campaign for drug enforcement policies and legislation directed
at the international criminal elements and financial institutions
directly involved in the drug economy and the promotion of
drug use and the drug sub-culture. The National Democratic
Policy Committee was founded in 1980 as a political action
committee within the Democratic Party and campaigns for can-
didates for public office who endorse or support the economic,
scientific, cultural and political policies developed by members
of the NCLC.
§. Some members of the NCLC are also involved in publish-
}
ing a weekly review of world political and strategic events, the
Executive Intelligence Review, and a bi-weekly newspaper
New Solidarity. A monthly newsletter, Investigative Leads, ad-
dressed to the problems ot international terrorism arug en-
forcement and other intelligence issues is also published by
members of the NCLC and directed primarily to a readership
in the law enforcement and intelligence communities
9. A substantial proportion of the NCLC membership is di-
rectly involved on a dav to dav basis In news gathering and
publication activities. Sales of publications authored by mem-
bers of the NCLC constitute the means of subsistence for mem-
bers of the political organization and for continued publication
and dissemination of the political analyses and ix
with the NCLC
fas assoc iated
10. Since 1973 the NCLC has presented in depth investiga-
tive reports and analyses to an international audience concern-
ing the individuals and organizations controlling international
terrorist phenomena and the drug trade. The NCLC has also
comprehensively reported on the geopolitic al and military strat-
egies and cultural designs of the oligarchical financial faction
which presently exercises control over world monetary policy
The NCLC has consistently sought to become the primary alter-
native private intelligence resource organization for govern-
ments and political policy factions and has designed its
investigative and publication activities accordingly. In the course
of such activities, NCLC members have, necessarily, developed
many confidential news sources in the intelligence, law enforce-
ment, and governmental sectors of several countries
11. In the Summer of 1982, Lyndon LaRouche began circu-
lating a major policy document to the nations of the Third World
entitled “Operation Juarez”. The document calls for the forma-
tion of a “debtors’ cartel” in the Third World. The debtors’ cartel
would enforce the demands of developing sector for massive
industrialization and development projects upon the advanced
sector by utilizing the cumulative debt of the Third World as a
“weapon” for negotiation with the advanced sector rather than a
4-23
nation by nation liability. The cumulative debt of the Third
World presently threatens the entire structure of the interna-
tional monetary system. LaRouche’s proposal that the Third
World propose that the advanced sector undergo a monetary
reorganization favoring its development or face a unilateral dec-
laration of moratoriums on all outstanding debt to the advanced
sector, has therefore been characterized as the “debt bomb”
prope sal
12. Under the program put forward in Operation Juarez,
American and international finances would be returned to the
gold standard, and international monetary and credit policies
would be absolutely biased toward policies of technological and
industrial development in the Third World sector. Speculative
financial operations would cease to be the major phenomena in
the world economy through punitive tax and credit policies
toward such operations
13. Since the circulation of Operation Juarez, the policies of
Mr. LaRouche and his associates have become a major factor in
the policy deliberations of Third World and other nations. In-
vestigative exposes published in the Executive Intelligence Re-
view have been widely republished in major publications
throughout the Third World
14. The Executive Intelligence Review also provides an eco-
nomic forecasting service which has been consistently accurate
concerning the actual economic condition of the United States
and other advanced sector economies where all other forecasting
services have been consistently erroneous. The EIR’s economic
forecasts are now subscribed to as an alternative financial intel-
ligence source by leading factions of Third World and other
governments
15. Mr. LaRouche’s increasing policy influence in the Third
World has been accompanied by increasing political influence
in the United States. In 1982 political candidates backed by the
National Democratic Policy Committee received vote totals from
18% to 49% in major races despite the relative paucity of the
NDPC’s financial resources. Mr. LaRouche has indicated a will-
ingness to seek the Democratic nomination for President of the
A-24
United States in 1984 although he has not formally announced
his candidacy. As is set forth fully below, Mr. LaRouche’s 1980
Democratic Presidential candidacy was denounced by the New
York Times and the present political factions constituting the
leadership of the Democratic Party
16. Member of the NCLC also constitute the management of
PMR Printing Company, a printing company in New York City,
which prints practically all publications associated with the
NCLC.
17. The NCLC, its policies, programs and associated publi-
cations are controversial. As is more fully set forth below, the
organization and its members have been subjected to repeated
attacks in the media and law enforcement investigations insti-
gated by or through individuals who are political opponents of
the NCLC
B. Defendants.
18. Robert Morgenthau is the District Attorney of New York
County and is the individual charged with enforcing the criminal
laws of the State of New York in New York County. At all times
material to this complaint Robert Morgenthau acted and is
acting under color of law, statute, ordinance and custom of the
State of New York
19. Harold Wilson is an Assistant District Attorney in New
York County, charged with enforcing the criminal laws of the
State of New York in New York County and is, upon information
and belief, the assistant assigned to the Grand Jury and other
investigations of the NCLC giving rise to this lawsuit. At all
times material to this complaint, Harold Wilson acted and is
acting under color of law, statute, ordinance and custom of the
State of New York.
ALLEGATIONS AND FACTUAL RECITATION
20. Pursuant to search warrant signed by the Honorable Jef-
frey Atlas of the Supreme Court, New York County, seventeen
individuals identifying themselves as detectives of the New York
A-25
City Police Department searched the premises of PMR Printing
Company, Inc. (“PMR”) at 207 West 25th Street, New York,
New York on November 16, 1952. A photocopy of the search
warrant which was left by police authorities at the subject prem-
ises is annexed as Exhibit “A”
21. During the course of the search at PMR, detectives or-
dered individuals present on the premises to produce their
identification to the detectives. According to the detectives such
production was required for the search. Upon production of the
identification, the detectives filled out otherwise blank Grand
Jury subpoenas to the individuals and served the individuals
with the Grand Jury subpoenas. (See the Affidavit of Kenneth
Kronberg, annexed as Exhibit “B”). By this process, 22 individ-
uals constituting the entire day shift and management of PMR
Printing Company were subpoenaed to appear before the New
York County Grand Jury at the same time on the same day.
22. Another individual, Barbara Boyd, was subpoenaed to
appear before the Grand Jury when she arrivedeat the premises
of PMR on November 16th, 1982, despite her statement to the
detectives that she was not employed by PMR Printing Com-
pany, in response to her questioning of the detectives concern-
ing the legal validity of their activities under the search warrant.
(See the Affidavit of Barbara Boyd, annexed as Exhibit “C”). On
December 8, 1982, Jesus Gonzales, an individual employed as
a truck driver at PMR was also subpoenaed to appear before the
New York County Grand Jury by a Detective who was waiting
for him outside the premises of PMR.
23. Upon information and belief, the cutting knives to a King
Press on PMR’s premises, specified in the search warrant, were
the only items confiscated by the detectives at the premises
pursuant to the search warrant. The search warrant specifies
that the subject of the search activities was the pamphlet “Pro-
files of the Times.” “Profiles of the Times” is, upon information
and belief, a parody pamphlet, resembling, in some respects,
the book review section of the Sunday New York Times. The
printing and publication of this pamphlet is at issue in the Grand
Jury proceedings challenged in this lawsuit.
A-26
24. On October 26, 1952, the article annexed as Exhibit “D”
was published in the New York Times. According to the article,
Manhattan District Attorney Robert Morgenthau began inves-
tigating a pamphlet entitled “Profiles of the Times” on October
25, 1982 upon complaints from the New York Times and Roy
M Cohn
25. In the article annexed as Exhibit “D", New York Times
General Counsel Catherine Darrow states that the insertion of
unauthorized advertising sections in newspapers or magazines
is a misdemeanor under New York law. According to the Times
account, copies of the pamphlet were delivered by three men
in a dark van to newsstands in Manhattan and Queens. Some
newsdealers said the deliverers instructed them to insert the
article in the Times, and about 1,000 copies of the pamphlet
may have been circulated, according to the Times account
26. On October 27, 1982, the article annexed as Exhibit “E”,
appeared in the Village Voice. The article quotes Robert Mor-
genthau's secretary to the effect that the District Attorney's
office is probing the “hoax” on the New York Times to determine
“if any crime was committed by the parties involved”. The
Village Voice named political associates of Lyndon H. La-
Rouche, Jr. as targets of the District Attorney's investigation.
27. The article annexed as Exhibit “E” appeared in the Our
Town newspaper for November 14th-20th, 1982. It offers a
$10,000 reward for information leading to the arrest and even-
tual conviction of the person or persons who published and
circulated “Profiles of the Times”. The reward offer specifies
that individuals associated with Lyndon LaRouche should be
particularly targetted for investigation.
28. By affirmation dated January 6, 1983, and submitted in
proceedings before the Appellate Division, First Department of
New York Supreme Court, defendant Wilson stated that the
Grand Jury proceedings to which individuals on the premises of
PMR Printing Company were subpoenaed on November 16,
1982 are pursuant to aliegations of criminal conduct surrounding
the publication and distribution of “Profiles of the Times’:
“Among the crimes being investigated are Forgery, Criminal
A-27
Possession of a Forged Instrument, Possession of Forgery De-
vices, Conspiracy, Violations of the General Business Law and
related crimes.”
29. Plaintiffs have reviewed the criminal codes of the State of
New York and the disputed pamphlet entitled “Profiles of the
Times. Plaintiffs have found no cases under the criminal code
wherein the sections of the criminal codes specified in paragraph
28 of this complaint were applied to the alleged activities com-
plained of by the New York Times in paragraph 25 of this
complaint. Parody editions of well-known national publications
have been published and/or distributed and sold repeatedly in
the State of New York without criminal sanctions or an attempt
to apply the criminal codes to such activities.
30. Upon information and belief, the complainants may have
civil remedies concerning the contents of “Profiles of the Times”
against the person or persons responsible for the pamphlet,
including an action for defamation, but such civil remedies are
not properly cognizable under the criminal laws of the State of
New York. Plaintiffs believe the defendants have cited the crim-
inal violations specified in paragraph 28 in a deliberate attempt
to magnify the significance of the activities under investigation
in order to justify the oppressiveness and intrusiveness of their
bad faith actions against the NCLC. Moreover, were it not for
defendents’ desire to retaliate and deter plaintiffs in the exercise
of their First Amendment and other Constitutional rights the
instant Grand Jury proceedings and investigations would not be
brought.
31. The publications specifying the plaintiffs as the preferred
targets of the District Attorney's investigation, the Village Voice
and Our Town, have engaged in a long-standing campaign of
villification and similarly bizarre accusations against the plain-
tiffs. Four individuals associated with these publications, (Ed-
ward Kayatt, Dennis King and Kalev Pehme of Our Town, and
Joe Conason of the Village Voice) have been specified to plain-
tiffs by confidential sources as individuals to whom the results
of the District Attorney's investigations are being unlawfully
disclosed and as sources for the District Attorney in the instant
A-25
investigation. The same confidential sources have specified that
plaintiffs are the targets of an unlawful plan of prosecution
involving both state and federal agencies and that a part of this
plan will be public media defamations of the plaintiffs to give
credibility to what otherwise would be ludicrous allegations and
charges. Moreover, the defendant District Attorney is moti-
vated by the same political animus toward plaintiffs as Dennis
King, Edward Kayatt, Kalev Pehme, Joe Conason and the New
York Times. This political animus was the determining factor in
the decision by the District Attorney to launch the instant bad
faith investigation in retaliation for the political policies and
programs advocated by the plaintiffs.
POLITICAL ANIMUS OF THE DISTRICT ATTORNEY
AND THE COMPLAINANTS
32. As is set forth in the accompanying affidavit of Jeffrey
Steinberg, (Exhibit “F”), District Attorney Morgenthau, the
New York Times and Roy Cohn are political adversaries of the
NCLC and Lyndon LaRouche. Cohn and the Times were in-
volved in a major and coordinated effort in 1979 to launch
federal and state law enforcement investigations against La-
Rouche and members of the NCLC in retaliation solely for the
expressed political programs and policies of LaRouche and the
NCLC. The International Herald Tribune, a publication par-
tially owned by the New York Times, was found guilty of crimi-
nal libel of Lyndon LaRouche by a French Court when it
republished the New York Times 1979 series on LaRouche. The
New York Times also served as a conduit for FBI originated
defamations concerning the NCLC during the FBI's 10-year
domestic security investigation of the NCLC.
33. District Attorney Robert Morgenthau was formerly a na-
tional committee member of the Anti-Defamation League of
BNai Brith (“ADL”) and maintains continuing relationships
with officials of that organization including Irwin Suall, Arnold
Forster, Justin Finger, Kenneth Bialkin and others. The ADL
has consistently defamed the NCLC and Lyndon LaRouche as
A-29
“anti-Semitic” in a persistent international harassment campaign
against LaRouche and his associates dating from 1977.
34. The NCLC identifies the ADL as an asset of an intelli-
gence network spawned by Jay Lovestone in the United States
and internationally, a network which is politically affiliated with
the Second Socialist International. This intelligence network has
been repeatedly implicated in international operations involving
drugs and political terrorism.
35. In the United States, by the statements of ADL officials,
ADL harassment efforts are concentrated on the use of law
enforcement investigations and compliant law enforcement ofh-
cials to achieve the ADL’s declared aim of destroying the NCLC
political organization. According to the statements of Abbott
Rosen, a national official of the ADL, the ADL knows these
investigations are discriminatory and without legal merit. The
design of the harassment effort is to drive the NCLC “out of
business’. State and federal law enforcement investigations are
the preferred vehicle for the ADL’s illegal actions because pri-
vate abusive legal actions expose the participant to civil discov-
ery and might enhance rather than defeat the credibility of the
NCLC. (See the Affidavit of Robin Hyman and the transcript
annexed thereto, Exhibit “G’).
35. District Attorney Robert Morgenthau is also presently
the national co-chairman of an organization called the Interna- _
tional Conference for PEACE, a propaganda organization for
West Bank expansion policies founded by Ariel Sharon in the
United States. Upon information and belief, Morgenthau is a
close personal friend of Ariel Sharon
36. The NCLC, in political campaigns within Israel, Western
Europe and the United States for Middle East peace based
upon intensive scientific and economic development of the en-
tire region, has consistently opposed the Sharon faction in Isra-
eli politics. The NCLC has investigated and exposed the
domination of this faction by organized crime elements, the
“Israeli mafia’, acting against the interests of the Jewish com-
munity in the Middle East and internationally.
A-30
37. As is set forth in the Steinberg affidavit, “Exhibit F”.
contemporaneously with the instigation of the instant Grand
Jury proceedings, NCLC members were publishing in the Ex-
ecutive Intelligence Review detailed exposes of the involvement
of the Sharon faction in Israel with Lord Carrington and Henry
Kissinger in major real estate dealings, aimed at buying up the
West Bank and substantively destabilizing Israeli politics, an
operation for which PEACE was a critical United States propa-
ganda vehicle. These exposes received wide circulation through
EIR’s readership in Israel and throughout the Middle East.
38. Meir Jolawitz, a national board member of PEACE, is
also the National Director of the Jewish Defense League (“JDL”).
Defendants Morgenthau and Wilson have repeatedly refused to
investigate threats delivered to members of the NCLC by the
JDL. Defendant Morgenthau appears to have an agreement
with Jolawitz that any attacks on the NCLC by the JDL will not
be prosecuted. Meir Jolawitz has stated to an investigator for
the NCLC that the JDL has received outside funding for attacks
against NCLC members. (See Steinberg Affidavit, Exhibit “F”).
Since the instigation of the instant Grand Jury proceedings there
has been a renewed pattern of threats by the JDL to NCLC
members.
39. District Attorney Morgenthau is a Board member of the
Puerto Rican Legal Defense Fund, an organization which has
been investigated by the NCLC for its ties to the FALN orga-
nization and terrorism. The District Attorney's wife, Lucinda
Franks, is a reporter who has extensively reported upon the
Weathermen and other terrorist organizations for the New York
Times and other publications. Lucinda Franks is a former em-
ployee of the New York Times. Franks states in her articles that
she empathized with her terrorist subjects and gained their
trust. The Weathermen and similar terrorist organizations have
repeatedly threatened the NCLC and LaRouche since 1968.
(See Steinberg Affidavit, Exhibit “F”).
40. Prior to the instant Grand Jury proceedings, District
Attorney Morgenthau was involved, to plaintiffs’ knowledge, in
two other hostile and legally questionable actions against plain-
A-31
tiffs in his official capacity. In 1975, the District Attorney re-
quired Lyndon LaRouche’s personal testimony in a criminal
proceeding on extremely questionable legal grounds. The call
by the District Attorney for LaRouche's testimony followed a
very serious security incident at a public appearance by La-
Rouche in Detroit, Michigan. Morgenthau refused all requests
for security provisions for LaRouche. Federal court intervention
resulted in the provision of minimal security protection by the
District Attorneys office for LaRouche at the time of his testi-
mony. (Steinberg Affidavit, Exhibit “F’).
41. On December 16, 1981, Dennis King and Chip Berlet (a
free-lance journalist who is a contributing editor to “High Times”
magazine, a publication advocating and advertising drug use and
paraphenalia), alleged in a press conference in Washington D.C.
that the NCLC was tied to right-wing elements of the Central
Intelligence Agency, including Edwin Wilson and Frank Terpil.
Berlet and King cited tape recordings of conversations between
Terpil and Mitchell Warbell, an individual involved in training
NCLC security personnel, as the basis for these allegations. The
tape recordings were leaked to journalists by a detective in the
New York City Police Department working under the supervi-
sion of District Attorney Morgenthau in the Terpil-Wilson in-
vestigation. In that case, the New York Times worked closely
with District Attorney Morgenthau in demands for federal pros-
ecution. Sergeant Melvin Woike, the police detective who ob-
tained the search warrant on PMR’s premises, was the arresting
officer in the arrest of Frank Terpil. (Steinberg Affidavit, Exhibit
Eo}
42. The same December 16, 1981 press conference by King
and Berlet called for federal and state prosecution of the NCLC
under a variety of bizarre legal pretexts including violations of
the foreign agents registration act, the campaign finance laws,
the espionage laws, and the Internal Revenue Code.
INVESTIGATIVE ACTIONS
43. On or about October 26, 1982, Jeffrey Steinberg of the
NCLC began receiving detailed information from confidential
law enforcement and other sources concerning the “Profiles of
A-32
the Times” investigation by District Attorney Morgenthau. The
information relayed is in correspondence with the development
of the New York Grand Jury proceedings and investigation
concerning “Profiles of the Times” and contemporaneous bad
faith actions of other investigative agencies.
44. As is set forth in detail in the Steinberg affidavit, his
sources reported to him: (1) the NCLC was the target of the
Grand Jury proceedings concerning “Profiles of the Times’; (2)
the Grand Jury process in New York County is being utilized
for purposes of generating information for civil lawsuits by the
New York Times, Roy Cohn and other individuals pursuant to a
general plan of “financially bleeding” and diverting the NCLC
from its political activities; (3) information developed from the
Grand Jury proceedings in New York County and the District
Attorney's investigation and presentation to the Grand Jury is
being discussed in detail with political opponents of Lyndon
LaRouche, including the New York Times, Our Town newspa-
per, Dennis King, Kalev Pehme, Chip Berlet, the ADL, Manny
Goldstein and Roy Cohn and with federal and state law enforce-
ment authorities not assigned to the “Profiles of the Times”
investigation; these individuals and entities are, in turn, serving
as the District Attorneys’ informants in the investigation; (4) the
Grand Jury proceedings in New York County are undertaken
not for the purposes of obtaining a valid conviction, but solely
for the purposes of generating information on individual mem-
bers of the NCLC and its organizational structure for broader
private civil litigative actions against the NCLC and associated
organizations and state and federal prosecutorial actions against
the NCLC to be undertaken simultaneously. These investiga-
tions are aimed at permanently discrediting the NCLC, sever-
ing all relationships between members of the NCLC.and law
enforcement, intelligence and government news sources and
political collaborators and destroying the very fabric of the NCLC
political organization and are without legal authority; (5) the
indicated legal assault against the NCLC would be accompanied
by media “exposes” of the NCLC calling for prosecutions and
legal actions against members of the NCLC and organizations
and individuals associated with the NCLC; individuals associ-
A-33
ated with the news media would also be utilized to conduct
investigations concerning the NCLC with information gener-
ated by these investigations promptly delivered, by prior agree-
ment, to the law enforcement agencies; (6) law enforcement
authorities and private agencies engaged in this legal assault had
placed informants within the NCLC and associated organiza-
tions for purposes of gathering information for harassment activ-
ities against NCLC members and for disrupting the NCLC
organization; the same authorities were also seeking means to
fabricate evidence against the NCLC. According to the Stein-
berg affidavit, sources providing detailed information concern-
ing these unlawful and retaliatory actions against the NCLC
specified that the decision, by political opponents of the NCLC
and Lyndon LaRouche, to go forward with these actions was
made on the basis of Lyndon LaRouche’s increasing political
influence in the United States, the Third World and Western
Europe.
45. Upon information and belief, the District Attorney placed
an informant within the staff of PMR Printing Company, who
was named Jeff Saunders, pursuant to the unlawful and provoc-
ative planned use of informants specified by Steinberg’s sources
and otherwise in violation of the constitutional rights of plaintiffs
and members of plaintiff organization. When Saunders was fired
from PMR for his disruptive activities including attempts to start
fights in the plant he stated to Nancy Shavin that the instant
bad faith proceeding concerning “Profiles of the Times” was only
one of a series of retributive proceedings to be undertaken by
the District Attorney and other authorities including actions for
violations of the state tax and labor laws. (See affidavit of Nancy
Shavin, annexed as Exhibit “H”, affidavit of Kenneth Kronberg,
annexed as Exhibit “B”).
46. Upon information and belief, Jonathan Beaty, a reporter
for Time Magazine, is a reporter and informant being utilized
by the District Attorney pursuant to the investigative plan spec-
ified by Steinberg’s sources for gathering information concern-
ing the NCLC and otherwise in violation of the Constitutional
rights of plaintiff political organization and its members. Beaty
attempted to solicit comment concerning “Profiles of the Times”
A-34
from Robert Greenberg and Lyndon LaRouche of the NCLC.
Beaty has in the past been intimately associated with the United
States Department of Justice and the Federal Bureau of Inves-
tigation.
47. Defendants’ conceded actions in the “Profiles of the Times”
investigation to date, the timing of the investigation and the
relationship and the history of the parties involved in addition
to the incidents of prosecutorial and investigative misconduct
alleged in paragraphs 45 and 46, are prima facie indicia that this
investigation is proceeding in bad faith for an impermissible
purpose.
48. Seventeen New York City Police Detectives raided a
printing plant and subpoenaed the entire workforce of the plant
to appear before the Grand Jury at the same time on the same
day. The District Attorney gratuitously asserts that multiple
misdemeanors and a felony count are being investigated to
justify the prosecutorial deployment and resources involved in
the investigation. The investigation is initiated when plaintiffs
publish exposes of illegal activities of the Sharon faction in
Israel. The prosecutor, Robert Morgenthau, is intimately asso-
ciated with this political faction. The prosecutor is also associ-
ated with an organization, the ADL, which advocates the
unlawful use of state and federal law enforcement machinery
against the plaintiffs in order to retaliate for and deter plaintiffs
in the exercise of their Constitutional rights. ADL officials have
specified that this is a preferred means of attack since abusive
civil actions might subject the initiators to civil discovery by the
NCLC and enhance rather than destroy the NCLC’s credibility
and reputation. The prosecutor has refused to investigate terror-
ist threats made to plaintiffs by the JDL. The prosecutor is an
official of an organization which also includes the national head
of the JDL as an official, “PEACE.” Robert Morgenthau’s office
participated in past leaks of investigative materials from the
Terpil-Wilson investigations to individuals known to be hostile
to plaintiffs and these leaks were used in defamations of plaintiffs
specifically linking them to terrorism and the Central Intelli-
gence Agency.
4-35
49. Upon information and belief, on or about November 16,
1982, a second bad faith law enforcement investigation was
opened on members of the NCLC by and through-the Federal
Bureau of Investigation in Baltimore, Maryland. This investiga-
tion concerns the campaign finances of NCLC member and
National Democratic Policy Committee backed candidate Debra
H. Freeman. Freeman received 20% of the vote in her primary
contest against Congresswoman Barbara Mikulski. Freeman won
some precincts in working class districts and her vote was in the
40-49% range in those districts of South Baltimore. The circum-
stances of this investigation also corroborate the general bad
faith investigative plan communicated to Steinberg by his con-
fidential sources.
50. The Baltimore Evening Sun began “investigation” of
Freeman immediately after the primary campaign, subse-
quently publishing a defamatory series attacking the candidate,
Lyndon LaRouche and the NCLC. Many of the defamatory
characterizations employed by the Evening Sun reporter were
originally developed by the FBI concerning the NCLC in its 10
year “domestic security investigation” of LaRouche and the
NCLC. The FBI's domestic security investigation is the subject
of a lawsuit in this District, LaRouche v. Webster, 75 Civ. 6010
(MJL). The Sun articles called for immediate federal investiga-
tion of Freeman, asserting in an editorial that the candidate had
received too many “uninformed” votes. The FBI announced the
opening of the investigation through an interview granted to the
Baltimore Evening Sun. Such statements by the FBI were
completely contrary to Justice Department policies concerning
comment upon preliminary investigations.
51. The NCLC has moved for a preliminary injunction against
this investigation in LaRouche v. Webster, 75 Civ. 6010 (MJL)
and is seeking to deposition the Baltimore Evening Sun reporter
who authored the series, Mark Arax, concerning his relationship
with the FBI. Both the FBI and the reporter have moved to
quash deposition subpoenas issued in this lawsuit. Mr. Arax is
represented by Venable, Beatjer and Howard in Baltimore, the
lawfirm of former Attorney General Benjamin Civiletti. Mr.
Civiletti had threatened to sue the Lyndon LaRouche and indi-
4-36
viduals and organizations associated with plaintiffs for published
allegations against Civiletti concerning the ABSCAM investiga-
tions. Mr. Civiletti did not pursue his threat of a defamation
suit.
52. On or about December 23, 1982, Robert Greenberg of
the NCLC interviewed Ed Jagen of the Investigative Services
Division of the Washington, D.C. Metropolitan Police Depart-
ment. Detective Jagen, who works in police intelligence stated
that he was involved in a federal investigation of the NCLC and
Lyndon LaRouche which did and would overlap with the
“Profiles of the Times” investigation. (Greenberg Affidavit. Ex-
hibit “I"). This statement makes no legal sense to plaintiffs
except in the context of the plan to launch repeated bad faith
investigations of LaRouche and the NCLC, specified to Stein-
berg by his confidential sources
53. As is set forth in the Steinberg affidavit, “Exhibit “F’
confidential sources have specified to Steinberg that the Federal
Bureau of Investigation is intent upon investigating and prose-
cuting the NCLC under any fabricated pretext available to that
agency. To that end the FBI has initiated a program of infiltra-
tion of the NCLC and entrapment and “sting” operations. These
operations are to be legally justified by the FBI under new
guidelines promulgated by the the Department of Justice allow-
ing intrusive investigations of “dormant” “violence-prone” groups
54. Plaintiffs have previously been the targets of bad faith law
enforcement investigations, harassment and other actions. These
law enforcement actions were undertaken to retaliate against
plaintiffs in the exercise of their rights to speech, press and
association and to burden and deter plaintiffs in the exercise of
those rights.
55. From 1968 through 1977 the National Caucus of Labor
Committees and predecessor organizations were investigated by
the FBI under the Internal Security Laws of the United States
This investigation did not result in one indictment or present-
ment to a Grand Jury. As is set forth in LaRouche v. Webster.
75 Civ. 6010 (MJL) S.D.N_Y., the National Caucus of Labor
Committees and its members were subjected to unlawful FBI
COINTELPRO tactics throughout the course of the investiga-
tions
56. FBI actions against the NCLC or its members during the
course of the domestic security investigation included unlawful
interference in political campaigns of political candidates, direct
FBI intimidation and harassment of candidates and their fami-
lies, media defamations of candidates, and the funneling of
derogatory information concerning candidates to their political
opponents. The FBI collaborated with state officials in selective
enforcement of local ordinances against NCLC political organ-
izing activities. The FBI collaborated with media resources and
private organizations, including the AFL-CIO, the League for
Industrial Democracy and the ADL in defamation and harass-
ment activities against the NCLC. The FBI encouraged and
condoned physical assaults on NCLC members by terrorist or-
ganizations which it characterized as rival political groups, in-
cluding the Weathermen, the Revolutionary Union and the
Black Panther Party. The FBI consistently monitored and acted
to disrupt NCLC sources of financial support
57. As is set forth in LaRouche v. Webster, many of the media
defamations against the NCLC currently in circulation were
developed originally by the FBI in the course of its unlawful
COINTELPRO program. These defamations are now circulated
by the same media conduits and private organization sources
utilized by the FBI in that unlawful program. The FBI also
acted to discredit and disrupt newsgathering activities by NCLC
members and the relationship between NCLC members and
new sources
58. In 1980, when Lyndon LaRouche received public financ-
ing in his bid for the Democratic presidential nomination, La-
Rouche’s political opponents, including the ADL, the New York
Times, Our Town and members of the Democratic National
Committee launched a national media campaign denouncing the
grant of Federal matching monies and demanding either a change
in the Federal Election Campaign Act to prevent similar future
occurrences or a full FEC investigation of LaRouche and his
campaign committee.
4-35
59. A full two vear FEC investigation did in fact result from
these demands. This investigation was finally halted by a prelim-
inarv injunction in Dolbeare v. FEC, 81 Civ. 4468 (CLB) with
the Court stating in its March 9, 1982 Memorandum and Order
“It would be hard to imagine a more abusive visita-
tion of bureaucratic power, than has already been
imposed upon this relatively insignificant splinter po-
litical group, as is shown by the relatively uncontro-
verted facts alleged here and described, we think with
some restraint, in the foregoing pages of this opinion.”
60. In 1981, the ADL, journalists associated with High Times
Magazine and the National Organization for Reform of Mari-
juana Law and the Chicago Sun-Times collaborated in a cam-
paign to shut down the political organizing activities of the
National Anti-Drug Coalition in Illinois and nationally through
a bad faith and selective application of the charitable organiza-
tion laws and a campaign of defamation
61. The Illinois Attorney General, without resort to the
Courts, ordered towns in Illinois to ban NADC solicitation
activities, following the NADC’s registration with the Attorney
General and demand to the Attorney General for a formal opin-
ion as to whether or not the charitable organization statutes
applied to political organizations. The rationale for the Attorney
General's action was that the NADC had failed to turn over
financial statements concerning the first six months of its first
fiscal year to the Attorney General, a requirement which is no
where specified in the law. These actions of the ADL, the
Chicago Sun-Times, individual journalists and the Illinois Attor-
ney General are presently the subject of a lawsuit for declaratory
and injunctive relief and damages in the United States District
Court for the Northern District of Illinois. National Anti-Drug
Coalition vs. Tyrone C. Fahner, 82C-1480).
STATE COURT PROCEEDINGS
62. By Notice of Motion dated December 2, 1982, plaintiffs
moved in the Supreme Court, New York County to enjoin the
Grand Jury proceedings concerning “Profiles of the Times” and
4-39
to quash subpoenas issued to NCLC members on the premises
of PMR Printing Company on November 16, 1952. Plaintiffs
alleged that the Grand Jury proceedings were conducted in bad
faith, for purposes of political harassment and that the Grand
Jury lacked subject matter jurisdiction. Plaintiffs also moved for
an evidentiary hearing on their claims of bad faith on December
9th, 1982
63. Nine individual members of the NCLC joined by fifteen
employees of PMR Printing Company (hereinafter “the wit-
nesses’) also moved in Supreme Court, New York County to
quash the subpoenas on the grounds that the subpoenas were
issued unlawfully under New York state statute, and in a manner
which violated the Fourth Amendment rights of the witnesses
In addition this motion challenged the subject matter jurisdic-
tion of the Grand Jury
64. The Supreme Court, New York County, Jeffrey Atlas,
J.S.C. ruled that the plaintiffs did not have standing to intervene
or to quash the subpoenas issued to members of the NCLC
under CPLR 1012 or CPLR 2304 and on that basis solely denied
plaintiffs’ motion
65. The Supreme Court, New York County, Jeffrey Atlas,
J.S.C., denied the motion by the individual witnesses to quash
the subpoenas on statutory and Constitutional grounds, ruling
that the method of issuing the subpoenas was appropriate. A
stay on the return of these subpoenas pending application for
interim relief to the Appellate Division was consented to by
defendant Wilson upon the application of the attorney for these
witnesses and the suggestion of Justice Atlas
66. Justice Atlas was the Justice who signed the search war-
rant for PMR’s premises, and, upon information and belief, had
prejudged the issues raised by the plaintiffs and the individual
witnesses.
67. Plaintiffs sought an interim stay from the Appellate Divi-
sion, First Department, which stay was denied. Plaintiffs appli-
cation for a stay and for an expedited hearing and briefing
schedule to the Appellate Division, First Department, was de-
A-40
nied. Plaintiffs then moved to renew their application for an
expedited hearing and briefing schedule on appeal or, in the
alternative, for leave to appeal to the Court of Appeals the denial
of the stay and expedited hearing and briefing schedule. This
motion was also denied. Plaintiffs’ appeal of Justice Atlas’s Order
denying plaintiffs standing to bring their claims under CPLR
1012 and CPLR 2304 is presently before the Appellate Division
but will not be heard before the May term of the Court.
68. The motion for an interim stay by the two groups of
individual witnesses subpoenaed at PMR Printing Company was
granted by the Appellate Division. However, on Friday, March
11, the Appellate Division denied the motion for a stay and for
an expedited hearing and briefing schedule on their appeal. This
means that members of the NCLC could be called before the
Grand Jury at any time, subject to the discretion of the District
Attorney
69. Plaintiffs and the individuals whose rights they seek to
represent have for every practical purpose exhausted state rem-
edies. The appeals on these motions will not be heard and
decided for a period of months. These appeals could be mooted
at any time by the calling of witnesses before the Grand Jury by
the District Attorney. The denials of the stays and expedited
hearing and briefing requests in both appeals indicates that the
Appellate Division will deny the relief requested by plaintiffs
and the individual witnesses in those proceedings.
70. As is set forth in the accompanying Memorandum of Law
plaintiffs have no adequate state forum in which to raise and
vindicate their Constitutional claims. The only possible state
remedy now available to plaintiffs is the filing of the present
action in the state court rather than the Federal system, a result
which has never been required by the policies of comity and
federalism. Recent New York Court decisions also call into
question whether or not individual witnesses can raise claims of
bad faith investigation or harassment prior to participation in
the very prosecution which they seek to halt or enjoin through
the mechanisms provided in the State Courts.
A-41
71. Plaintiffs have standing to raise constitutional claims on
behalf of the political organization and on behalf of the members
of the political organization. As is set forth in the accompanying
affidavit of Kenneth Kronberg, a member of the National Com-
mittee of the NCLC and the President of PMR Printing Com-
pany (Exhibit “B”), PMR Printing Company is managed by
members of the NCLC and prints all publications associated
with the NCLC. Its officers are members of the NCLC. Fur-
ther, the NCLC political organization is the target of the Grand
Jury proceedings and is adversely affected thereby—the Consti-
tutional rights of the political organization and of its members
are violated by this bad faith investigation. The Supreme Court
of the United States and the federal courts have held that
political organizations have standing to raise Constitutional claims
on behalf of their members in precisely analogous contexts.
72. Plaintiffs are without an adequate remedy at law and no
application for similar relief as been made to this Court.
73. Plaintiffs are without funds to post a bond in this action.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully pray that this Court:
(1) Grant plaintiffs a temporary restraining order, if such
relief is requested on application, staying enforcement of all
subpoenas issued to individuals present on the premises of PMR
Printing Company on November 16, 1982 and to Jesus Gonzales
on December 8, 1982 and enjoining the issuance of any new
subpoenas to members of the NCLC by defendants;
(2) Grant plaintiffs a preliminary injunction upon an eviden-
tiary hearing on application for a preliminary injunction, staying
enforcement of all Grand Jury subpoenas issued to individuals
on the premises of PMR Printing Co. Inc. on November 16,
1982 and to Jesus Gonzales on December 8, 1982 and enjoining
the issuance of any new subpoenas to members of the NCLC by
defendants, during the pendency of this action;
A-42
3) Issue a declaratory judgment and a permanent injunction
Order upon the trial of this action finding that: (a) defendants
have conducted and are conducting bad faith law enforcement
investigations against plaintiffs, violating the Constitutional rights
of plaintiff political organization and its members under color of
state law: (b) these bad faith law enforcement investigations
were undertaken to retaliate against plaintiffs in the exercise of
their First Amendment and other Constitutional rights, are
brought without the expectation of obtaining valid convictions
and would not have been initiated except for the impermissible
retaliatory motive; (c) these bad faith investigations were under-
taken in conjunction with private individuals, organizations and
other law enforcement agencies acting similarly to injure and
deter plaintiffs, under color of law, in the exercise’ of their
Constitutional rights; and (d) permanently enjoining all such
investigations:
4) Grant plaintiffs their costs and attorneys fees in this action
pursuant to the provisions of 42 U.S.C. 1955;
5) Grant plaintiffs such other further and different relief as
may be just in the premises
Dated: New York. New York
March 25, 1983
ODIN ANDERSON
Troy, Tommasino,
Anderson & Reilley
Attorney for Plaintiffs
Office and P.O. Address
One Longfellow Place
Boston, Mass. 02114
617-720-1800
DANIEL AHARONI
Attorney for Plaintiffs
Office and P.O. Address
575 Madison Avenue
New York, N.Y. 10022
212-605-0352
A-435
EXHIBITS TO COMPLAINT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE and
NATIONAL EXECUTIVE COMMITTEE
OF THE NATIONAL CAUCUS OF
LABOR COMMITTEES
Plaintiffs
Vs
ROBERT MORGENTHAL, District
Attorney of New York Counts
and HAROLD WILSON, Assistant
District Attorney of New York Counts
Defendants
\-44
AFFIDAVIT OF KENNETH KRONBERG
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE and
NATIONAL EXECUTIVE COMMITTEE
OF THE NATIONAL CAUCUS OF
LABOR COMMITTEES
Plaintiffs,
Vs
ROBERT MORGENTHAL, District
Attorney of New York County
and HAROLD WILSON, Assistant
District Attorney of New York County
Defendants
STATE OF NEW YORK
COUNTY OF NEW YORK
KENNETH KRONBERG., being dulv sworn deposes and
Savs
1. [am a member of the National Committee of the National
Caucus of Labor Committees (“NCLC”), and the President of
PMR Printing Company, Inc. (“PMR’). I make this affidavit in
support of the motion by the National Executive Committee
and the National Committee of the NCLC for a preliminary
injunction in this action
2. I have read and I am fully familiar with the affidavit of
Jeffrey Steinberg submitted in support of this motion. I believe
that the NCLC organization is the target of the Grand Jury
investigation and that the investigation is being conducted in
bad faith for political harassment purposes. The National Exec-
utive Committee of the NCLC and the National Committee of
the NCLC are the governing bodies of the NCLC political
association and are elected by the membership on a bi-annual
A-45
basis to initiate and assure the execution of the political policy
initiatives of the organization. The NCLC is an unincorporated
political association. Members of the NCLC intervene in politi-
cal events internationally, primarily on behalf of the NCLC's
campaign for a New World Economic Order based upon policies
of high-technology economic development and associated polli-
cies for scientific breakthroughs at the frontiers of human knowl-
edge. In campaigning on behalf of these policies the NCLC has
developed a unique political intelligence capability, allowing
the organization to understand and influence strategic political
events. The accuracy of this intelligence capacity is the primary
basis for the NCLC’s survival against powertul politic al oppo-
nents who propose a new Malthusian world order based upon
“controlled disintegration” of the world economy. Since its
founding in 1968 by Lyndon LaRouche, the NCLC has vigor-
ously campaigned against proponents of the new Malthusianism
and the genocidal consequences of such policies, particularly in
Third World nations
3. On November 16, 1982, the premises of PMR Printing
Company, Inc. in New York City were searched by 17 individ-
uals identifving themselves as detectives of the New York City
Police Department. Twenty-two employees of PMR Printing
Company, Inc. were subpoenaed by the identified police offi-
cers to appear before the New York County Grand Jury on that
date
4. Nine of the individuals subpoenaed on November 16, 1982
are members of the National Caucus of Labor Committees
PMR Printing Company, Inc. is managed by members of the
National Caucus of Labor Committees and owned by members
of the NCLC or its political supporters. All publications written
and published by members of the NCLC or organizations asso-
ciated with Lyndon H. LaRouche, Jr. are printed at PMR Print-
ing Company, Inc
5. Since the NCLC is the investigative target of the Grand
Jury, and since the First Amendment associational and speech
rights of the NCLC are at stake and adversely affected by the
bad faith investigation conducted by the District Attorney, |
\-46
believe that the NCLC is the real party in interest in these
proceedings and has standing to raise Constitutional claims on
behalf of the NCLC and its members
6. I was present at PMR during the search of the premises
on November 16, 1982 by individuals identifving themselves as
Detectives from the New York City Police Department. I ob-
served Detectives who were identified to me by Sergeant Woike
as Detective O'Rourke and Detective Tonneson, serving Grand
Jury subpoenas to persons present on PMR’s premises. Both
officers askedghersons to produce their identification stating that
such production was necessary for the search. When the identi-
fication was produced, the identification was used to fill out
blank Grand Jury subpoenas which were delivered to the indi-
vidual. By this process or a similar process on November 16,
1982, 22 individuals on PMR’s premises were subpoenaed to
appear before the Grand Jury. The subpoenas were all returna-
ble on the same dav and time
6. On November 17, 1952, PMR terminated the employment
of an individual named Jeff Saunders. Saunders had been in-
volved repeatedly in attempting to provoke fights with other
employees at PMR and in abusive and disruptive behavior dur-
ing his short period of employment
;. Following his termination from employment, Saunders
visited PMR’s premises according to reports of these visits by
PMR employees. He went to other individuals and firms in the
building which houses PMR, accusing PMR of unlawful activi-
ties
8. During one of these visits on November 24, 1982, Saun-
ders approached Nancy Shavin and made the statements which
are set forth in Nancy Shavin's Affidavit (Exhibit “H” to the
Complaint). I believe that these statements identify Saunders as
an informant for the District Attorney who was sent into PMR
to gather information, to fabricate evidence concerning PMR
and to engage in the provocative activities which resulted in his
termination from employment. I also believe that Saunders’
statements reflect the scope of the District Attorney's bad faith
investigation of PMR
A-4)
Y. Following the District Attorney s search of PMR premises
PMR received a request for an audit of its books and records
from the City of New York. Counsel for PMR agreed to give
certain information to the City if the City would certify that the
requests for information and the audit were undertaken in the
normal course of the Citys tax enforcement responsibilities
The City refused to provide such a statement (See the corre-
spondence annexed as Exhibit “]
10. Subsequently, the City official conducting the PMR audit
explained that the request for the examination had been some-
thing of a mistake and that the request was triggered by PMR s
claim that the City owed it a refund on taxes
ll. During the weeks of November 17th through December
3rd, PMR received a number of unsolicited calls from persons
representing themselves as potential customers. These individ-
uals requested typestyles and paper utilized by PMR in its
printing operations. These calls were highly unusual, as they
requested specific samples of materials unrelated to any partic-
ular job to be printed. In my experience, we have never before
or since been called by a potential customer who had no idea
whatsoever as to what he wanted printed, but was positive
concerning the materials he wanted to sample. During this same
period two New York City policemen parked outside the plant
and stated to PMR employees that they were looking for Myles
Robbins and that they wanted to talk to him about the cutting
blades utilized on a press at PMR. I believe they wanted to talk
to Robbins about the press cutting blades which were confis-
cated pursuant to the search warrant
12. I believe the individuals who made the unsolicited cus-
tomer calls to PMR were either working directly for the District
Attorney or indirectly for the District Attorney in pursuit of the
$10,000 reward offered by Our Town. Jeffrey Steinberg told me
of the reports to him that the District Attorney was attempting
to fabricate evidence against PMR concerning the Profiles of the
Times investigation, and that reporters to whom information is
being leaked concerning this investigation stated that forensic
tests on blades seized from PMR had been inconclusive. The
A-45
activities of Jeff Saunders. the unsolic ited telephone calls, and
the requests for further information from Myles Robbins are
consistent with Steinberg’ s informant reports
Kenneth Kronberg
KENNETH KRONBERG
sworn to hye tore me this
24th day of March. 1983
George Canning
NOTARY PUBLIC
GEORGE CANNING
Notary Public, State of New York
No. 01-473S778
Qualified in New York Counts
Commission Expires March 30, 1983
\-49
THE CITY OF NEW YORK
DEPARTMENT OF FINANCE
BUREAU OF TAX COLLECTION
345 Adams St., Bklyn, NY 11201
Telephone 403-4015
In Reply Refer To: Mona Sidarous
Audit Unit Regular Corp. Tax-A_ 10th fl. N
Date: January 5, 1983
Audit No.is) RGCT-6164-GCT
Reg No
Empl. Ident. No. 13-290676S
PMR Printing Co., Inc
207 West 25th Street
New York. NY 1000]
Please be advised that a representative of this Department
will call at your place of business on January 25, 1983 to audit
the tax returns filed by you for the periods indicated below
Fe om Period
Type of Tax ; 76" =
7/1/77 - 6/30/82
General Corporation 6/L/77 — 5/31/82
Commercial Rent
In connection with said audit you are required to make avail-
able all of your books, records, schedules, worksheets and all
other data used in the preparation of these returns for the above
period. These records must be retained by you pending the final
disposition of any proceeding involving a review of said audit
whether before the Commissioner of Finance or the Courts
If the date fixed for the audit is inconvenient to you, please
notify this Department within five (5) days from the date of this
letter of a more suitable date which shall not be more than thirty
30) days from the audit date. If no reply is received within the
time specified, the audit will commence on January 25, 1983.
Very truly yours,
DEPARTMENT OF FINANCE
Audit Section
by G.C. Ollivierre
Unit Head
4-50
Law OFFICES OF
Hochheiser & Aronson
The Chrysler Building
405 Lexington Avenue
New York, N.Y. 10174
Lawrence Hochheiser Telephone:
Kenneth J. Aronson 212) 697-5800
Fred Fisher
1952
Ms. Siderious
New York City Department of Finance
345 Adams Street—10th Floor North
Brooklyn, New York 1120]
Re: P.M.R. Printing Co.. In
Dear Ms. Siderious
Last week, my client, P.M.R. Printing Co., Inc.. received a
telephone cal! from you during which the company was in-
formed that you had been assigned to conduct an audit of their
New York City tax payments. In order to assist you in vour
endeavor, you requested, as a courtesy, copies of the company s
general corporate tax returns and commercial rent tax forms for
the past three vears
In the course of our December 17th and December 20th
telephone conversations, I advised you that I had reason to
believe that this audit may well have been triggered by requests
from outside agencies and might constitute a form of harrass-
ment. I agreed to provide you with photocopies of the relevant
tax returns on the condition that you or someone in your bureau
would state in writing that the audit was not instituted at the
request of any outside federal, state, or New York City agency
You, in turn, declined to furnish such a letter
In the event that the Department of Finance changes its
position on this matter, P.M.R. Printing Co., Inc., will be
happy to furnish you with the requested tax forms
Please feel free to contact me if you have any questions in
regard to this matter
Very truly yours,
Kenneth J. Aronson
4-5]
AFFIDAVIT OF NANCY SHAVIN
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE and NATIONAL EXECUTIVE
COMMITTEE OF THE NATIONAL CAUCUS OF LABOR
COMMITTEES
Plaintiffs,
Vs
ROBERT MORGENTHAUL, District Attorney of New York County
and HAROLD WILSON
Assistant District Attorney of New York County
Defendants
STATE OF NEW YORK
SS
COUNTY OF NEW YORK
NANCY SHAVIN, being duly sworn, deposes and says
1. On November 24, 1982 I was at PMR Printing Company
and I walked out of the offices of PMR at approximately 3:30
p.m
2. In the elevator area of PMR’s floor a man approached me
and asked me if I worked at PMR. I said no. He then asked me
if I knew the bookkeeper. I said yes. The elevator arrived and
the conversation with this gentleman continued in the elevator
and in front of PMR on the street. He said the bookkeeper and
PMR were in alot of trouble. He said the District Attorney was
investigating PMR for taxes, for labor violations, for shady busi-
ness deals and for printing a phony supplement to the New York
Times. He also said that the landlord wanted to kick PMR out
of the building. He then said, how do you know Shaw. I said
she is a friend of mine. He said that Shaw would be spending
her next Thanksgiving in Bedford, a women’s prison, because
she was a co-conspirator
A-52
}
3. I said that these were pretty hefty accusations and asked
him who he was He stated that he was an investigator After
the
ret
She
(
,
man had walked d wn the s reet and was out ot sight |
urned to PMR and asked the receptionist, Roxanne, if she
,
wnized the man who had gotten in the elevator with me
State d th it the man Was if ft Saunde rs
S Nancv Shavin
NANCY SHAVIN
rT ? het ré T trys
ge Cannit
NOTARY PUBLIC
GEORGE CANNING
Public, State of New York
Qualified in New York Counts
mmission Expires March 30, 1983
AFFIDAVIT OF BARBARA BOYD
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE and NATIONAL EXECUTIVE
COMMITTEE OF THE NATIONAL CAUCUS OF LABOR
COMMITTEES
Plaintiffs
Vs
ROBERT MORGENTHAL, District Attorney of New York County
and HAROLD WILSON
Assistant District Attorney of New York County
Defendants
STATE OF NEW YORK
COUNTY OF NEW YORK
BARBARA BOYD, being dulv swotn deposes and savs
1. On November 16, 1952 I went to the premises of PMR
Printing Company following a call from Ken Kronberg stating
that the premises were being searched by detectives who iden-
tified themselves as from the New York City Police Depart
ment. I am a member of the legal staff of the NCLC and decided
to go to PMR to observe the search procedure
2. I arrived shortly after noon and asked to see a copy of the
search warrant. The warrant was shown to me by Kronberg
3. Lasked Kronberg and Beth Shaw if they knew who was in
charge of the search. Shaw told me to look for Sergeant Woike
4. 1 walked to the back of the plant where a video crew and
cameraman were stationed with several detectives. I asked to
speak with Sergeant Woike. Sergearit Woike came up to me and
| asked him whether or not the search warrant, in his view, gave
him the right to video and photograph the entire plant. I also
asked him the name of the Justice who had signed the warrant
A-4
since the signature was unclear. He stated that the warrant did
not say they could video the plant or take pictures but that the
Justice had given his permission to do so and that the Justice's
name was Justice Jeffrey Atlas.
5. I then began to proceed from room to room with Mr.
Kronberg to attempt to determine what the large number of
personnel engaged in the search were doing. Almost immedi-
ately, I was approached by a man who Sergeant Woike subse-
quently identified as Detective O'Rourke. He asked me my
name. I stated my name. He then asked me if 1 worked at PMR.
I replied that I did not. He then asked me where I worked and
I stated that I did not think I had to tell him that. He said that
this information and my address were required for the purposes
of the search. I told him that I did not think this was true and
that I wanted to consult with an attorney. I then proceeded to
attempt to contact an attorney. Detective O'Rourke followed
me to the room where I went to use the telephone and stayed
outside the room during the entire time I was using the tele-
phone. When I walked out I had not reached an attorney and
Detective O'Rourke again asked for my address. I gave him the
address at which point he filled out a Grand Jury subpoena in
my name and served it upon me.
6. Subsequently Detective O'Rourke and Sergeant Woike
came into & room where I was calling attorneys discussing var-
ious questions concerning the propriety of the search activities.
They stated that they had to search the room and that my
handbag was part of the search since it was in the room. Detec-
tive O'Rourke went through my bag and when he got to my
checkbook he pulled it out and copied down the address, stating
that I had given him the wrong address for the subpoena. I
stated that I had not.
7. I believe that the way in which I was served a subpoena
constitutes a violation of my Fourth Amendment rights and an
abuse and violation of the New York statutes concerning Grand
Jury subpoenas. I also believe that I was subpoenaed solely
because I asked the police certain legal questions concerning
the search and my presence interfered with their planned activ-
ities in the search
Ss Barbara Bovd
BARBARA BOYD
Sworn to before me this
24th day of March, 1983
s/ George Canning
NOTARY PUBLIC
GEORGE CANNING
Notary Public, State of New York
No. 01-4738775
Qualified in New York County
Commission Expires March 30, 1953
A-90
AFFIDAVIT OF JEFFREY STEINBERG
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL COMMITTEE and NATIONAL EXECUTIVE
COMMITTEE OF THE NATIONAL CAUCUS OF LABOR
COMMITTEES
Plaintiffs,
vy
ROBERT MORGENTHAL, District Attorney of
New York County and HAROLD WILSON,
Assistant District Attorney of New York County,
Defendants.
STATE OF NEW YORK
COUNTY OF NEW YORK
JEFFREY STEINBERG, being duly sworn, deposes and says:
1. 1am a member of the National Committee of the National
Caucus of Labor Committees ("NCLC’). I am also a journalist
writing regularly for publication in a newspaper, New Solidar-
ity, a weekly magazine, Executive Intelligence Review, and a
law enforcement intelligence bulletin, Investigative Leads. In
my investigative reporting I have concentrated on studies of
international terrorism, international drug-trafficking, and stra-
tegic intelligence and counter-intelligence assessmemts of inter-
national events.
2. I also serve as a security consultant to Lyndon H. La-
Rouche, Jr., the founder of the National Caucus of Labor Com-
mittees and a 1980 Democratic presidential candidate. My
responsibilities in this area involve personally investigating and
supervising investigations of individuals and organizations who,
in their disagreements with the political ideas and goals es-
poused by LaRouche and the NCLC resort to violence, threats,
harassment and unlawful actions against the NCLC. These in-
vestigations are utilized in security evaluations concerning Mr.
A-57
LaRouche’s planned and proposed activities, our own publica-
tion to the general public of the names and activities of these
political opponents and the reasons for their actions, complaints
to appropriate law enforcement authorities and civil litigation
by the NCLC against these unlawful activities. I have had major
responsibilities in this area of work for the NCLC since 1973.
3. I make this affidavit in support of plaintiffs’ application for
a preliminary injunction in this action. As will be fully docu-
mented and set forth below, plaintiffs are presently the targets
ot bad faith law enforcement investigations by the defendants.
These bad faith investigations, conducted by and through polit-
ical opponents of the NCLC, are retaliatory in nature. The
conduct retaliated against is plaintiffs exercise of their rights to
speech, and association, to freedom of the press, {5 petition the
Government for redress of their grievances, to register to vote
and to vote and otherwise to achieve the full rights of American
citizenship by fully and equally participating in the democratic
processes of our social and » litical system.
4. The instant “Profiles of the Temes” and related investiga-
tions conducted by the defendants in New York County do not
occur in a political or a historical vacuum. The complainants and
the defendants have been involved in past unlawful actions
against LaRouche and the NCLC. Private organizations and
individuals who are also involved in this investigation have a
stated policy of generating bad faith law enforcement efforts to
harass, deter, burden and chill plaintiffs in the exercise of their
First Amendment and other Constitutional rights. The same
private individuals and organizations were utilized by the FBI
in its 10 year COINTELPRO program against the NCLC. This
FBI program is presently under Constitutional challenge by
plaintiffs in this District Court. The FBI has reopened its own
unlawful investigations of the NCLC contemporaneously with
defendants’ actions. The New York County investigations and
other current law enforcement investigations reflect the same
techniques, personalities and motivations as were embodied in
the unlawful COINTELPRO progran..
5. This affidavit will therefore first detail the hostile and
political adversary relationship between plaintiffs, deiendants
A-5S
and complainants in the New York County investigations. In
addition, it will situate for the Court the activities of other
political opponents of the NCLC who are intimately involved in
the New York County bad faith activities. The affidavit will also
identify the immediate political activities of the NCLC which
have generated and motivated this bad faith attack
6. On or about October 26, 1983, I began receiving informa-
tion from confidential news source concerning the defendants’
New York County investigation and other law enforcement in-
vestigations to be undertaken simultaneously. This information
was specific and came from usually reliable sources. It is set
forth in detail in this affidavit because the information received
has been confirmed by subsequent developments in this inves-
tigation and others. The information indicates specific abuses of
the Grand Jury process by the defendants and identifies the
New York County investigation as one aspect of a bad faith
investigative effort by political opponents of the NCLC under-
taken in complete contravention of plaintiffs’ Constitutional
rights. Finally, events in the investigation itself demonstrating
its permeation with bad faith and subsequent events known to
me personally which corroborate the information provided by
confidential sources, are specifically set forth
The District Attorney and the Complainants Are Political
Opponents of the NCLC
7. The complaint in this action describes the political activi-
ties and policies of the NCLC in some detail. In the past two
years the NCLC and Lyndon LaRouche have become major
factors in the deliberation of political policy in the Third World.
Additionally, in 1981 political candidates endorsing LaRouche's
policies received significant votes in elections in the United
States. Mr. LaRouche has announced that he is available as a
candidate for the Democratic nomination for the Presidency in
1984 under appropriate political conditions.
8. The political policies and programs advocated by La-
Rouche and the NCLC have also found an increasing audience
4-59
in Washington, D.C., a predictable result in terms of both the
soundness of the policies and the political crisis facing our na-
tion. In 1981 and 1982 the NCLC and associated organizations
have also begun to have a significant impact on events in the
Middle East. This represents the fruition of efforts begun in
1978 toward shaping the policies necessary for a real Middle
East peace, policies of technology transfer and economic devel-
opment for their entire Middle East region. In the course of
these eff@ts the NCLC investigated and exposed the political
factions in Israel and in the Arab states opposing such policies
and acting to foment the climate of terror and economic degen-
eration characterizing the entire region. We identified these
political factions as pawns in British intelligence operations which
have historically used conflicts in the Middle East for British
geopolitical goals and programs. These uses are in turn prem-
ised on the permanent economic underdevelopment of the re-
gion and the sponsorship of fundamentalist religious cults and
movements in order to prevent the formation of stable nation
states in the area. The major new development in the NCLC’s
efforts has been the capacity to intervene directly on political
events in Israel through supporters of LaRouche and the NCLC
in Israel
9. These relative poiitical successes have been met with in-
tensified efforts by political opponents to defeat and discredit
the NCLC’s policies and programs. These efforts are not con-
ducted in the arena of public debate. Instead they are conducted
in campaigns of defamation and villification, threats to individ-
uals who associate themselves with the NCLC, physical threats
and assaults against members of the NCLC, and bad faith and
retaliatory law enforcement actions
A. District Attorne® Morgenthau
10. Robert Morgenthau, the Manhattan District Attorney and
the official who initiated and is supervising the present bad faith
investigation of plaintiffs is personally associated with a political
faction in Israel which has been the subject of repeated investi-
4.60)
gative reports published by members of the NCLC internation-
ally. This political faction is that of Ariel Sharon, Israel's former
Detense Minister
11. The NCLC has investigated and exposed the domination
of the Sharon faction in Israel by organized crime elements
engaged in arms trafficking and profiteering, political terrorism
and drug trafficking activities internationally. This faction is
otherwise identified with the so-called “Israeli Mafia” by law
enforcement officials in the United States and other countries.
The existence and continuing political operation of this faction
is viewed by the NCLC and its collaborators in Israel as inimical
to the interests of Israel and as a grave threat to Israel's national
security
12. Robert Morgenthau is the honorary chairman of PEACE
Prevention of Another Arab County in Eretz Israel), ‘an organi-
zation founded on November 1, 1980 at the Roosevelt Hotel in
New York City by Ariel Sharon. The organization is a propa-
ganda arm of the Gush Emunim and Tekiyah Party in Israel. Its
function is to propagandize in the United States for settlement
of the West Bank and eventual annexation by the State of Israel
13. Other Board members of PEACE are Meir Jolawitz,
Chairman of the Jewish Defense League, Herbert Zweibon,
Chairman of Americans for a Safe Israel, an organization inti-
mately associated with the JDL, Louis Mortimer Bloomfield, a
Canadian intelligence agent who participated with Roy M. Cohn
in a company called Permindex which was blamed by the French
Government for repeated assassination attempts against Charles
DeGaulle, Meshulam Riklis, Rafi Eytan, the head of the Terror
Against Terror unit of the Israeli Mossad, Arnold Forster, for-
mer General Counsel of the Anti-Defamation League of B Nai
B'rith, ( ADL") and General Zeevi, reputed to be the head of
the Israeli mafia
14. In our investigation of PEACE which included interviews
with members of the organization, it was asserted by some of
these individuals that Morgenthau was a close personal friend of
Ariel Sharon. The disproportionate participation of the JDL and
supporters of the JDL in PEACE is also noteworthy. The Israeli
4-6]
Parliament is currently debating a ban of the Kach movement
in Israel for its terrorist activities. The Kach movement is the
JDL organization in Israel. The NCLC has been subjected to
repeated harassment, threats and physical assaults by members
of the JDL. Meir Kahane has identified Lyndon LaRouche and
his associates as political opponents to be eliminated through
terrorist action by the JDL. District Attorney Robert Morgen-
thau and Assistant District Attorney Harold Wilson have repeat-
edly refused to investigate these threats despite referral for such
investigation by federal law enforcement authorities
15. In August and September of 1950, Citizens for La-
Rouche, the campaign committee for Lyndon LaRouche's pres-
idential bid. received numerous death threats and warnings of
physical assaults from the JDL. Complaints concerning these
JDL activities were delivered by Citizens for LaRouche to the
U.S. Attorney's office in the Southern District of New York and
to Robert Morgenthau. Despite advice by the U.S. Attorney for
the Southern District of New York that the complaints seemed
to specify the crime of aggravated harassment under the New
York penal law, Morgenthau and Assistant District Attorney
Harold Wilson refused to investigate or prosecute these JDL
activities. Correspondence relating to these incidents is annexed
as Exhibit “1".
16. A police official familiar with the JDL’s campaigns against
the NCLC has insisted to me that any attempt by him to
investigate JDL harassment against LaRouche would result in
his immediate dismissal from his job through the Manhattan
District Attorney.
17. Meir Jolawitz stated to my investigator, Scott Thompson,
that the JDL was receiving funding for harassment and physical
attacks against LaRouche and the NCLC. (See Thompson affi-
davit, annexed as Exhibit “2"). Upon information and belief,
Jolawitz has also received assurances from Morgenthau that any
attacks against members of the NCLC by the JDL will not be
prosecuted.
18. On March 2, 1983, Meir Jolawitz held a press conference
in New York City to announce that the JDL would launch a
4-62
campaign of physical assaults against its enemies. Jolawitz and
other JDL members appeared at that press conference bran-
dishing shotguns and other weapons. Within 24 hours of that
press conference telephone death threats and repeated nuisance
telephone calls were received by NCLC members and school-
board candidates associated with the NCLC. In Baltimore,
Maryland an individual associated with the JDL approached
Alan Ogden, a member of the NCLC, and threatened to kill
Debra Freeman, an NCLC member and political candidate in
Maryland. (See Ogden affidavit, annexed as Exhibit “3"). To
date. the Manhattan District Attorney has refused to investigate
these incidents despite a formak request to initiate sucn an
investigation
19. Shortly before the beginning of the instant New York
County Grand Jury and other investigations of the NCLC con-
ducted by the defendants, I began work with other reporters on
a major story concerning West Bank real estate deals designed
for major profit and maximum political destabilization impact in
Israel by Kissinger Associates. Kissinger Associates is the cur-
rent international consulting firm run by Henry Kissinger. The
West Bank real estate deals involve individuals associated with
Ariel Sharon and the PEACE organization in the United States.
In fact, PEACE provides the propaganda veneer for the specu-
lative real estate ventures. Two of the real estate cartels in-
volved in the land purchases Jumbo and Israel and Samaria are
directed by Roni Milo and Israel Shenker respectively. Both
Milo and Shenker are Board »nembers of the PEACE organiza-
tion. Information on the West Bank story was provided by
individuals sympathetic to the NCLC in Israel and through an
invectigation conducted under my supervision.
20. Publication of the names of the individuals involved in
the West Bank venture and its political purposes by members
of the NCLC and distrjbution of these publications in Israel,
has, I believe, substantially slowed the progress of this proposed
political destabilization for profit venture in Israel. I also believe
that the instant investigation of the NCLC is in direct response
and retaliation for these and other NCLC investigations and
publications concerning the activities of the Sharon faction.
A-63
21. District Attorney Robert Morgenthau is also a former
National Committee member of the Anti-Defamation League
B Nai Brith and maintains a close collaborative relationship with
individuals in that organization including Kenneth Bialkin. Jus-
tin Finger, Irwin Suall and Arnold Forster. The ADL has con-
sistently defamed the NCLC and Lyndon LaRouche as “anti-
Semitic’ in a persistent international harassment campaign
against LaRouche and his associates dating from 1977
22. The NCLC identifies the ADL as an asset of an intelli-
gence network spawned by Jay Lovestone in the United States
and internationally, a network which is politically affiliated with
the Second Socialist International. This intelligence network has
been repeatedly implicated in international operations invols ing
drugs and political terrorism
23. In the United States, by the statements of ADL officials.
ADL harassment efforts are concentrated on the use of law en-
forcement investigations and compliant law enforcement offi-
cials to achieve the ADL’s declared aim of destroying the NCLC
political organization. According to the statements of Abbott
Rosen, a national official of the ADL, the ADL knows these
investigations are discriminatory and without legal merit. The
design of the harassment effort is to drive the NCLC “out of
business”. State and federal law enforcement investigations are
the preferred vehicle for the ADL’s illegal actions because pri-
vate abusive legal actions expose the participant to civil discov-
ery and might enhance rather than defeat the credibility of the
NCLC. (See the Affidavit of Robin Hyman and the transcript
annexed thereto, Exhibit “G” to the complaint).
22. Lucinda Franks, the District Attorney's wife, is an inves-
tigative reporter for the New York Times and the Daily News.
Her works have focused on the terrorist Weathermen and other
left-wing radical groupings and those works betray a complete
empathy for the goals and beliefs of these organizations. Franks
states that she is trusted by the Weathermen and has been
trusted by similar federal fugitives.
23. The Weathermen and similar left-wing radical terrorist
organizations have been opposed by the NCLC since 1968. The
\-64
NCLC has been subjected to v rbal and written threats trom
these organizations, including the May 19th Coalition and Black
Liberation Army, defamatorn campaigns by their political asso-
ciates and campaigns of harassment and physical assault by the
Revolutionary nion, October Le ague Jewish Detense Le ague
and the Youth International Party
24. The District Attorney is a Board Member of the Puerto
Rican Legal Defense and Education Fund This organization has
been investigated repeatedly by the NCL( concerning its sup-
port operations for the terrorist FALN and the specific details
of these support operations have been published by members of
the NCLC
25. Aside from the District Attornevs sponsorship, protec-
tion and advocacy for organizations and individuals who are
politicalls opposed to the NCLC and are directly engaged in
unlawful operations against the NCL( the District Attornes
was involved in two past incidents demonstrating his hostility
against the NCLC and complicity in political harassment of the
NCLC
26. On December 16, 1981, Dennis King and ( hip Berlet
alleged in a press conference in Washington D.C. that the
NCLC was tied to right-wing elements of the Central Intelli-
gence Agency, including Edwin Wilson and Frank Terpil. Ber-
let and King cited tape recordings of conve
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.