Amicus Curiae Brief — McDade v. United States

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No. 94-849 | DEC 7 WS \

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$n the Supreme Court of the Wnited States

OCTOBER TERM, 1994

JOSEPH M. MCDADE, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF THE SPEAKER AND BIPARTISAN LEADERSHIP GROUP OF THE U.S. HOUSE

OF REPRESENTATIVES, AMICUS CURIAE, IN SUPPORT OF THE PETITION FOR

CERTIORARI

THOMAS J. SPULAK,

General Counsel.

CHARLES TIEFER (Counsel of Record),

Deputy General Counsel and Solicitor.

RICHARD P. STANTON,

LENORE D. DICK,

Assistant Counsels.

U.S. House of Representatives,

The Capitol, H-112,

Washington, D.C. 20515.

(202) 225-9700

Attorneys for the Speaker and

Bipartisan Leadership Group.

DECEMBER 1994

Fe]

QUESTION PRESENTED

Does the Speech or Debate Clause’s protection of a

Member of Congress against being “questioned in any

other Place” allow indicting him for his legislative com-

mittee role and legislative oversight activity?

(I)

TABLE OF CONTENTS

Page

RON III 5 ccs svnsscsscevissssevensseiesersesseeocoseeoeesee.., I

Table of Cases and Authorities .00....00.....ccccccccseeesseeeocc III

Interest of the Amici Curiae .00....0.....cccceccccscscseceeesseeesss...,, 1

Statement of the Case ....0........ccccccsssscssccsseesssssooseesoeseccsccn...., 2

Summary of Argument ...0........ccccccsscssesssseessssscsssesseeecsccc., 7

Reasons For Granting the Writ ...0.........cccccccsssseesseeosssss... 7

1. The Third Circuit Has Split With the Eleventh Circuit

Regarding An Important Constitutional Question Con-

cerning the Separation of Powers .o....0.....ccccccceeocoeeos....... 7

2. This Court Should Repair the Damage Done to the

Protection For Congressional I iii iit ns 11

SPI actinic elbiDbsa dcc hci shecde boc sesesees........ 15

TABLE OF CASES AND AUTHORITIES

Cases:

Bowsher v. Synar, 478 U.S. 714 ET eS 1, 4

Doe v. McMillan, 412 U.S. 306 Sa 8

Eastland v. United States Servicemen’s Fund, 421

I hi a passim

Gravel v. United States, 408 U.S. TE 8

Helstoski v. Meanor, 442 U.S. 500 a 14

Hutchinson v. Proxmire, 443 U.S. 111 |. 8

Sinclair v. United States, 279 U.S. 263 (1929) ........ 11, 12

United States v. Brewster, 408 U.S. 501 ea 14

United States v. Helstoski, 442 U.S. 477 te 7

United States v. Johnson, 383 U.S. 169 | an 7

United States v. Swindall, 971 F.2d 1531 (11th Cir.

1992), cert. denied 114 S.Ct. 683 (1994) ........... passim

Watkins v. United States, 354 U.S. 178 (1957) ........... 12

Constitution, Statutes, and Legislative Materials:

WD. Comet, Ort. 7, 9G 0. Bocce ccsescccceeeccossessss...... passim

__...____. it thei terial a a a aa aa ia 2

(III)

IV

Miscellaneous:

Department of Defense Appropriations for 1990,

Hearings Before the Subcomm. on the Department

of Defense of the House Comm. on Appropriations,

101st Cong., Ist Sess. Part 6 (1989) .................00....

Department of Defense Appropriations for 1992,

Hearings Before the Subcomm. on the Department

of Defense of the House Comm. on Appropriations,

102d Cong., 1st Sess., Part 6 (1991) ............ ee

Department of Defense Appropriations for 1993,

Hearings Before the Subcomm. on the Department

of Defense of the House Comm. on Appropriations,

102d Cong., 2d Sess., Part 4 (1992) ............ eee

GAO, Battlefield Automation: Army Command and

Control Systems Acquisition Cost and Schedule

Changes, GAO/NSIAD-88—42FS, December 1987 ..

GAO, Separate Army and Air Force and Air Force

Airborne SINCGARS Programs May Be Uneco-

nomical, GAO/NSIAD-85—50, January 31, 1985 ....

GAO, Battlefield Automation: Status of the Army

Command and Control System Program, GAO/

NSIAD-86-—184FS, August 1986 ............... cco

GAO, DOD Acquisition Program: Status of Selected

Systems, GAO/NSIAD-88—160, June 1988 ..............

GAO, Combat Radios: Army’s_ Selection of

SINCGARS’ Second-Source Contractor, GAO/

NSIAD—88—200, July 1988 .0......eceeeesssssseeeeteeeeeees

GAO Reports: Communication Acquisition: Army

Still Needs to Determine Battlefield Communica-

tions Capability, GAO/NSIAD-93-33 (November

DODD) cnccishthitintacctndnipsctsbaninsibideeathtenidinbeslnnitcdinstabeenttis

1993 DOD Budget: Potential Reductions in Com-

mand, Control, and Communications Programs,

GAO/NSIAD-92-297BR (September 1992) ..............

Communications Acquisitions: Army Needs to Ensure

Economy in SINCGARS Radio Procurement, GAO/

NSIAD-91-119 (June 1991) .0...... ccc eeeeeeeeteeeseeseeeees

Battlefield Automation: Army Tactical Command

and Control System’s Schedule and Cost, GAO/

NSIAD-91-118BR (April 1991) 00.0.0... eens

Communications Acquisition: Issues Invoking Army’s

Single Channel Ground and Airborne Radio Sys-

tem, GAO/NSIAD-90-BR (March 1990) ..................

Page

9n the Supreme Court of the Wnited States

OCTOBER TERM, 1994

No. 94—849

JOSEPH M. MCDADE

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF THE SPEAKER AND BIPARTISAN LEADERSHIP GROUP OF THE US.

HOUSE OF REPRESENTATIVES, AMICUS CURIAE, IN SUPPORT OF THE PETITION

FOR CERTIORARI

INTEREST OF THE AMICI CURIAE

The Speaker and Bipartisan Leadership Group of the

House of Representatives (“House amici”)! have been a

regular mechanism for the House to present its institu-

tional position in litigation. See, e.g., Bowsher v. Synar,

478 U.S. 714 (1986); United States v. Swindall, 971 F.2d

1531 (11th Cir. 1992), cert. denied, 114 S.Ct. 683 (1994).

This appeal presents issues of importance for the commit-

tee system of the House of Representatives. House amici

participated in the briefing and argument of this case,

both in district court, United States v. McDade, 827 F.

Supp. 1153 (E.D. Pa. 1993), (A-62 to A-158), and before

the panel of the court of appeals. United States v.

1The amici curiae are the Honorable Thomas S. Foley, Speaker of

the House of Representatives, and the Bipartisan Leadership Group of

the House of Representatives, consisting of the Honorable Richard A.

Gephardt, Majority Leader; the Honorable Robert H. Michel, Repub-

lican Leader; the Honorable David E. Bonior, Majority Whip; and the

Honorable Newt Gingrich, Republican Whip.

(1)

2

McDade, 28 F.3d 283 (3d Cir. 1994) (one judge dissent-

ing), (A-1 to A-61.) House amici also participated in the

briefing of the petition for rehearing en banc, reh’g en

banc denied, 28 F.3d 283, 305 (3d Cir. 1994) (four judges

dissenting), (A—159 to A-160).

STATEMENT OF THE CASE

A divided panel of the Third Circuit split with the Elev-

enth Circuit on a fundamental aspect of the Speech or

Debate Clause. Since the root of the issue is the content

of the Indictment regarding Representative McDade’s role

and activities as Ranking Minority Member on the House

Subcommittee on Defense Appropriations and the House

Small Business Committee, and the oversight activity of

the Defense Appropriations Subcommittee, a statement of

the case appropriately describes these.

In its structure, its theories, and its emphasis, the In-

dictment focuses on Representative McDade’s committee

role. The Indictment consists of five counts. Its RICO

count, Count Five, builds on two conspiracy counts,

Counts One and Three, each of which connects to one of

two gratuity counts, Counts Two and Four. The Indict-

ment charges Representative McDade with receiving var-

ious gratuities and with conspiracy, but it does not stop

there, as prior indictments of Members of Congress have

stopped; it uses his committee assignments and oversight

activity against him. Count Three relies upon the allega-

tion that “[iJn or about January, 1985, defendant

McDADE became ranking minority member of the House

Appropriations Committee, Subcommittee on Defense Ap-

propriations.”2 The House of Representatives establishes,

by House Rule X, the Defense Appropriations Subcommit-

tee to conduct the annual legislative cycle for the $300

billion defense appropriation bill, with the accompanying

oversight.

2This is first alleged in Count One, para. 3 at 2; in Count Three,

it is realleged by incorporation in Count Three, para. 1 at 16.

3

Count One also relies upon the defendant’s committee

leadership assignment, starting, in para. 2 of the Indict-

ment, with “Beginning in or about 1982, defendant

McDADE was ranking minority member of the House

Small Business Committee.” Indictment at 1. This count

focuses both on the office of Ranking Minority Member

for the House Small Business Committee, and on the

Ranking Minority Member’s committee staff. Count Five’s

RICO charge defines the defendant’s racketeering “enter-

prise” squarely in terms of his legislative committee as-

signments. It defines the enterprise as follows, in perti-

nent part:

THE ENTERPRISE

3. Defendant JOSEPH M. McDADE ... . super-

vised the activities of Congressional staff members

who worked at his direction on the congressional

committees on which he held official positions. De-

fendant JOSEPH M. McDADE, together with these

offices and individuals, constituted an enterprise as

er sTFy in Title 18, United States Code, Section

4).

Indictment, Count Five, para. 3 at 24 (emphasis added).

Count Five begins by realleging the pertinent portions of

Counts One and Three, the conspiracy counts, so when it

speaks of “congressional committees,” it realleges the pre-

vious identifications of the congressional committees.

The Indictment draws heavily on the Defense Appro-

priations Subcommittee’s legislative oversight regarding

the SINCGARS (walkie-talkie)? program. In particular, it

alleges a 1988 letter by the House Defense Appropria-

tions Subcommittee’s Ranking Minority Member as the

key * overt act in Count Three:

SSINCGARS (Single Channel Ground and Airborne Radio System)

is planned to be the Army’s next generation of very high frequency

combat radios, like the famous “walkie-talkies” of past wars.

‘In what is otherwise largely a list of things allegedly provided to

the defendant, like transportation from Washington to Philadelphia or

from Scranton to Washington, this particular overt act sticks out

Continued

4

17. On or about June 7, 1988, defendant

McDADE, wrote to the Secretary of the Army re-

questing that the Army delay in making a final de-

cision on a_ possible “second source” for - the

SINCGARS program.

Indictment, Count Three, Overt Acts, para. 17 at 22. The

Subcommittee functions through such correspondence, in

the times between public and formai events like hearings

and meetings.

In this letter, Representative McDade, as the Defense

Appropriations Subcommittee’s Ranking Minority Mem-

ber, discusses the essence of the intent of committee legis-

lative activity and its continuing legislative investigation.

“The Committee has received interim reports from [the

General Accounting Office,] GAO, and the Army has com-

pleted its source selection. However, the GAO’s final re-

port will not be completed until July 15th.” House amici

district court brief, Exhibit 1.5 When the Indictment al-

leges that “defendant McDADE, wrote to the Secretary of

the Army requesting that the Army delay in making a

final decision,” Indictment, Count Three, Overt Acts,

para. 17 at 22, the prosecution means to show as criminal

this writing.

Our [Defense Subcommittee] intent throughout

in monitoring the second source strategy and as-

signing a GAO review was to ensure this competi-

tion. . . . This was a key reason behind directing

GAO to monitor the source selection process. . . .

I strongly believe it would be a mistake to rush to

contract award prior to the Committee’s receipt

and review of the GAO’s findings.

House amici district court brief, Exhibit 1.

sharply as something significant the defendant himself allegedly did

as Ranking Minority Member. This particular overt act also echoes

earlier ones alleged to be meetings on this subject. Indictment, Overt

Acts, para. 9 at 21.

5The GAO serves as Congress’s agent for legislative investigations.

Bowsher v. Synar, 478 U.S. 714, 727-30, 737 (1986).

5

The GAO officially reported to the Defense Appropria-

tions Subcommittee that the SINCGARS development

program “has been plagued with production and reliabil-

ity problems ever since the engineering development

phase was bypassed in order to start initial production in

fiscal year 1983.” GAO, Battlefield Automation: Army

Command and Control Systems Acquisition Cost and

Schedule Changes, GAO/NSIAD-88—42FS at 19, Decem-

ber 1987. Congress followed ita Appropriations Commit-

tees’ recommendations and deleted all but $10 million of

the SINCGARS’ $209 million budget request for fiscal

year 1987.7 In September 1987, the Army issued a re-

quest for a proposal to award a contract in May 1988 to

a second source.

Throughout this developmental period, the Defense Ap-

propriations Subcommittees maintained a continuing

high level of bipartisan Congressional oversight over the

SINCGARS program, because of its significance for mili-

tary combat readiness, its high costs, and its plague of

production and reliability difficulties. The multi-year leg-

islative oversight process took on its typical forms: GAO

reports, committee oversight hearings, reports, and cor-

respondence, with the Count Three indicted Overt Act

correspondence right in the middle of that process. That

letter was written, as its discusses, because the GAO

needed time to complete its pending study.® Broad Con-

®This particular GAO report notes, on its first page, that it was pre-

pared at the request of Chairman Bill Chappell, Jr. of the Defense Ap-

propriations Subcommittee—not his Ranking Minority Member, the

indicted Representative.

7 At one point it was expected to cost in excess of $6.5 billion. The

Army approved the requests for the radios in 1974 and advanced de-

velopment began in 1978. Initial production contracts were awarded to

ITT Corporation in 1983 and 1985. After the program experienced dif-

ficulties in first article testing in 1985 and continued to experience

problems in fiscal year 1986, the Army cancelled progress payments

to the contractor. See GAO reports cited infra.

® Between 1985 and 1988 GAO reported to the Appropriations Com-

mittees on the continuing and evolving SINCGARS program problems

Continued

84-6900 - 94-2: QQ 3

6

gressional oversight interest in SINCGARS, going far be-

yond this particular Ranking Minority Member, has con-

tinued unabated to the present time.? With the Indict-

ment focuses on so classic and major a Congressional

oversight activity, this case squarely poses the issue of in-

dicting a Member for his role in committee oversight.

no less than five times. GAO, Separate Army and Air Force Airborne

SINCGARS Programs May Be Uneconomical, GAO/NSIAD-85—50,

January 31, 1985; GAO, Battlefield Automation: Status of the Army

Command and Control System Program, GAO/NSIAD-86-184FS, Au-

gust 1986 (requested by Chairman Ted Stevens and Chairman Bill

Chappell, Jr.); GAO, Battlefield Automation: Army Command and

Control Systems Acquisition Cost and Schedule Changes, GAO/

NSIAD-88—42FS, December 1987 (requested by Chairman Bill Chap-

pell, Jr.); GAO, DOD Acquisition Programs: Status of Selected Systems,

GAO/NSAID-—88-—160, June 1988 (requested by Chairman Sam Nunn);

GAO, Combat Radios: Army’s Selection of SINCGARS’ Second-Source

Contractor, GAO/NSAID-88—200, July 1988 (requested by Chairman

John C. Stennis and Chairman Bill Chappell, Jr.). -

®GAO Reports: Communication Acquisition: Army Still Needs to De-

termine Battlefield Communications Capability, GAO/NSIAD-93-33

(November 1992) (requested by Chairman John P. Murtha); 1993 DOD

Budget: Potential Reductions In Command, Control, and Communica-

tions Programs, GAO/NSIAD-92-297BR (September 1992) (requested

by Chairman Daniel K. Inouye and Chairman John P. Murtha); Com-

munications Acquisitions: Army Needs to Ensure Economy in

SINCGARS Radio Procurement, GAO/NSIAD-91-119 (June 1991) (re-

quested by Chairman John P. Murtha); Battlefield Automation: Army

Tactical Command and Control System’s Schedule and Cost, GAO/

NSIAD-91-118BR (April 1991); Communications Acquisition: Issues

Invoking Army’s Single Channel Ground and Airborne Radio system

GAO/NSIAD-90-80BR (March 1990) (requested by Chairman Daniel

K. Inouye and Chairman John P. Murtha).

Appropriations Hearings: Department of Defense Appropriations for

1990, Hearings Before the Subcomm. on the Department of Defense of

the House Comm. on appropriations, 101st Cong., 1st Sess., Part 6,

95-97, 102-104, 110-112 (1989); Department of Defense Appropriations

for 1992, Hearings Before the Subcomm. on the Department of Defense

of the House Comm. on Appropriations, 102d Cong., 1st Sess., Part 6,

504—506 (1991); Department of Defense Appropriations for 1993, Hear-

ings Before the Subcomm. on the Department of Defense of the House

Comm. on Appropriations, 102d Cong., 2d Sess., part 4, 101-103

(1992).

7

Without repeating Representative McDade’s statement

of the procedural background of the appeal, it may be

briefly noted that when the Third Circuit panel affirmed

the district court’s decision not to dismiss the Indictment,

one judge dissented in part (Scirica, J.), (A-51 to A-61),

and that four judges dissented from the denial of Rep-

resentative McDade’s petition for rehearing en banc. (A-

159 to A-160).

SUMMARY OF ARGUMENT

It is well established that the Speech or Debate protec-

tion of a Member of Congress against being “questioned

in any other Place” forbids indicting him for his legisla-

tive activity, including his legislative activity in commit-

tee. Gratuities and conspiracies can be alleged in indict-

ments of Members, but only so long as the indictment

and trial do not “question” that which is legislative. Unit-

ed States v. Helstoski, 442 U.S. 477, 489 (1979); United

States v. Johnson, 383 U.S. 169, 178 (1966). Now, the

Third Circuit has split with the Eleventh Circuit on the

fundamental issue of whether a Member’s committee role

and oversight activity are legislative in nature, with the

Third Circuit holding in this case that they are not legis-

lative.

This case warrants review for two reasons. The Court

should resolve a split in the Circuits on a fundamental

question of importance regarding the Congress’s constitu-

tional protections. Moreover, this Court should reinforce

the protection given to Congressional oversight. Eastland

v. United States Servicemen’s Fund, 421 U.S. 491 (1975).

REASONS FOR GRANTING THE WRIT

1. The Third Circuit has Split with the Eleventh

Circuit Regarding an Important Constitutional

Question Concerning the Separation of Powers.

In United States v. Helstoski, 442 U.S. 477, 489 (1979),

and United States v. Johnson, 383 U.S. 169, 178 (1966),

this Court firmly established that the Speech or Debate

Clause protection for Members of Congress, while allow-

8

ing indictments for gratuities and conspiracies, forbids

use in such indictments of matters that are legislative in

nature. The Speech or Debate Clause, art. I, §6, cl. 2 pro-

vides that “for any Speech or debate in either House, they

[the Senators and Representatives] shall not be ques-

tioned in any other Place.” Numerous Supreme Court

cases have elucidated that the protection for “either

House” includes the committees of either House. The

Clause protects “the deliberative and communicative

processes by which Members participate in committee and

House proceedings with respect to the consideration and

passage or rejection of proposed legislation. .. .” East-

land v. United States Servicemen’s Fund, 421 U.S. 491,

504 (1975) (emphasis added) (quoting Gravel v. United

States, 408 U.S. 606, 625 (1972)). It is a well established

Speech or Debate principle that “committee reports are

also protected.” Hutchinson v. Proxmire, 443 U.S. 111,

124 (1979); accord, Doe v. McMillan, 412 U.S. 306, 311

(1973); Gravel v. United States, 408 U.S. at 617.19

Accordingly, the Eleventh Circuit, in the case of Rep-

resentative Swindall, United States v. Swindall, 971 F.2d

1531 (11th Cir. 1992), cert. denied, 114 S.Ct. 683 (1994),

correctly followed this Court’s principles regarding the

fundamental constitutional principle protecting Congres-

sional committees. Swindall held that “Speech or Debate”

does not “allow reference to be made to [the Member’s]

committee memberships both in grand jury proceeding

and at trial... .” 971 F.2d at 1543.1! As the statement

10 See, e.g., Eastland, 421 U.S. at 501-602 (committee investigations

protected) (“Without exception, [the Supreme Court has) read the

Speech or Debate Clause broadly to effectuate its purposes;” 408;

Gravel, 408 U.S. at 617 (committee hearings protected) (the Supreme

Court has “plainly not taken a literalistic approach in applying the

privilege”).

‘1 Swindall reversed three counts on which Representative Swindall

had been convicted, because the prosecution had used his committee

membership against him. The Department of Justice accepted the va-

lidity of the rule laid down, neither seeking rehearing nor petitioning

for certiorari. Representative Swindall himself sought unsuccessfully

9

of the case lays out, this indictment of Representative

McDade directly, broadly, and strongly violated Swindall.

Each and every one of the indictment’s five counts specifi-

cally alleges and relies on the Congressman’s role as

Ranking Minority Member on the House Subcommittee

on Defense Appropriations and the House Small Business

Committee.!2 No attempt was made by the indictment to

charge only the receipt of gratuities, the conspiratorial

communications, and the like, and to omit Representative

McDade’s role as committee Ranking Minority Member.

On the contrary, both the district court and the panel un-

equivocally found that the prosecution would rely on Rep-

resentative McDade’s committee role.!4

The Third Circuit expresses bluntly its readiness to

split with the Eleventh Circuit over the Swindall prin-

ciple. It starts by reprinting at length what Swindall

says. See, e.g., A-18 to A-19 (quoting Swindall, 971 F.2d

at 1543):

There are two reasons why the Speech or Debate

Clause prohibits inquiry into a member of Congress

committee assignments even if the member’s spe-

cific legislative acts are not mentioned. First, our

review of Supreme Court precedent convinces us

that the ntidiogs protects legislative status as well

as legislative Acts.

After discussing Swindall at length, A-18 to A-19, the

panel makes some attempts to characterize what it is re-

fusing to follow in that opinion, but ultimately concludes

rehearing and certiorari, on issues involving the other counts in his

case regarding which his committee memberships had not been used.

121f anything, Swindall presented less patent error than the pros-

ecution’s case now. In fact, the Swindall Indictment did not even men-

tion Representative Swindall’s committee status. “None of the ten

counts of the Indictment referred directly to Swindall’s committee

memberships, however.” 971 F.2d at 1540.

13 The district court order noted: “The indictment itself includes ref-

erences to Mr. McDade’s committee positions, and the government ad-

mits that it intends to prove that Mr. McDade was able to use his sta-

tus as the ranking minority member on two House committees... .”

(A-70). The appellate panel recognized that “in this case the indict-

ment relies on the defendant’s committee status. . . .” (A—24).

10

the lengthy Part III of its opinion by holding that “If. . .

[the Swindall] court meant to embrace the proposition

that the Speech or Debate Clause broadly prohibits proof

of legislative or committee status, we would be compelled,

for the reasons already explained, to disagree.” (A—26).

It requires little exegesis to show the exceptional im-

portance of the Third Circuit’s decision in Representative

McDade’s case to disagree with the Eleventh Circuit’s de-

cision in Representative Swindall’s case. First, the issue

itself concerns not some mere detail of statutory interpre-

tation or even of constitutional penumbra, nor some nar-

row rule among the multitude that govern the broad

range of governmental actions. This is an aspect of con-

stitutional law going to the heart of the separation of

powers, concerning a direct clash between the Executive

and Legislative Branches over whether the Executive

Branch can use the Members’ role in committees—the

chief structure of the Congress—to indict them.

As explained in a much-quoted passage in United

States v. Johnson, 383 U.S. 169, 178 (1966), the Speech

or Debate “privilege has been recognized as an important

protection of the independence and integrity of the legis-

lature” and as “reinforcing the separation of powers so de-

liberately established by the Founders.” Its highest func-

tion is “protecting against possible prosecution by an un-

friendly executive” as “one manifestation of the ‘practical

security’ for ensuring the independence of the legisla-

ture.” Jd. at 179. The split created by the Third Circuit

is located where the Executive Branch can exercise the

greatest intimidation against Members of Congress, by

multi-count felony indictments pervasively utilizing the

offending matter. It leaves the Congress in the untenable

situation that whether its Members are protected in their

committee role depends on the Circuit in which they

might be indicted, sued, subpoenaed, or otherwise sub-

jected to being “questioned in any other Place.”

The reasons suggested by the Third Circuit for uphold-

ing the use made of Representative McDade’s committee

a

11

role are not reasons to view lightly the damage done to

the separation of powers. It does not matter whether the

stated purpose for indicting a Member regarding his com-

mittee role is to prove someone’s “state of mind.” This

issue in this case is not the hearsay rule; a Member has

been “questioned in any other Place” once he is indicted,

regardless of the purpose of the indicting. Equally, it does

not matter whether the prosecutor declares the Congres-

sional committee to be a “victim,” with the indictment as

a way of saving or helping the Congress. The Speech or

Debate protection never depended on the Executive

Branch’s avowals of desires to assist the Legislative

Branch, but on the crossing of the constitutional lines

meant to protect the Congress. Once Members of Con-

gress must consider the law to be that a grand jury could

use their committee role against them, exposing them for

that committee role to multi-count felony and RICO in-

dictments, they must consider themselves divested of a

key element of the protection of the Speech or Debate

Clause.

A split in the circuits over a question of this importance

warrants resolution by this Court.

2. This Court Should Repair the Damage Done to

the Protection For Congressional Oversight.

This Court has recognized the vital importance for the

constitutional and democratic operation of government for

Congressional oversight to receive its constitutional pro-

tection, and this case warrants review to reinforce that

protection. As the Court held in Eastland v. United States

Servicemen’s Fund, 421 U.S. 491, 505 (1975), “To con-

clude that the power of inquiry is other than an integral

part of the legislative process would be a miserly reading

of the Speech or Debate Clause in derogation of the ‘in-

tegrity of the legislative process.’” This Court has often

described the high importance of that investigative over-

sight process.

For example, in Sinclair v. United States, 279 U.S. 263,

297-98 (1929), a Senate committee, like the Defense Ap-

12

propriations Subcommittee here probing SINCGARS, was

investigating a defense department (in Sinclair, the

Navy), and like the Defense Appropriations Subcommit-

tee, the Sinclair committee’s focus of questioning was

whether the Navy had been carrying out the law or going

a wasteful way of its own. The Court sustained com-

pletely such constitutional oversight by a Congressional

committee:

The question propounded was within the author-

ization of the committee and the legitimate scope of

investigation to enable the Senate to determine

whether the powers granted to or assumed by the

Secretary of the Interior and the Secretary of the

Navy should be withdrawn, limited, or allowed to

remain unchanged.

Id. at 298. The Court in Sinclair thus approved the valid-

ity of committee oversight by a committee, holding that

“‘the two Houses of Congress, in their separate relations,

possess not only such powers as are expressly granted to

them by the Constitution, but such auxiliary powers as

are necessary and appropriate to make the express pow-

ers effective,” Id. at 291 (quoting McGrain v. Dougherty,

273 U.S. 135, 173 (1929)). The Sinclair Court recognized

that “the power of inquiry is an essential and appropriate

auxiliary to the legislative function.” Id.

Indeed, the Supreme Court has long recognized that

“[t]he power of the Congress to conduct investigations is

inherent in the legislative process.” Watkins v. United

States, 354 U.S. 178, 187 (1957). Watkins stated that:

That power is broad. It encompasses inquiries

— bed engin oe i pre Amma as

well as pro or ibly needed statutes... .

It comprehends mak ome into departments of the

Federal Government to expose corruption, ineffi-

ciency or waste.

Id.44 Nowhere do “inquiries concerning the administra-

tion of existing laws” involve a subject more important to

14The Court in Watkins saw the fundamental “danger to effective

and honest conduct of the Government if the legislature’s power to

13

the national security and the proper use of the resources

appropriated for that security than in the annual cycle of

oversight of defense appropriations. At the center of a

Congressional committee’s constitutional oversight task is

the work of the Defense Appropriations Subcommittee ad-

dressed in this Indictment, namely, the Subcommittee’s

inquiries as to whether a department, such as the De-

fense Department, is carrying out recent laws.

Part of what drove the sharp division in the Third Cir-

cuit—the four judges who voted for rehearing en banc,

and the division in the panel—may well have been the

recognition of the injury to Congressional oversight from

the decision of the divided panel. Two judges (Alito, J.,

and Bassler, D.J.) had refused even to consider a key as-

pect of the appeal—the Representatives’s acts of over-

sight—but one Judge (Scirica, J.) dissented at length on

this issue as well as voting with three other judges to

grant rehearing en banc. As Judge Scirica explained:

I would hold that true legislative oversight falls

within the protection of the Speech or Debate

Clause... . [Wle have jurisdiction to decide

whether overt acts in the indictment violate the

Speech or Debate Clause. .. .

The majority holds that jurisdiction to determine

whether overt acts challenged on Speech or Debate

grounds should be stricken “does not satisfy the re-

quirement that the right at issue . . . be jurisdic-

tionally ‘important’”. . . . I respectfully disagree.

(A—52).

As Judge Scirica explains, Congressional oversight

serves a vital and constitutionally protected purpose:

Generally speaking, oversight is the way Con-

gress evaluates legislation, and in the appropriate

manner, monitors the operations of executive de-

partments and agencies. rly done, oversight is

part of our system of checks and balances. The

term covers a range of formal and informal activi-

ties, of which some may be privileged.

probe corruption in the executive branch were unduly hampered.” Id.

at 194~-95.

14

(A-56). Judge Scirica explained the importance of judicial

review to protect against such inclusion of Speech or De-

bate matter in the indictment. (A—52 to A-61). Such pro-

tection was “the conscious choice of the Framers’ but-

tressed and justified by history.” (A-60 to A-61) (dissent-

ing opinion (quoting Eastland, 421 U.S. at 510) (quoting,

in turn, United States v. Brewster, 408 U.S. 501, 516

(1972)).

Helstoski v. Meanor, 442 U.S. 50, 508 (1979) stated that

“lilf a Member ‘is to avoid exposure to [being questioned

for acts done in either House] and thereby enjoy the full

protection of the [Speech or Debate] Clause his ...

challenge ... must be reviewable before

exposure . . . occurs.’ Abney, supra, 431 U.S. at 662, 97

S.Ct. 2042.” In allowing Members a pre-trial appeal, this

Court reasoned:

We agree that the guarantees of that Clause are

vitally important to our system of government and

therefore are entitled to be treated by the courts

with the sensitivity that such important values re-

quire.

Helstoski, 442 U.S. at 506. In this case, while the Rep-

resentative, the amici, the dissent, and even the prosecu-

tion! all recognized that Helstoski v. Meanor neces-

sitates that Congress receive the protection of such pre-

trial review of the indictment for such acts of legislative

oversight, the divided panel refused to do so. Instead, it

held:

The question whether the two overt acts should

have been stricken . . . does not satisfy the re-

quirement that the right at issue in a collateral

order appeal must be jurisprudentially “impor-

eer ;

(A-48). The divided panel chose this method for overlook-

ing that patent flaw in the Indictment, a flaw that the

prosecution all but conceded to exist. (A—55, n.3) (dissent-

15 The majority noted the prosecution’s position when observing: “the

parties and the amici in this case seem to assume” that this “ruling

under the Speech or Debate Clause is appealable,” (A—47).

15

ing opinion). Exploitation of this new doctrine would

allow prosecutors most of what this Court’s Helstoski de-

cisions meant to preclude.

CONCLUSION

This case presents issues of fundamental importance to

Congress and the separation of powers, on which the cir-

cuits have split and vital doctrines of this Court have

been undermined. For these reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

THOMAS J. SPULAK,

General Counsel.

CHARLES TIEFER (Counsel of Record),

Deputy General Counsel and Solic-

itor.

RICHARD P. STANTON,

LENORE D. DICK,

Assistant Counsels.

U.S. House of Representatives,

The Capitol, H-112,

Washington, D.C. 20515.

(202) 225-9700

Attorneys for the Speaker and

Bipartisan Leadership Group.

DECEMBER 1994.

O