Brief for the United States — United States v. Johnson

Opinions below

Jurisdiction

Statement

INDEX

CPPCC Or ewewrsossseseeeeCessoSSeetesecoswEwesecsseeseoesesesecucecoeco

Argument:

Introduction and summary. .......-.-.--ccccccccee-c-------..

I. The speech or debate clause does not render

Congress impotent to provide for judicial

sanctions against a Congressman who ac-

cepts a bribe in exchange for a legislative

I titans catia

II.

Conclusion

A.

The rationale of the speech or debate

clause bars liability founded on the

content of a legislative speech but does

not bar liability based on an antecedent

corrupt agreement.......

The English background sustains the

view that the privilege of free speech

and debate was designed to protect the

content of speech, not the antecedent

act of accepting a bribe...

The court of appeals’ construction of

the speech or debate clause is opposed

to the design of the framers .................

Article I, Section 5 of the Constitution does

not restrict the power of Congress to pro-

vide for judicial punishment of a member

a et

19

26

31

38

Il

CITATIONS

Cases: Page

Alzua V. Johnson, 231 U.S. 106 ..........-.-----cceccecseeeeenees 11

Anderson V. Dunn, 6 Wheat. 204 ...............------seeeee" 32, 34

Barr V. Matteo, 360 U.S. 564 ...........-.....-e-eeereeeeenenees 13, 24

Braatelien V. United States, 147 F.2d 888 ..........-.-.- 11

Bradley v. Fisher, 18 Wall. 335........----------------e---+-0-+* 11

Burton v. United States, 202 U.S. 344 ..............---- 18, 31, 32

Chapman, In re, 166 U.S. 661 ...........-. eke Ae eee 33

Cochran v, Couzens, 42 F.2d 783, certiorari denied,

BD U.S. 874 .....c-ceccecrecceceecsscesrensenseseenserencensenseneenenss 10

Coffin V. Coffin, 4 Mass, 1 ........-..-----r-seeeeeerenseres 15, 16, 26

Goldman v, United States, 245 U.S. 474 .......----00+ 10

Gregoire V, Biddle, 177 F.2d 579 .......----------eeeneeerenee 9

Jurney V. MacCracken, 294 U.S, 125... 33, 36

Kilbourn v. Thompson, 180 U.S, 168 ............-----+ 14, 15

Marshall v. Gordon, 243 U.S, 521 ........-....----e+seeee0 82

May V. United States, 175 F.2d 994, certiorari de-

nied, 388 U.S, 880..........-...-.-sssseceseseseseseseentenneeenes 18

New York Times Co. v. Sullivan, 376 U.S. Se ivan 24

Randall v. Brigham, 7 Wall, 523 -.........------------8 11

Regina v. Bunting, 7 Ont. Rep. 524 (1885, Can-

BAR) nececneveeceenscecoscesnvrensneneenrenencsesensnenesesnernsosensnersees 26, 34

Regina v. White, 13 S.C.R. 322 (1875, N.S.W.) ....- 34

Rex Vv. Boston, 33 C.L.R. 386 (1923, Australia) ..... 84

Rex V. Pitt, 8 Burr. 1335 (1767).........------------------ 33

Tenney V. Brandhove, 341 U.S, 367 ..........----- 14, 15, 18, 36

United States v. Brown, No. 399, O.T. 1964 -..........- 30, 36

United States v. Bryan, 339 U.S. 323 .........----------- = 36

United States Vv. Hood, 343 U.S. 148 ........----------------- 10

United States v. Manton, 107 F.2d 834 ..........--------- 11

United States v. Rabinowich, 238 U.S. — 10

Wason, Ex parte, 4 Q. B. 573 (1869) ........-.-------------- 25

Watkins v. United States, 354 U.S. 178 .......-- 24, 32, 35, 36

Williamson V. United States, 207 U.S. i sciadeinses 10, 33

Constitutions, Articles of Confederation and Statutes:

Ill

Page

U.S. Constitution:

Article 1, Section 5.0... sieienh 31, 33

po a -- we

Articles of Confederation, Article 5, clause 5 . 26

Act of April 30, 1790, 1 Stat. 112, Sec. 21. 11

Act of February 26, 1853, 10 Stat. 170... 14

Act of January 24, 1857, 2 U.S.C. 192... . 82, 36

Act of October 23, 1962, 76 Stat. 1119, 18 U.S.C.

____ GRRE eee ESTE ea a 14

_i “4 =A eEe OS 14

ol. _” }e 10, 14, 18

2 NR 2,4

. § . Se 3,7

Massachusetts Constitution of 1780 (Mart “The

. W > ati, 26

New Hampshire Constitution of 1784, Part 1 (The

Bill of Rights) Article XXX. 26

Bill of Rights of 1689 (1 Will. & Mary Sess

i Ratittikctdiiveiiseiie ite 23

Miscellaneous:

1 Anson, Law and Custom of the Constitution (3d

Oe RR eae aS 19, 23, 27, 28

Bowyer, Constitutional Law of England (2d ed.

Ee RT LATS EEE ae ag 33

1 Brant, James Madison The Virginia Revolution-

IED neiathiiedieie 30

Chrimes, English Constitutional History (1953) _. 19, 22,

28

Clarke, Parliamentary Privilege in The American

I lee 35

DERE OETA A aE TE 14

The Federalist (Bourne ed. 1914)

AIT septiniatieacaiemidcaahtecei A tit a 36

(VS EAS AERIS LN ON A oe 36

ie a

IV

Miscellaneous—Continued Page

6 Holdsworth, History of English Law (1924) ... 19, 22

10 Holdsworth, History of English Law (1988) .. 28

1 May, The Constitutional History of England

IRE A SEES AEE IER VE Re PE en 27, 28

May, Law of Parliament (7th ed, 1873) .......... 19, 21, 23

Neale, Free Speech in Parliament (Tudor Studies,

ee ea er 19, 20, 21, 22

Oppenheim, Congressional Free Speech, 8 Loyola

ee ee deispbaumbinees 37

1 Poore, Constitutions and Charters (1878) ........ 26

2 Poore, Constitutions and Charters (1878) ........ 26

Potts, Power of Legislative Bodies to Punish for

Contempt, 74 U. Pa. L. Rev. 691 (1926) ............ 35

S. Doc, No. 278, 58d Cong., 2d Sess, ...................-.-. 37

Taswell-Langmead, English Constitutional His-

tory (11th ed, Plucknett, 1960) ....19, 20, 21, 22, 28, 35

2 Taylor, The Origin and Growth of the English

RR Ter ee 21

Veeder, Absolute Immunity In Defamation; Legis-

lative and Executive Proceedings, 10 Colum. L.

Rev. 131 (1910) ..... s ceinelicaatlinsiabssdidianddemncmatainialedadie 20

3 Wharton, Criminal Law and Procedure, § 1383

CI ET sass rcicnennmnisogicinitletcignanicemenanse 10

Wittke, The History of English Parliamentary Pri-

ID CIE eisiiiictseieccesoritennnscicinsits 19, 20, 21, 23, 29, 34, 35

2 Works of James Wilson (Andrews ed, 1896) .... 27

Yankwich, The Immunity of Congressional Speech

—Its Origin, Meaning and Scope, 99 U. Pa.

ek, RINSE RE De Tee CR Ce a 37

a

In the Supreme Court of the United States

OCTOBER TERM, 1965

No. 25

UNITED STATES OF AMERICA, PETITIONER

Uv.

THOMAS F. JOHNSON

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals is reported at

337 F. 2d 180. The opinion of the district court is

reported at 215 F. Supp. 300.

JURISDICTION

The judgment of the court of appeals was entered

on September 16, 1964. On October 19, 1964, the

Chief Justice extended the time for filing a petition

for a writ of certiorari to and including November 15,

(1)

—_— SS ANG 12 ; LAE CO RITE

ss »~ -

3]

ee

1964 (a Sunday), The petition was Aled on Novem-

ber 16, 196d, and was granted on January 24, 1965

(879 U.S, 98S), The jurisdiction of this Court rests

on 28 USC. 12641),

QUESTION PRESENTED

Whether the Constitution, particularly Article 1,

Section 6, providing that “for any Speech or Debate

in either House,” no member of Congress shall “be

questioned in any other Place,” bars criminal prose.

cution of a Congresaman for accepting a bribe to

make a apoeeh inh Congress,

CONSTITUTIONAL AND STATUTORY PROVESTIONS

INVOLVED

Article I, Section 6, of the United States Conatitu.

tion provides in part:

The Senators and Representatives shall receive

a Compensation for their Services, to be ascern

tained by Law, and paid out of the Treasury af

the United States, ‘They shall in all Cases, except

Treason, Melony and Rreach af Peace, be privi-

loged from Arvest during their Attendance at the

Session of their respective Houses, and in going

to and returning from the same; and for any

Speech or Debate in either House, they shall not

be questioned in any other Place,

IS US.C. 281, whieh was superseded by more com.

prehensive legislation sudsequent to the commission af

the acts involved in this case, provided in pertinent

part:

8

Whoever, being a Member of or Delegate to

Congress, or a Resident Commissioner, either be.

fore or after he has qualified, or the head af a

department, or other officer or employee of the

United States or any department or ageney

thervot, directly OY indirectly receives or ARToOR

fo receive, any compensation for ANY services

rendered or to be rendered, either by himself or

another, in yelation to ANY proceeding, contract,

claim, Controversy, change, accusation, arrest, or

other matter in which the United States is a

party or dinetly or indinetly interested, before

any department, Ageney, court martial, offleer,

or any civil, military, or naval commission, shall

be fined not more than $10,000 ov imprisoned not

more than two years, or both; and shall be in.

capable of holding any offices of honor, trust, or

profit under the United States,

IS USC. STL provides in pertinent part:

If (Wo or more persons conspire either to cam:

Mit any offense against the United States, or to

defraud the United States, or any agency thereat

iN any manner or for WAY purpose, and ane ar

more of such persons do HUY act to effeet the ab.

ject of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than

five years, or both.

STATEMENT

On April 1, 1963, an eight-count indictment was

returned in the United States District Court for the

District of Maryland charging in count one that re.

spondent and Frank W. Roykin, then Congresamen,

conspiied with two others between April 1, 1960, and

: 7

December 31, 1961, to defraud the United States of

its right to have the Congressmen’s duties performed

free from corruption and uninfluenced by payments

of money and to have the business of the Department

of Justice conducted impartially. It was charged that,

as part of the conspiracy, both Congressmen were

paid by the other defendants to try to persuade the

Department of Justice to postpone the trial

of, and ultimately dismiss, mail fraud charges

pending against persons connected with the First

Colony Savings and Loan Association and that re-

spondent was paid to make a speech in Congress de-

fending the operation of independent savings and loan

associations (App. 1-19).* | The seven other counts

(App. 19-30) charged that respondent, aided by the

other defendants, was paid to intercede with Justice

Department officials to persuade them to postpone the

mail fraud trial and dismiss the pending indictment,

in violation of the conflict-of-interest statute then in

effect, 18 U.S.C. 281 (see supra, pp. 2-3). Respond-

ent’s motion to dismiss the indictment on various

grounds, including the contention that count one was

barred by the speech or debate privilege of Article

I, Section 6 (supra p. 2), was denied by the trial

court (App. 48, 52-56). After a trial by jury, all de-

fendants were convicted on all counts (App. 42-43).

Respondent was sentenced to imprisonment for a con-

current period of six months on each count and was

fined $5000 on the conspiracy count (App. 44-45).

1“Anp.” refers to the appellants’ appendix in the court

below, filed as Volumes 1 and 2 of the record in this Court.

“R.” refers to Volume 8 of the record filed in this Court. “Tr.”

refexs to the Trial Transcript.

a

5

In pertinent part, the government’s evidence showed

that, in 1960 and 1961, defendant J. Kenneth Edlin,

the dominant figure in two Maryland Savings and

loan institutions (First Colony and First Continen-

tal), was under indictment for mail fraud in connec-

tion with activities of First Colony (App. 205-206,

265-266). In April 1960, Edlin and an associate, de-

fendant William L. Robinson, consulted with Martin

Heflin, a public relations counselor, on the desirability

of having a speech delivered in Congress on behalf of

independent Savings and loan associations (App. 180-

184). After a meeting with respondent in May, Hef-

lin and Robinson supplied material for a proposed

speech to respondent’s administrative assistant (App.

189-190; cf. R. 4-5). In the first week in June, Edlin

told his secretary that he had a Congressman as a

“new contact,” as a result of which, “we are going

to be rich” (App. 161). At about the same time,

Robinson informed Edlin’s Secretary that Congress-

man Johnson was “on our pay roll” (App. 162). On

June 20, 1960, Robinson sent respondent a check for

$500 (App. 250-251, 564-565). Ten days later, re-

spondent delivered a speech in Congress defending

independent Savings and loan associations (App. 931-

937).* Either immediately before or immediately

i

after the speech was made, Edlin displayed a copy of

its text, commenting that there was no reason to

fear the mail fraud indictment since “we have friends

on the Hill” (R. 4). The only reprints made of the

speech were purchased by First Continental and were

used to induce prospective savers to deposit money in

Edlin’s savings and loan associations (App. 205-206,

257-264; R. 11-12).

Between August 1960 and March 1961, respond-

ent received $3700 in checks from Robinson (Tr. 197-

199, 716-728, 957-958). Between March and October

1961, respondent and Congressman Boykin visited of-

ficials of the Department of Justice to discuss the

mail fraud charges pending against Edlin in an effort

to convince the Department that the indictment should

be dismissed (App. 356-358, 366-389, 837-846). Dur-

ing this period, respondent received over $19,000 from

Robinson and First Continental (R. 5-11, 15-22).

In his defense, respondent testified that he delivered

the speech in response to a newspaper article and in

order to create an issue for a forthcoming congres-

sional campaign (App. 567-569). He said that the

$500 check he received in June 1960 was a campaign

contribution (App. 565-569; R. 84-85) and that the

other payments were for the performance of various

legal services (App. 575-747; R. 93-193).

The court of appeals found “the evidence sufficient

to support a guilty verdict on all counts” (R. 326).

Nevertheless, it reversed respondent’s conviction on

count one on the ground that the speech or debate

clause of Article I, Section 6 bars a criminal prosecu-

tion of a Congressman for accepting money to make

6

7

a speech in Congress. The court deemed this interpre-

tation necessary in order “to promote the independ-

ence of all congressmen” and “[t]o avoid restraint

on free expression on the floor of either House” (R.

304). It ruled in this connection “that whenever the

motivation for making a speech is called into ques-

tion, the privilege applies,” and “that the Constitu-

tion has clothed the House of which [respondent] is a

member with the sole authority to try him” (R. 299,

303). In reaching this conclusion the court of appeals

(R. 301) agreed with the district court (App. 56)

that, for the purpose of determining the applicability

of Article I, Section 6, there is no Significant differ-

ence between a charge under the conflict-of-interest

law that a Congressman accepted a bribe to make a

speech and a charge, as here, that a Congressman

‘nade a speech for money as part of a conspiracy to

ucfraud the United States of its governmental func-

‘ions in violation of 18 U.S.C. 371 (supra p. 3).

The court vacated respondent’s conviction on the

substantive counts and remanded for a new trial on

the ground that evidence relating to the speech preju-

diced his trial on these counts. The convictions of the

other defendants were affirmed.

ARGUMENT

INTRODUCTION AND SUMMARY

More than one hundred and ten years ago, Con-

gress made it a crime for a member of Congress to ac-

cept a bribe to influence his vote or decision on any

matter pending before him in his official capacity.

Although it was understood that the speech or de-

8

bate clause protected voting and other official con-

duct, no member of Congress, either then or at the

time ef later similar enactments, evinced concern

that the enforcement of such legislation would im-

pinge upon the freedom of legislative speech and

debate. Yet the court below reversed respondent’s con-

viction on the supposition that his prosecution for

taking a bribe in exchange for an official act would

have an inhibiting effect on freedom of speech in

Congress.

In our view, the court below, not Congress, mis-

construed the constitutional provision, The scope of

the speech or debate clause is dictated by its purpose

—to promote a free legislative process by relieving

Congressmen of apprehension over civil or criminal

liability arising out of the performance of their pub-

lic duties. While this purpose requires the immuniza-

tion of legislators from liability founded upon the

content of their official speech, it does not justify im-

munity from prosecution for the antecedent unlawful

act of taking a bribe to make a speech in Congress—

an act which is an offense whether or not the speech

is ever given. This critical distinction between lia-

bility based on the content of legislative speech and

liability based on accepting a bribe is borne out by

decisions in the analogous area of judicial privilege

and is sustained by analysis of the historical back-

ground of the speech or debate clause itself. Not

only is the expansive immunity granted by the deci-

sion of the court below unnecessary to satisfy the

purpose and history of that constitutional provision ;

it is opposed to the basic concept of responsive rep-

za

9

resentative government. The Constitution does not

require that only the House of which a faithless legis-

lator is a member may punish him for taking a bribe

in connection with his official duties. As we have

noted, Congress itself has never doubted that it could

make that act a crime, triable in the courts, subject to

all the constitutional safeguards which surround a

jury trial.

I,

THE SPEECH OR DEBATE CLAUSE DOES NOT RENDER

CONGRESS IMPOTENT TO PROVIDE FOR JUDICIAL

SANCTIONS AGAINST A CONGRESSMAN WHO ACCEPTS

A BRIBE IN EXCHANGE FOR A LEGISLATIVE SPEECH

A. THE RATIONALE OF THE SPEECH OR DERATE CLAUSE BARS

LIARILITY FOUNDED ON THE CONTENT OF A LEGISLATIVE

SPEECH RUT DOES NOT RAR LIABILITY BASED ON AN

ANTECEDENT CORRUPT AGREEMENT.

1, The speech or debate clause is aimed at promot-

ing an independent Congress, uninhibited from taking

action deemed to be in the public interest. To that

end, it provides assurance to a representative that no

civil or criminal liability can be founded upon his of-

ticial speech or action, in so doing, it permits the un-

scrupulous Congressman “to vent his spleen upon

others” with impunity because “to submit all officials,

the innocent as well as the guilty, to the burden of a

trial and to the inevitable danger of its outcome,

would dampen the ardor of all but the most resolute,

or the most irresponsible, in the unflinching discharge

of their duties.” Gregoire vy. Biddle, 177 F. 2d 579,

O81 (CA. 2) (L. Hand, setting forth the rationale

of the executive privilege); see Cochran y. Couzens,

10

42 F. 2d 788, 784 (C.A.D.C.), certiorari denied, 282

U.S. 874 (applying such rationale to the legislative

privilege).

This rationale is applicable in suits based upon

the content of a legislator’s speech or action, where

immunity is necessary to prevent impediments to the

free discharge of his public duties. But it does not

justify granting him immunity from prosecution for

accepting or agreeing to accept money to make a

speech in Congress. The latter case poses no threat

which could reasonably cause a Congressman to re-

strain himself in his official speech, because no speech,

as such, is being questioned. It is only the antece-

dent conduct of accepting or agreeing to accept the

bribe which is attacked in such a prosecution.

‘Whether the party taking the bribe lives up to his

corrupt promise or not is immaterial. The agreement

is the essence of the offense; when that is consum-

mated, the offense is complete.” 3 Wharton, Criminal

Law and Procedure, § 13883 (Anderson ed. 1957) ; see

also United States v. Hood, 348 U.S. 148, 151.° Pre-

cisely the same concept underlies a conspiracy charge.

It is settled that “conspiracy is the offense which

the statute defines without reference to whether the

crime which the conspirators have conspired to com-

mit is consummated.” Williamson v. United States,

207 U.S. 425, 447; United States v. Rabinowich, 238

U.S. 78, 85-86; Goldman v. Uniied States, 245 U.S.

The proscription of 18 U.S.C. 201(c) is directed against

any public official who, in exchange for the performance of

an official act, “corruptly asks, demands, exacts, solicits, seeks,

accepts, receives, or agrees to receive anything of value * * *.”

11

474, 476-477, Thus, if respondent, after accepting

the bribe, had failed to carry out his bargain, he

could still be prosecuted for the same offense charged

here, but it could not be argued that any speech was

being “questioned” in his prosecution. The fact that

respondent fulfilled his bargain and delivered the cor-

rupt speech should not render the entire course of

conduct constitutionally protected.

2. The critical distinction between a prosecution

based on the content of an official speech and one

founded on the antecedent unlawful conduct of ac-

cepting or agreeing to accept a bribe to make the

speech, overlooked by the court below, is well recog-

nized in the case of other established privileges. It

is settled that a judge cannot be held liable for the

content of any judicial opinion. See Randall v. Brig-

ham, 7 Wall. 523, 536-539; Bradley v. Fisher, 13

Wall. 335, 347-350; Alzua v. Johnson, 231 U.S. 106,

111. But it has never been thought that he is im-

mune from prosecution for accepting a bribe in con-

nection with his official duties. Nothwithstanding

the Constitution’s provision for impeachment of

judges guilty of misconduct, the first Congress, many

of whose members were closely identified with the

drafting of the Constitution, enacted a statute pro-

viding criminal sanctions against judges who take

bribes in exchange for an “opinion, judgment or de-

cree.” Act of April 30, 1790, Sec. 21, 1 Stat. 112, 117.

The principle which controls this case was applied

in Braatelien v. United States, 147 F. 2d 888 (C.A.

8), where a “Conciliation Commissioner” appointed

under the Frazier-Lemke Act of 1940 was charged

12

as a member of a conspiracy to defraud the United

States by the corrupt administration of that Act. Re-

jecting Braatelien’s contention that, under the judi-

cial privilege, he was not subject to punishment for

criminal acts performed by him in his judicial ca-

pacity as a Commissioner, the court stated (147 F.

2d at 895):

It is true that as a general rule a judge can not

be held criminally liable for erroneous judicial

acts done in good faith. * * * But he may be

held criminally responsible when he acts fraudu-

lently or corruptly. Judicial title does not render

its holder immune to crime even when committed

behind the shield of judicial office. The sufficient

answer to this defense is that Braatelien was

not indicted for an erroneous or wrongful judi-

cial act. He is charged with conspiracy to de-

fraud the United States by corruptly administer-

ing or procuring the corrupt administration of

an Act of Congress. The crime charged is dis-

tinct from his official acts. It might have been

consummated without the performance of a single

judicial act on his part. The crime was com-

plete when the unlawful agreement was made

and an overt act was consummated by anyone

of the conspirators, even though such overt act

be not one laid in the indictment. [Emphasis

added. |

See also United States v. Manton, 107 F. 2d 8384

(C.A, 2).

In the prosecution of a judge for caking a bribe

in exchange for a judicial decision, as in that of a

member of Congress for taking a bribe in exchange

13

for his official vote or speech, the corrupt official act

may be evidence of the offense, but the act as such

is not being “questioned” as it would be, for example,

in an action for libel. In a suit for libel, giving the

speech or rendering the judicial decision would itself

constitute the alleged offense, while in a bribery

prosecution, the offense is discrete from the speech or

the decision.*

3. In applying the constitutional provision de-

signed to promote legislative independence, the judg-

ment of Congress that criminal prosecution for bribe-

taking in connection with official duties does not re-

strain legislative freedom is entitled to great weight.

Congress was certainly aware of its privilege of free

speech and was undoubtedly aware that the privilege

encompassed not only debate but voting and other of-

ficial conduct. Yet Congress has consistently proscribed

bribe-taking in connection with such conduct without

evidencing the slightest qualm that punishment of the

corrupt antecedent act would hamper the legislative

process. In 1853 it enacted a statute making it a

crime for a member of Congress to accept a bribe

“to influence his vote or decision on any question, mat-

ter, cause, or proceeding which may then be pending,

or may by law, or under the Constitution of the

* Similarly, the privilege recognized in Barr v. Matteo, 360

U.S. 564, could not conceivably extend to prevent the trial of

government officials for taking money to perform acts

which are within the scope of their authority. Under the

reasoning of the court below, such officials could never be

prosecuted for bribery without violating the privilege since

a bribery prosecution would “question” the motives behind

the official act.

aiialabsl

14

United States, be brought before him in his official

capacity * * *.” 10 Stat. 170, 171. During the de-

bates resulting in the adoption of this Act, no claim

was made by any legislator that this Act would im-

pinge upon or impede his right of uninhibited free-

dom of speech.’ See the opinion of the district court,

App. 54.

As recently as 1962, in a comprehensive revision

of the bribery, graft and conflict-of-interest laws,

Congress included its own members in the definition

of “public officials’ whose delinquencies are judicial-

ly punishable. Act of October 23, 1962, 76 Stat. 1119,

18 U.S.C. 201. Once again, there was no suggestion

in any of the debates that such legislation might in

any way restrict the freedom of congressional speech

or action. :

4. The test used by the court of appeals—that the

privilege applies “whenever the motivation for mak-

ing a speech is called into question” (R. 299)—is too

sweeping a formulation and is not properly tailored

to the purposes of the speech or debate clause. Con-

trary to the opinion below, nothing in Kilbourn v.

Thompson, 103 U.S. 168, or Tenney v. Brandhove,

341 U.S. 367, requires so broad a standard. In Kil-

bourn this Court ruled, inter alia, that a Congress-

man who sponsors and votes for a resolution calling

for the arrest of one allegedly in contempt of Con-

gress is immune from a civil suit for malicious prose-

5 The Senate debate on the 1862 statute, 12 Stat. 577, indi-

cates the strength of congressional corviction that bribe-

taking in exchange for official acts should be judicially pun-

ishable even though the content of those acts is itself pri-

vileged. *0 Cong. Globe 3260-3261.

_——

15

cution. And Tenney held that, in providing civil

remedies against persons who, under color of law,

deprive individuals of their constitutional rights, Con-

gress could not have intended to authorize suits

against legislators for injuries arising from their

official conduct. Both cases may be cited for the prop-

osition that, where the speech and debate privilege is

otherwise applicable, its protection may not be with-

held on the ground that the offensive official act was

improperly motivated. But neither case extends the

privilege to include prosecutions not founded upon

Official conduct.

That the two cases relied upon by the court below

do not support ‘its ruling is underscored by considera-

tion of Coffin v. Coffin, 4 Mass. 1, which this Court

cited in Kilbourn as “perhaps, the most authoritative

case in this country on the construction of the provi-

sion in regard to freedom of debate in legislative

bodies.” 103 U.S. at 204. Coffin involved a civil suit

for slander against a member of the Massachusetts

House of Representatives for a statement made by

him to a fellow legislator in a “passage-way” of the

legislative assembly, while unrelated business of the

House was going on. On these facts, the court held

that the privilege did not apply, because the allegedly

slanderous remarks were not made while the defend-

ant “was in the discharge of any official duty” (4

Mass. at 29). As the court pointed out, “when a rep-

resentative pleads his privilege, to entitle himself to

it, it must appear that some language or conduct

of his, in the character of a representative. is the

16

foundation of the prosecution, for in no other char-

acter can he claim the privilege” (id. at 30).°

The error of the court below was perhaps prompted

by its misconception of the role of respondent’s speech

in his trial. The court’s observation that “one-half

of the testimony introduced at the trial related to the

speech” (R. 302) is both inaccurate and insufficient-

ly refined. Only a very small portion of the testimony

in the government’s case-in-chief (roughly 50 pages

of over 2200 pages in the trial transcript) “related”

to the speech in any way. And none of that testimony

concerned the content or giving of the speech. Rather

it dealt with the plans of Edlin, Robinson and Heflin

to have such a talk given in Congress (App. 180-

184), their drafting and editing of the speech (App.

189-190; R. 4-5), their meetings with respondent and

his administrative assistant (App. 189-190), Robin-

son’s and Edlin’s comments concerning the speech

and how it would benefit them (App. 161-163; R. 4-

5), and the use of the reprints of the speech pur-

chased by First Continental (App. 205-206, 257-264;

R. 11-12). The court of appeals’ own summary of the

evidence (R. 315-317) shows that, except for respond-

®¢ The court also said in this connection (4 Mass. at 30):

“But to consider every malicious slander, uttered by a citizen,

who is a representative, as within his privilege, because it

was uttered in the walls of the representatives’ chamber to

another member, but not uttered in executing his official

duty, would be to extend the privilege farther than was in-

tended by the people, or than is consistent with sound policy,

and would render the representatives’ chamber a sanctuary

for calumny—an effect which never has been, and, I con-

fidently trust, never will be, endured by any House of Repre-

sentatives of Massachusetts” (emphasis in original).

17

ent’s testimony in his defense,’ the evidence “relat-

ing” to the speech did not focus on the giving of the

speech as such but rather on the unlawful antecedent

conduct of which the speech was one end product.

We, of course, readily acknowledge that the offense

arising from the bribe must be fully proved and that

it may not be inferred from the mere fact that the

legislator has made a speech favorable to particular

interests. In this case, however, the evidence of re-

spondent’s guilt, which invol\ed matters wholiy ex-

traneous to the speech in Cougress, was “more than

sufficient to support the jury’s verdict” (opinion of

the court of appeals, R. 320). Where, as here, the

government clearly proved its case independent of the

speech or inferences therefrom, no purpose of Article

I, Section 6 warrants a reversal.

5. The “practical reason” relied on by the court of

appeals (R. 304)—that a “groundless charge [of

bribery] may be sufficient to destroy [a member of

Congress] at the polls” and that “the process of in-

dictment by a grand jury and inquiry in a court may

itself be so devastating that an innocent congressman

may well fear it”—argues too much. Since a “ground-

less charge” of corruption with respect to any official

act of a Congressman “may be sufficient to destroy

him at the polls,” the court’s reasoning would require

that no bribery statute could ever be invoked against

"As we have noted (n. 2, supra) the official copy of re-

spondent’s speech was placed in evidence by respondent him-

self.

18

any member of Congress.* This, of course, is not the

law. See, e.g., Burton v. United States, 202 U.S. 344;

May v. United States, 175 F. 2d 994 (C.A.D.C.),

certiorari denied, 338 U.S. 830. Moreover, if an un-

scrupulous prosecutor were out “to get” a particular

member of Congress, he could secure indictments on

“groundless charges” of tax evasion or other crimes

unrelated to his official duties; but such a possibility

has never warranted the adoption of a rule of abso-

lute immunity from criminal prosecution. In short,

the court of appeals has applied a rule which does

not fit this case. It is one thing to say that free and

uninhibited legislative debate is such an important

right of the people that, in order to prevent its ero-

sion, protection is given the subject matter of any

speech in Congress, no matter how unworthy its

purpose, by immunizing a legislator from civil suit

or criminal prosecution for delivering it. See Tenney

v. Brandhove, 341 U.S. 367, 377. It is an entirely dif-

ferent matter to immunize a Congressman, as was

done here, from prosecution for a corrupt agreement

which would have been actionable whether he made

the speech or not.

®18 U.S.C. 201 (c) prohibits a Congressman from accept-

ing anything of value in return for: (1) the performance of

any official act; (2) the commission of any fraud on the

United States; and (3) doing or omitting any act in viola-

tion of his official duty.

Since most State constitutions also embody the speech or

debate privilege (see Tenney Vv. Brandhove, 341 U.S. 367, 375

n. 5) the reasoning of the court below also calls into question

the numerous provisions directed against the misconduct and

conflicts-of-interest of State legislators. See the statutes set

out in the opinion of the district court, App. 54 n. 6.

PEASE RP ss ROHL HC cmeneyRste tr NRO NNER: seme een eae

19

B. THE ENGLISH BACKGROUND SUSTAINS THE VIEW THAT

THE PRIVILEGE OF FREE SPEECH AND DEBATE WAS DE-

SIGNED TO PROTECT THE CONTENT OF SPEECH, NOT THE

ANTECEDENT ACT OF ACCEPTING A BRIBE.

There is nothing in the historical development * of

the legislative privilege in England to Support the

view that it was intended to offer a legislator immu-

nity from prosecution for receiving a bribe to perform

an official act. To the contrary, the entire develop-

ment related solely to the content of official speech

or action.

1. The first significant claim that a legislator

could not be punished for the content of legislative

Speech occurred in 1455 in the case of Thomas Yonge

(Young), one of the “knights for the shire and town

of Bristol.” ** He complained to Commons that he

1924) ; Chrimes, English Constitutional History (1953), and

*°There is an earlier case (1397) involving one Thomas

Haxey who, because he had _ petitioned Commons that the

on the petition of the Commons which pointed out that the

entire procedure was “contrary to the usual course in Parlia-

ment, and in destruction of the most ancient customs of the

Commons.” A number of commentators, however, have dis-

20

had been arrested for a motion made by him in Com-

mons concerning the descent of the throne. The im-

portance of his petition for relief was the novelty

(at that time) of his claim that members of Com-

mons by their ancient liberty “ought to have their

freedom to speke and sey in the Hous of their as- .

semble, without eny maner chalange, charge or puny-

eion therefore to be leyce to theyme in eny wyse.” "'

Under Henry VIII, the Commons began to articu-

late its privileges, at first hesitantly but later with

inereasing vigor and reliance upon precedent. In

1512 one Richard Strode, a member of the Commons,

had been imprisoned by a county court on the ground

that certain bills he had introduced in Commons were

contrary to the law of the local “stannary” (Parlia-

ment) of the county that he represented. By statute,

Commons declared the local proceedings void and fur-

ther enacted, with the approval of the Lords and the

Crown, that all suits against members of Parliament

“for any bill, spekyng, reasonyng, or declaryng of

any mater or maters concerning the Parliament, to

be communed and treated of, be utterly voyd and of

non effecte.”" By 1542, and generally thereafter,

the petition of the Speaker of the House of Commons

counted the significance of the case in the development of the

privilege because Haxey was not an elected member of Com-

mons. See, ¢.g., Taswell-Langmead, 174-175, 196; Neale, 259;

but ef. Veeder, Absolute Immunity In Defamation: Legislative

and Executive Proceedings, 10 Colum, L. Rev. 181, 182, n.

4 (1910).

Witthe, 24-25; Tasiwell-Langmead, 196, 247-249,

? Taswell-Langmead, 248-249.

a ao a

21

presented to the King at the opening of Parliament

claimed the privilege of legislative freedom of speech

among the prerogatives of members of the Commons."

In the time of Elizabeth I, when Commons was

claiming the right to initiate legislation, particularly

on ecclesiastical matters, Commons asserted an un-

impeachable freedom of speech and debate. Thus in

1566, when the Queen commanded Parliament to ter-

minate its discussion concerning her possible mar-

riage or her naming of a successor, a member of

Commons questioned whether the Queen’s directive

cutting off debate was “not against their liberties

and privileges.” After continued discussion in

Commons, the Queen found it advisable to revoke

her prohibition." In the next twenty years, this ques-

tion of initiative led to repeated conflict with the

Crown. Commons asserted that a limitation on its

power to initiate and debate legislation was in deroga-

tion of its privilege of free speech, while Elizabeth

sought to control the power of initiative by declara-

tions of prohibition and temporary imprisonment of

especially vociferous members of Commons."* In her

'* Taswell-Langmead, 246-247.

The other basic privileges at the time were (1) freedom

from arrest and molestation; (2) access to the King’s person

Whenever occasion required and (3) that all proceedings in

Commons should receive the most favorable construction from

the Crown. See May, 64-65.

“ Neale, 276; Taswell-Langmead, 811-3138, 316-317; Wittke,

26-27.

See Taswell-Langmead, 313-317; Witthe, 26-27: 2 Taylor,

The Origin and Growth of the English Constitution, 206-207

(1904) ; Neale, 278-285.

22

eagerness for tactical victories, however, Elizabeth

revoked prohibitions previously imposed on legisla-

tive speech and left unused powers normally exer-

cised by royal authority."* As a consequence, Com-

mons gained the experience and boldness it needed in

its struggle with the Stuarts, who sought to create a

monarchy free in both theory and practice from the

restraints of Commons.

In 1604, one year after James I acceded to the

throne, Commons claimed that “the privileges of

Parliament were as much their ‘undoubted right,’ as

the right of property which every subject had in his

lands or goods; that the House of Commons was a

court of record and the highest court in the land;

and that these privileges being necessary for the con-

duct of the business of the House, they could not be

‘withheld, denied, or impaired, but with apparent

wrong to the whole estate of the realm.’” When

James thereafter imposed custom duties without par-

liamentary consent, commanding Commons not to

challenge the Crown’s prerogative in this matter,

Commons responded that it was “an ancient, general,

and undoubted right of Parliament to debate freely

all matters which do properly concern the subject and

his right or state; which freedom of debate being once

foreclosed, the essence of the liberty of Parliament is

withal dissolved.”

16 Neale, 285-286.

176 Holdsworth, 93; Taswell-Langmead, 334-336.

18 Chrimes, 144-145. This principle was later embodied in

the Protestation of 1621. Taswell-Langmead, 357-358.

i ah

a

23

The last significant case in which the privilege of

legislative free speech was challenged by the Crown

as an infringement on its prerogatives came during

the reign of Charles I. In 1629, Eliot, Hollis and

Valentine, all members of the Commons, had been im-

prisoned under a judgment of the Kings Bench for

speeches in Commons which Charles I considered libel-

ous and seditious. This judgment was strongly con-

demned by Commons, and in 1641 it declared the

proceedings to be against the law and privilege of

Parliament.

In reversing the judgment during the Restoration,

Commons resolved that the Act of Henry VIII in

Strode’s Case in 1512, supra, p. 20, was not a special

act but a law of general application, “extending to

indemnify all and every the members of both houses

of Parliament, in all Parliaments, for and touching

any bills, speaking, reasoning, or declaring of any

matter or matters in and concerning the Parliament

to be communed and treated of * * *.””

The principle of legislative freedom to speak was

firmly fixed when it was embodied in the Bill of

Rights of 1689 (I Will. & Mary Sess. 2, c. 2), which

declared “That the freedome of speech and debates or

proceedings in Parlyament ought not to be impeached

or questioned in any court or place out of Parlya-

ment.” * Thus, by the beginning of the eighteenth

century, the significant century of American colonial

development, Commons had the unchallanged right to

” Wittke, 29-30.

*° May, 113, 115-116; 1 Anson, 158-154; Taswell-Langmead,

451.

24

complete latitude of discussion in the House and the

right to initiate and introduce legislation on any mat-

ter whatsoever. The embodiment of this right was at

the core of the speech or debate clause of our Consti-

tution.”

It is significant that the development of the privi-

lege in no way related to conduct beyond the official

duties of the legislators. It represented an effort to

obtain legislative initiative and to ward off curtail-

ment of Parliament’s authority through the device

of labelling offensive legislative speech as “libelous”

or “seditious.” There is a sharp difference between

such charges as those against which the speech or

debate privilege was erected and the charge of accept-

ing bribery. As to the former, it may be said that

“erroneous statement is inevitable in free debate, and

* * * it must be protected if the freedoms of expres-

sion are to have the ‘breathing space’ that they ‘need

* * * to survive * * *.’” New York Times Co. v.

Sullivan, 376 U.S. 254, 271-272; see also Barr v.

Matteo, 360 U.S. 564. Proof of bribery, on the

21 There is no basis for reading the speech or debate clause

as embodying any concept of exclusive congressional authority

to punish members for taking bribes. It is true that the

growth of Parliament’s right to discipline its own members

paralleled, to some extent, the development of the speech and

debate privilege in sixteenth and seventeenth century England.

But the expansion of the so called lex parliamenti—Parlia-

ment’s authorit? to punish offenses to its dignity or integrity,

in many instances to the excJusion of the courts—is essen-

tially an eighteenth century d&velopment. It took place after

the content of the speech and debate privilege had become

fixed and was not taken over into American jurisprudence.

Watkins v. United States, 354 U.S. 178, 192.

one, ~

Wn yee ip aid apedaint toads ei ated

~—

other hand, involves no such danger of impinging

upon the “breathing space” required for free expres-

sion because of inferences from inadvertent misstate-

ments.

2. No post-revclutionary English decision in any

way undermines the distinction between liability for

the content of a legislative speech and liability for a

corrupt agreement to make a speech. Ex parte Wason,

4 Q.B. 573 (1869), relied on by the court of appeals

(R. 297) does not espouse a contrary doctrine. In that

case, the complainant alleged that he had given Lord

Russell a petition to be presented to the House of

Lords for the removal of the Lord Chief Baron from

his office. He further alleged that Russell, the Lord

Chief Baron and another member of the House agreed

to and did make false statements in the House, to the

effect that the complair’s charge against the Lord

Chief Baron was untrue. On these allegations, the

court held that it had no jurisdiction over the complaint

on the ground “that statements made by members of

either House of Parliament in their places in the

House, though they might be untrue to their knowl-

edge, could not be made the foundation of civil or

criminal proceedings, however injurious they might

be to the interest of a third person. And a conspiracy

to make such statements would not make the persons

guilty of it amenable to the criminal law.” (Opinion

of Cockburn, C.J., 4 Q.B. at 576) (Emphasis added. )

The Court’s own words point up the crucial dif-

ference between Ex parte Wason and the present case.

Here, unlike Wason, no statement in the legislature is

the foundation of the charge. What is being prosecuted

4 sg »

_ LR AON RIED CURIISL ER CONRERUP See IMATE

25

26

is an underlying corrupt agreement to accept a bribe,

which is subject to criminal sanctions whether the

speech is actually made or not. See Regina v. Bunt-

ing, 7 Ont. Rep. 524 (1885, Canada).

C. THE COURT OF APPEALS’ CONSTRUCTION OF THE SPEECH

OR DEBATE CLAUSE IS OPPOSED TO THE DESIGN OF THE

FRAMERS.

From the beginning, American political thinkers

emphasized that the right of legislative free speech

was for the benefit of the people who were being rep-

resented. This concept was embodied in a number of

early State constitutions. The Massachusetts Consti-

tution of 1780, for example, provided: “The freedom

of deliberation, speech and debate, in either house of

the legislature, is so essential to the rights of the peo-

ple, that it cannot be the foundation of any accusa-

tion or prosecution, action or complaint, in any other

court or place whatsoever” (Part The First, Art.

XXI)." (Emphasis added.)

The privilege had been incorporated in the Articles

of Confederation, (Article 5, clause 5) in essentially

the same form as it appears in the Constitution.

James Wilson, a member of the Committee of Detail

which was responsible for the insertion of the speech

or debate clause into the Constitution, explained

the provision as foliows:

221 Poore, Constitutions and Charters, 956, 959, (1878).

See for almost the same formulation, the New Hampshire Con-

stitution of 1784, Part 1 (The Bill of Rights), Article XXX,

2 Poore, supra, 1280-1283. See also Coffin v. Coffin, 4 Mass.

1, 27, 28.

SEE RAAB, ARETE WEG? SURRY Merete: cance? gee: AIR ROBO He ELEN” asin —

27

In order to enable and encourage a representa-

tive of the public to discharge his public trust

with firmness and Success, it is indispensably

necessary, that he should enjoy the fullest liberty

of speech, and that he should be protected from

the resentment of every one, however powerful,

to whom the exercise of that liberty may occasion

offence. [Emphasis added. } *

It would be a serious distortion if a provision de-

signed to promote the fulfillment of a public trust

could be used to protect a legislator in the very act

of forsaking that trust in favor of a private allegi-

ance. That such a construction of the clause offends

the design of the framers is underscored by a con-

sideration of the historical events to which they were

reacting at the time they drafted the Constitution.

In the eighteenth century, having lost the power to

limit the authority of Commons to speak and initiate

legislation, the Crown turned to more subtle methods

of control. “Votes which were no longer to be con-

trolled by fear, were purchased with gold.” * Through-

out that period, “the corruption of individual mem-

bers, by places, by pensions, and by bribery” * be-

came a way of political life. The systematic mainte-

nance of a ministerial majority by the regular pay-

ment of bribes is said to have been the “invention” of

Sir Robert Walpole, Chief Minister of the Crown dur-

** 2 Works of James Wilson 38 (Andrews ed. 1896).

*1 May, The Constitutional History of England, 300

(1889).

*°1 Anson, 331.

NSBR NINE DY READS 04 DER RRR GY SOUP 4"

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28

ing the period.” Thereafter, George III, acting as his

own minister in these matters, was reputed to have

bribed members of Commons to maintain a majority

in that House to support his policies in the Revolu-

tionary War.”

This technique of government by corruption was

greatly aided by the fact that the Commons owed no

meaningful responsibility to the people it purportedly

represented. As a consequence of the Revolution of

1649, “[t]he prerogative of the Crown had been still

further limited; the power and activity of Parliament

being proportionally increased, while no means had

yet been taken to insure its responsibility to the

people. A majority of the House of Commons—beyond

the reach of public opinion,—not accountable to its

constituencies,—and debating and voting with closed

doors,—held the political destinies of England at its

mercy.” * Seats in Commons were controlled by

a small number of powerful families, with

members responsive to their will. In this sit-

uation “when the Crown bid for votes in the

House, it was but outbidding or supplement-

ing the influence and connexions of the aristocratic

families who dominated the party affiliations of many

of the members.” *

In the middle of the eighteenth century the Crown

was able to use Commons to its own purposes in the

261 Anson, 331-340.

27 10 Holdsworth, History of English Law, 104-105 (1938).

*°1 May, The Constitutional History of England, 300

(1889).

29 Chrimes, 171; 1 Anson, 343.

29

celebrated case of John Wilkes. After being thwarted

by Wilkes’ successful assertion of parliamentary

privilege in its attempt to prosecute him for the pub-

lication of a paper labelling false certain statements

made by George III, the Crown turned to Parliament

for help. The “royally-controlled” Commons held the

document to be a libel and breach of privilege and

ordered it burned. The next few years saw Wilkes

repeatedly expelled from Commons in its exercise of

control over its own elections despite his repeated

election. His struggle with the Crown and Parlia-

ment lasted almost twenty years, until he gained

final victory. As one scholar has pointed out:

He had directed popular attention to the royally-

controlled House of Commons, and pointed out

its unrepresentative character, and had shown

how easily a claim of privilege might be used to

Sanction the arbitrary proceedings of ministers

and Parliament, even when a fundamental right

of the subject was concerned.”

There can be no doubt that the founders were

aware of the political corruption in England when

they adopted our Constitution. In obvious reference

to this situation, one of the framers pointedly noted

that it was “notorious, that [legislators] are more

frequently the representatives and _ instruments

of the executive magistrate, than the guardians

and advocates of the popular rights.”™ In-

deed, the framers could personally testify to

%° Wittke, 122. See also, id. at 115-120.

* The Federalist, No. 56 (Hamilton or Madison), p. 387

(Bourne ed. 1914).

30

the use in England of parliamentary _privi-

lege “as a screen for the basest oppression.” * The

Wilkes affair was fresh in their minds ™ as were the

machinations of George III in bending Commons to

his will in the Revolutionary War by financial and

other inducements. In the face of this immediate

history, one can hardly infer that when the framers

embodied in our Constitution the right of legislative

free speech and debate, they conceived of it as ren-

dering Congress impotent to provide for judicial

prosecution of members of Congress for bribery.”

The framers, deeply opposed to Parliament’s disre-

gard for public sentiment, sought to establish a Con-

gress responsive to the will of its constituents. It

would have been contrary to this design to protect

legislative bribe-taking from criminal sanctions. Free

speech or debate was not to be questioned, but

breaches of public trust, such as were common in

eighteenth century England, were surely never

thought to be privileged.

82 Wittke, 15.

**As James Madison’s biographer rhetorically inquired

“What American newspaper of the day ever failed to carry

his name?” 1 Brant, James Madison The Virginia Revolution-

ist, 136 (1941).

It is interesting to note in this connection that the very

same provision of the Constitution which granted freedom of

legislative speech (Article 1, Section 6) also provided that

“no Person holding any Office under the United States, shall

be a Member of either House during his Continuance in Of-

fice.”” It has been suggested that this provision was the fore-

run. . of modern day conflict-of-interest statutes. See United

States v. Brown, No, 399, O.T. 1964, slip op. 1, 6, (dissenting

opinion).

31

II.

ARTICLE I, SECTION 5, OF THE CONSTITUTION DOES

NOT RESTRICT THE POWER OF CONGRESS TO PRO-

VIDE FOR JUDICIAL PUNISHMENT OF A MEMBER

WHO TAKES A BRIBE

Arguably, the court of appeals may have based its

opinion in part on the view that “the Constitution has

clothed the House of which [respondent] is a mem-

ber with the sole authority to try him” ® (R. 308).

In so stating, the court referred to that part of

Article I, Section 5, which reads:

Each House may determine the Rules of its Pro-

ceedings, punish its Members for disorderly Be-

haviour, and, with the Concurrence of two thirds,

expel a Member.

Any suggestion that this grant of intramural au-

thority carries with it a limitation on judicial power

to punish Congressmen for bribe-taking is unsound.

Moreover, it has already been flatly rejected by this

Court.

1. In Burton v. United States, 202 U.S. 344, this

Court affirmed the conviction of a United States

Senator for agreeing to receive and receiving com-

pensation from a private party for his services in

relation to a mail fraud proceeding pending before the

Post Office Department—a violation of Section 1782

of the Revised Statutes. It was argued that that

*° It seems to us more likely that the court below based its

decision only upon its construction of the speech or debate

clause and then observed that, as a result of that construction,

the only forum open to try respondent would be the House.

32

statute was invalid because it conflicted with Article

I, Section 5, by which “the Senate is made * * * the

sole judge of the qualifications of its members, and,

with the concurrence of two-thirds, may expel a Sena-

tor from that body” (202 U.S. at 366). In rejecting

this contention, the Court ruled that “there is no

necessary connection between the conviction of a Sena-

tor of a public offense prescribed by statute and the

authority of the Senate in the particulars named”

and that “it was never contemplated that the authori-

ty of the Senate to admit [a member] to a seat in its

body * * * or its power to expel him after being ad-

mitted, should, in any degree, limit or restrict the

authority of Congress to enact” statutes otherwise

within its competence (202 U.S. at 367).

In an analogous situation, this Court has made it

clear that a statute providing judicial sanctions for

an offense which is also punishable by the House

against which it is committed is not objectionable as

an invalid delegation of legislative authority. Thus,

while Congress has been held to have inherent author-

ity to punish a nonmember for contempt,” it may

also enact legislation (now 2 U.S.C. 192, originally

adopted in 1857)* providing for the trial of a con-

86 Anderson V. Dunn, 6 Wheat, 204. But cf. Marshall v.

Gordon, 243 U.S. 521, 543-544 (dictum).

7 Interestingly, this legislation was directly prompted by

the refusal of a newspaperman to divulge to the House of

Representatives the names of those Congressmen who he had

claimed in the press were soliciting bribes on matters pend-

ing in the House. See Watkins v. United States, 354 U.S. 178,

207-208, n. 45.

.

tumacious witness in a court of law. In re Chap-

man, 166 U.S. 661, 671-672; Jurney v. MacCracken,

294 U.S. 125, 151-152. The same principle applies

here. Congress may punish its own members for cor-

rupt practices * and may also make such behavior a

crime triable in the courts.

2. As we have noted (supra pp. 7-8, 13-14), Con-

gress has never viewed its disciplinary power as exclu-

sive. Indeed it is by no means clear that even the Eng-

lish Parliament, which had immensely expanded its

power to punish for offenses to its prerogatives by the

eighteenth century, had succeeded in obtaining the

exclusive right to try members accused of taking

bribes in connection with their official duties.” But

33

** In re Chapman, 166 U.S. 661, involved a Senate investi-

gation into charges that some Senators had been speculating

in sugar stocks during the consideration of a tariff bill. The

Court held this investigation within the purview of Article

I, Section 5 (id. at 669-670).

*° There is no doubt that Parliament itself punished its own

members who took bribes. However, one English historian

(whose treatise was cited by this Court in discussing the

legislative privilege from arrest, Williamson v. United States,

207 U.S. 425, 442) has written—albeit without the citation of

direct authority—that a member of Parliament “who is

found guilty of bribery forfeits his seat, and is ineligible for

that parliament, besides being liable to prosecution in the

Same manner as bribed voters and persons corrupting them

* * *” Bowyer, Constitutional Law of England, 90 (2d ed.

1846). Apparently, Bowyer’s view stemmed from the ruling of

Lord Mansfield in Rex v. Pitt, 3 Burr. 1335 (1767) that brib-

ery at election of members of Parliament was always a crime

punishable at common law. This ruling has also been relied

upon by later Commonwealth cases for the proposition that

a legislator was subject to common law punishment for tak-

34

even if Parliament’s disciplinary power were ex-

clusive, it is clear that the framers did not intend

to vest Congress with the sole authority in this area.”

To the contrary, the broad scope of Parliament’s

power in the middle of the eighteenth century, which

had resulted in flagrant abuses,” and which was emu-

ing a bribe in connection with his official duties. See Rex v.

Boston, 33 C.L.R. 386 (1928, Australia); Regina v. White,

13 S.C.R. 322 (1875, N.S.W.); Regina v. Bunting, 7 Ont.

Rept. 524 (1885, Canada).

“© That there is no historical link between Congress’ disci-

plinary power and the lex parliamenti, the disciplinary

power of the eighteenth century Parliament, was noted by this

Court in Anderson v. Dunn, 6 Wheat. 204, 2388:

The truth is, that the exercise of the powers given

[Congress] over their own members, was of such a deli-

cate nature, that a constitutional provision became neces-

sary to assert or communicate it. Constituted, as that

body is, of the delegates of confederated states, some such

provision was necessary to guard against their mutual

jealousy, since every proceeding against a representative

would indirectly affect the honor or interests of the state

which sent him.

“' By the eighteenth century, Commons “could take cogni-

zance of almost any offense under the lex parliamenti, punish

it as a breach of privilege, and thus invade the field of juris-

diction that rightly belonged to the judges of the lex terrae”

(Wittke, 200). From its basic privilege that its membe

were free from civil arrest or molestation, Commons ee

fully asserted the power to punish trespass on the estates of

members, theft of their goods or those of their servants and

the arrest of their servants. Correspondingly, members of

Commons and their servants were declared to be outside the

reach of the common law courts during the time that Parlia-

ment was sitting. This led to the sale of “protections”, issued

under the seal of particular members, stating in effect that

named persons were servants of the member and should be

lated, with similar results, in many of the Colonial

Assemblies,” was viewed with suspicion by the fram-

ers. Their writings repeatedly expressed fear of

legislative excess, Madison pointed out that “[t]}he

legislative department is everywhere extending the

Sphere of its activity, and drawing all power into its

impetuous vortex.” It was not enough, he thought,

for the Constitution “to mark, with precision, the

boundaries” of the various departments of govern-

ment; additionally, he believed that obstacles had to

be erected against the possible abuse of power by a

legislative assembly. For “in a representative repub-

lic, * * * where the legislative power is exercised by

an assembly, which is inspired, by a supposed influ-

ence over the people, with an intrepid confidence in

its own strength: which is sufficiently numerous to

feel all the passions which actuate a multitude, yet

not so numerous as to be incapable of pursuing the

35

free from arrest, imprisonment and molestation during the

term of Parliament. In addition, Commons not only asserted

leges were”, what “new privileges were occasioned”, and

“what conduct constituted a breach of privilege.”

“See Clarke, Parliamentary Privilege in the American

Colonies (1943) particularly at 15-22, 29-58, 72, 103-109, 117,

123-124, 127-180. See also Potts, Power of Legislative Bodies

to Punish for Contempt, 74 U. Pa. L. Rev. 691, 780 (1926).

36

objects of its passions, by means which reason pre-

scribes; it is against the enterprising ambition of this

department that the people ought to indulge all their

jealousy and exhaust all their precautions.” ** In

the same vein, Jefferson wrote to Madison in 1789

that “[{t]he tyranny of the legislatures is the most

formidable dread at present, and will be so for long

years.” “*

In light of this background, one cannot read into

Article I, Section 5 an intention to define a legisla-

tive power so sweeping as to preclude judicial inves-

tigation of charges of official corruption against mem-

bers of Congress.

3. Sound considerations of policy support the same

conclusion. In the first place, legislative machinery

is not well suited to resolving the sensitive issue of

individual wrongdoing. The 1857 statute dealing

with contumacious witnesses was adopted in part “to

avoid the procedural difficulties” inherent in legislative

trial.* Moreover, the initiation, as well as the out-

come, of a legislative trial is apt to be governed by

political factors extraneous to the dictates of justice

48 The Federalist, No. 48, pp. 338-340 (Bourne ed. 1914). See

also The Federalist, Nos. 49, 56, 73; United States v. Brown,

No. 399, O.T. 1964, slip op. 5-7.

Quoted in Tenney v. Brandhove, 341 U.S. 367, 375, n. 4.

45 Of course, an even more important reason was “to permit

the imprisonment of a contemnor beyond the expiration of

the current session of Congress.” United States v. Bryan, 339

~U.S. 323, 327; Watkins v. United States, 354 U.S. 178, 207,

n. 45; Jurney V. MacCracken, 294 U.S. 125, 151.

in the particular case. As one commentator has re-

cently pointed out, “Congress itself has been notori-

ously slow and exceedingly reluctant to apply its own

palliatives to situations of legislative slander. In the

entire course of this country’s existence only eighteen

attempts were made by Congress to purge itself of

what Congress considered ‘unhealthy’ elements,” «

A judicial trial, by comparison, offers greater pro-

tection to the interests of the public and of the Con-

gressmen involved. The criminal penalty places a

Congressman’s conduct under inquiry only if a grand

jury determines that there is probable cause to believe

that he has betrayed the public trust. It gives the

accused legislator the benefits of all the constitutional

guarantees applicable in the trial of criminal cases,

and it provides an impartial tribunal to protect an

unpopular Congressman from a politically motivated

legislative forum. Moreover, statutes making legis-

lators triable in the court for breaches of their trust

help to eliminate suspicions that a legislator’s acts are

corruptly motivated and promote public confidence in

the integrity of Congress.

37

** See the report of the Senate committee appointed to in-

vestigate the case of Senator John Smith, charged with com-

plicity in the Aaron Burr conspiracy. Sen. Doc. No. 278, 53d

Cong., 2d Sess., pp. 23-25.

** Oppenheim, Congressional Free Speech, 8 Loyola L. Rev.

1, 27 (1955-1956) ; see also Yankwich, The Immunity of Con-

gressional Speech—Its Origin, Meaning and Scope, 99 U. Pa.

L. Rev. 960, 972-973 (1951).

ms a oo. a

For the foregoing reasons, it is respectfully sub-

mitted that the judgment of the court of appeals

should be vacated and the judgment of conviction re-

instated on all counts.

88

CONCLUSION

RALPH S. SPRITZER,

Acting Solicitor General.

FRED M. VINSON, JR.,

Assistant Attorney General.

JEROME I. CHAPMAN,

Assistant to the Solicitor General.

BEATRICE ROSENBERG,

JEROME M. FEIT,

Attorneys.

AuGusT 1965

ov. 8. GOVERNMENT PRINTING OFFICE, 1965 784033 3