Motion to Dismiss or Affirm — United States v. Brewster

Supreme Court brief1972

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QIN THE

| Supreme Court. ae the, United States

“ OCTOBER TERM, 1970

et.

Na sam 7 70- ys

UNITED STATES OF AMERICA.

. Do Vv.

| DANIEL’ B. BREWSTER, °

“ ¢

THE District ¢ OF. CoLu MBIA

{

_ MOTION .TO-DISMISS OR AFFIRM .

. Norman P. Ramsey.

THomas W AXTER, Jr.

H. THomas Howe, a

10 Light Streef — 17th Mieco

Baltimore, Md. 21202.

Attofney s for Appellee,

Appellant,

‘Appellee.

ON APPEAL FROM THE UNITED STavEs District Court FOR

——

ie Daily mcroed Co., Balt timore, Md, .

2121 Re

s ; fe: O°

+ "-TaBLe oF ConTENTS —

_ . Se PAGE

‘ STATEMENT | ee es bere oerete 2

* QUESTIONS PRESENTED ee ee eee

ARGUMENT: | ee? a,

I. The Criminal Appeals Act, 18 U.S:°C. $3731, .

does not confer jurisdiction over this direct ;

_“eriminal appeal. .:- . a ee

A. ‘The decision below was‘not based upon the -

invalidity, or constructidn of. the statute

upon which ‘the indictment was founded ~ 6

B. The decision below was not one sustaining

| a motion in bar | — wee ang § 8

'. I, The question sought to be presented on this

.direct ‘appeal is beyond the scope of this - .

Court's -review . pps aes F a2.

III. The question sought tobe presented on this =

_ direct appeal was not expressly passed on be-

low and is not ripe for review by* this Court ke

'- IV. The decision below raises no substantial ques-

"tion net previously decided by this Court’ . 15.

- V. The question sought to be presented on this ap-

peal is so insubstantial as not to need further

argument ._ tal Bosse Passharcoseboheape wen OE

CONCLUSION — . eek ne 25

¢e . ’ : . ad ‘ ed

APPENDIX E vot v2

TABLE OF CrfATIONS

_~ Cases

Ashwander v. Tennessee, Valley Authority, 297 US. |

288 (1936) . oe

Carroll v. United States, 354 U.S. 394 (1957) 5, 8: 9,10. 12

Coffin v. Coffin, 4 Mass. 1°( 1808) . ". 19-20.

Dombrowski v. Eastland: 387 U.S. 82 (1967) 7, 18, 21

14.

United States v. Shirey, 359 U.S. 255 (1959)

Me 2 a PAGE, *

__. Kilbourn v. Thompson, 103 U:S. 168 (1880) 16,20

_ Moore v- Mississippi, 21 Wall. 636 ( 1875) “u

_ Parks v. United States, 355 F. 2d 167 (5th Cir. 1965) —-,,24

Powell. McCormack, 395 U.S. 486,(1969) . .7, 17-19, 21

_. Sorrells v. “United States, 287 U.S.:435 (1932) - o> 3

State v. kindenw154 La. 65 (1923) | 1]

Tenney v. Brandhove, 341 U.S. 367 (1951). 16, 20,25

- - # United Public Workers of América v. ‘Mitchell, 330 2

~ US. 74. (1947) 14

United States v. Blue, 384 U.S. 251. (1966) : 9

United States v. Borden, 308 U.S) 18811939). | 6, 8,13

_ United States v. Carter, 231 U.S. 492 (1913) 8.14

~ United States v. Ceok, 17 Wall. 168 (1872) 10

‘United States v. Covington, 395 U.S. 57 (1969) — 9 .

, United States v. Fabrizio. 385° U.S. 263 (1966 —«™~j

\Utlited States v. Feuehauf, 365 U.S..146 11961) 114-15

United States v. Glazer, _ F. Supp. 269 - Del.

: 1653).

United States v. Guest. 383 US. 745 11966) \ 6

__ United States v. Halsey, Stuart, 296 U.S. 451 (1935) 1

United States v,, Hark,-320 U.S. 53] +1944) 6.9

United States v. Hastings, 296 U.S. 188 (1935) 8

United States v.. Johnson, 383 US. 169 (1966) 3,7, 11-13,

1 De 14, 15-23.

United States v. Keitel, 211 US S 370 (1908) 1B

United States v. Kemmel. 188 F. pune: 736 { M.D. Pa.

1860) | 4

United States v. Kissel. 218 USS. 370, (1910) “13

United States. K Laub, 385 U-S. 475 41967) 6

U nited States v.. Mason, 213 U.S. ‘115 11909) 13

United States v. Mersky: 361 U.S.'481. (1960) 9.10

‘United States v. Murdock. 284 U.S. 141 (1931) 9.11

United Statesv. Petrillo, 332 U.S. 1 (1947) 6

re 2

PD aie SSN —_—

ili

: oo : PAGE >

United States v. Sisson, 399 U:S. 267.(1970} 5-6, 8, 9-12.

United States. v- Spector, 343 U.S’ 169 (1952) ie Fe

- United States v. Storrs, 272 U.S. 652 (1926, ° oo 10 a

- , United States v. Weller, No. 77, this Term. — 5,10, 12, 25

~ Wason, Ex parte, 4 Q.B. 573 (1869): So 19

Wajl v. United States, 389 U.S. $0 (1967) - og

Wilson v. United States, 230 F. 2d 521-( 4th Cir. ), cert.

denied 351 U.S. o31 ( 1956 ) 24

ay "+ Constitution and Statutes

United. States Constitution: | | oe,

Article I, Section Bo. os 2'4,.6,7, 9, 1-12.

| | 13, 15-22

Fifth. donendinent: ee, > 9

Criminal Appeals Act, 18 U.S.C. $3731. - 4 4.6 8-12, 13,

: | 14,15.

Federal Bribery Statute, 18 U.S.C. 201 2,4, 6, 12, 13-14,

ooo | _ 18, 21-25 a

18 U.S.C.-$203 tage so erinnullteenigsd 4 2B gg ou ot

a oer Miscellaneous | | 7

Stern & Gressman, ‘Supreme Court Papence (4th ed. ° .

1968) OnE cise Sseenty * + 13

Note, The Bribed Congressman’s Immunity From » -

| Prosecution, 75 YALE LJ. 335 | 1965) ; _ 22-23

House, Rep. 748, Comm. on the Judiciary, 87th Cong.,

, Ast Session. |. cette. 25

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In THe

Supreme Court of the United States.»

" Ocroner Ternz, 1970

No. 1025

UNITED STATES ‘OF AMERICA,- | pe oe

< ear a

Ve =

DANIEL ‘+ BREWSTER, . c

.' a Appellee.

: y ,

yA ,

. ON. APPEAL FROM THE UNITED STATES. DISTRICT Courr FOR

THe DISTRICT OF Corumpra

_ MOTION TO DISMISS _ OR AFFIRM

The Appellee moves the Court to dientics: the appeal

herein or, in the alternative, to affirm without further argu-

ment. the judgment of the United States District Court for

the District of Columbia-on the followi ing grounds:

1.*The Criminal Appeals Act, 18° U.S.C. $3731, does not

confer jurisdiction over this direct criminal appeal.

2: The question sought to be presented on this dirgct.

“epee is beyond the scope of this Court’ 's review. | | -

3. The question sought to be preserited on this direct

appeal was not expressly passed on below and iS not ripe

for review by this Court. | ‘ . fe:

® |

“ .

4.. The decision ‘below raises no substantial question not”

previously decided: by this Court. .

a. The question sought to be presented on n this appeal | is.

SO infsubsiantial as not’ to need further argument.

STATEMENT a

Because the Government mistakenly characterizes the |

decision below as one. “based upon, the invalidity of the’

statute upon which the indictment is founded,”-:the sum-..

mary of the case set forth in its Jurisdictional Statement

requires some amplification.

On October 9,.1970, the "ie States District Court ioe

the District of Columbia orally: dismissed certain, counts.

of an indictment charging appéllee, a former United States

: Senator, with soliciting and receiving bribes from Cyrus

. T: Anderson, a lobbying: -yepresentative of Spiegel, Inc., a:

large’ mail order compamy, in violation of 18 U.S.C. §201

(c)(1).and $2011 g). The essence of, the charges was that . .

appellee, during his tenure as,a. Senator, accepted bribes

- in return fog influence in the performance of official acts

as a Senator and as a member of the Senafe- Committee

- on the ‘Post Office and Civ il Service with regard to his .

action, vote, and decision on postal Tegislation ( Jurisdic-

tional Statement pp. I; 2). ce ee :

‘Th his motion to dismiss: appellee invoked his “claim of

legislative immunity ‘under the Speech or Debate Clause"

of the Constitution ( Article I, Section 6). 1

Appellee > motion also asserted that: the. indicéme ‘nt improperly

and inconsistemly ch: irged him as being an aider and abettor of hin-

self; that the charges were ene a lly vague ; » thats the under- | *

lying statutory provisions, 18 U.S.C. $201 (¢ 1) and § S201 (¢), were.

unconstitutionally vague and cont: ‘ined 10 agcertaifiable. standard.

Although the District Court did not pass upon any of these conten-

tidns, appellee respectfully reserves the right .to brief and argue the .

same. in 1 the event probable jurisdiction is “noted.

® he * + a

Pri ior to the hearing and during argiment on the motion,

the Gover nment represented that its case depended upon

inquiry into the appellee's voting record and committee’ |

activities, and disclaimed having any proof of illegal con--

duct. not directly related to such legislative acis. The Dis- :

trict Court, “in “colloquy with | Government’ counsel, ex- |

pressed the opinion that: the Speech: or Debate Clause pre-

‘cluded judicial | inquiry into. the motivations _underlying:

legislative activities, . either. in prosecution . of -a Senator

“aecused of improper | ‘motives™ cr otherwise - Appendix: E,

infra at spp, 27-30). Ne 2? 4 | i

Contrary to the’ Government's position on ‘this appeal,

nothing decided below eonstrues‘ct invalidates any statute.

The District Court plainty_held, under the admitted cir-

_ cumstances of thi. case-and in line with United States ve

Johnson, 383 U.S. 169° (1966), that the Speech or Debate

Clause - provided the appellee. with a coniplete defense ‘to

charges arising cut of his leg sislative acts as a Senator:

“Gentlemen, based on. the. facts of this case, it is ad-:

mittéd by the Government’ that the five counts of: the

indictmént which charge Senator Brewster relate to

the acceptance of bribes.in connection with the per-

fprmance of 4 legislative fynction by a Senator of the

United States. : .

“It is the épitiion ‘of this Couft that the immunity.

under the *Speech and Debate Clause of the Constitu- .

tion, particularly’in view of the _inter’pretation given

_ that Clause by the Supreme Court in John son, shields

- Senater Brewster. constitutionally shields him from

any prosecution. for ‘alleged bribery to perform a ‘leg-

islative. act.

“Twill, therefore: dismiss the odd counts of. the in-.

sdictment 1,3, 5. 7. and 9, as they apply to Senator * .

Brewster. * * *°) ‘italies added); appenees A, Juris- -

dictional Statement.

”

- gf

‘The order of dismissal eftered on Niivennien 3, 1970 (Ap

» pendix B,J urisdictional Stdtement) is based squarely upon °

' the reasons’ stated in this te se —, rather thari a: a:

‘construction of 18 U: S. C. $201.

Che November 4, 1970, the Govectnnes jisload its* direct.

appeal to this: Court (Appendix C,° Jurisdictional State-:

ment) under the Criminal Appeals Act, 18 U.S.C. $3731,

on ‘the assumption that the decision - below ° was “based

, upon the invalidity of the statute upon which’ the indict-.

alternative theory of” jurisdiction’ the Government sug-

~ gested that such decision: be viewed as: the granting of “a:

motion in bar.” Id. ». 3.0.2;

wee QUESTIONS PRESENTED -”

Only two questions are properly before this Gourt:

Whether the Criminal Appeals Act, 18 U.S.C. $3731, con-,

fers jurisdiction over this direct criminal appeal. |

Whether the District Court erred in holding the Speech

"or Debate Clause to constitute a complete defense to a

prosecution arising out of a Senator’s pertormange of. leg- °

a ‘islative acts. ss ; ;

On. behalf: of the appellee. it ‘is respectfully vibe

that both ee. should: be answered in the negative. |

‘o

ee ~ ARGUMENT

eo ay rs eae * ;

= THE CRIMINAL APPEALS ACT, 18 U.S.C. §3731, ‘DOES NOT -

ee ‘CONFER JURISDICTION OVER THIS DIRECT

Lae CRIMINAL APPEAL.

The. ‘Jurisdictional Statement raises =— but does not an-

-swer — serious, questions as to jurisdiction over this direct :

7 criminal appeal.. Such “appeals by : the Government. in”

» G

- ment is founded.” Jurisdictional Statement, p. 2. As an |

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criminal casés are something unusual, yexceptional; ‘not

favored. sf Carroll v. United States, 354. US. 394, .400 (1957): |

see United States v. Sisson,: 399 US. 267, 291 (19705, jand ec

"authorities cited therein. In view of. the difficulties sore:. “%..

mired encountered, in Sisson and posed again this month

United States v. Weller, No. 77; this Term, argued De-

cember | 10, 1970, a: two-serttence. passing reference is in-

: adequate treatment of the Jurisdictional obstacles. .

te ‘Here the Government invokes two separate Provisions: -

- of the Criminal Appeals Act: as follows: es * oe a)

“An appeal may be takén by ands on behalf, of the oe

_ United States from the. district courts direct to ‘the. °

: Supreme Court-of the United States in. all epreama: | ae

_ cases in the follawing ivistances: - i ; ie ae

“From a deciSion or. judgment setting aside, or. dis- _

“missing any indictment or information, or any count .

- thereof, where such decision or judgment i is based upon *

the invalidity orsconstruction of the statute upon which -

the indictment or information is fgunded. * * *° ..

: - “From the decision or judgment: sustaining a motion...”

_in bar, When the defendant has not. been aed in. Je0p-

anf * * ‘2 |

: a The. Criminal ese teats Act kos alive the “plegilivig’ dis-

_ tinetions that existed at common law” between demurrer -

~ “and special’ plea in bar. Unjted States v. Sisson, 399 U.S.

' «267, 307 (1970); see Carroll vy. United-States, 354 U.S.’ 394, ° .

399-406 (1957). ° Jurisdiction must be: found under one 9° .

he category or the other, for “the exceptional right of appeal ff

, given to the Gov nment by, the Criminal Appeals Act is: —

strictly limited - the instances. specified.’ ” United States

_ .v. Borden\309’U.S. 188, 192 1939). See.’ Briited. States y.

Sisson, supra at 291. ‘The Government's attempt here to -

straddle two separate and distinct categories is itself indi-

' . Cative of insecure jurisdictional sas under either.

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A. The iecision below was not based upon the invalidity .

_or construction of the statute Upon, which the ‘indictment

was founded. The District. Court: dismissed the indictment, °

but it does not follow that its decision was “based upon _ °

the invalidity or construction of the statute upon Ww hich: -

the indictment or information is founded.” 18 U.S.C. $3731. -|-

_ The label ‘attached to the decision is not determinative of .

this Court’ S jurisdiction. United States v. Sisson, 399 U.S.

-267, , 279 in. 7.11970). The real test is “the effect of the’

nm ing sought to be-reviewed.” Ibid: United States,v>Hark,

WS..531, 536711944). fe) 6 nm

‘The decision _below did not have the effect of sustain-

ing a demurrer upon the construction or invalidity. of 18

USC. $201. Unlike United :States v. Spector, 343°U.S. 169!

° (1952), and United States v. Petrillo, 332 U.S.-1 +1947),

" the oniy cases Cited in the Jurisdictional Statement gn this

a _ point, the District Court did not pass on the: ‘validity of

the underlying stafute, much less declare it to be unconsti- .

tutionally, vague and indefinite. This is -manifestly not ‘a |

case in which the indictment was held ‘pad: as a sea

* see United States v. Borden, *308 U.S. 188, 193 (1939), 0

” dismissed for failure to charge an offense: Compare, e. g.,

United States v. ‘Fabrizio, 385 US: 263 (1966 +; United

States v. Guest, 383 U.S. 745 11966)..Nor doés the opinion

below. eontain any discussion of 18 U.S.C. $201: or under

take to construe its prov, isions. Compare, e. 8. United States

. Laub, a US. 475 (1967).

As. we see ‘it, the: District Court’ avoided questions

of construction or invalidity by finding, on’ the basis. of -

awidisputed facts, that the appellee’ Ss “immunity under the -

+—-~#-"" .- Sneech and Debate Clause * * * constitutionally shields |

him from any Pos non for alleged bribery to perform

a legislative act.~ Appendix A, Jurisdictional Statement.

It s seems obvious that the District Court properly viewed

Py s ¢

the protection secured by that Clause as a matter of de-

fense, as did this Court in United States v. Johnson, 383

U.S. 169 (19665, when it spoke repeatedly of the “legis&-

tive priv ilege™ so afforded. Id. W8- 181. Later decisions re-

- inforce this defensive aspect. The Clause: has been de-

scribed‘as the source of “legislative immunity”. providing

its. beneficiaries with “a defense on the merits” and pro-

tecting them “from the burden of defending themselves.’

Powell v. McCormack. 395 U.S. 486, 502-503. 5035 (1969):

Dombrowski v. Eastland, 387 U.S.'82. 85, (1967). The. By

trict Court's concept of the Clause as a “constétutiona

shield”, available to this appellee on the facts, - - plainly

eliminated from this case any necessity for a construction

of the’ underlying statute. ;

’ On this appeal the Gov ernment seeks to argue, as it did

“below, that the indictment “as “founded -upon a narrowly

drawn statute passed by Congress in. the exercise of its

legislative: power to regulate the condiet of its members.”

Jurisdictional Statement. p. °5, -quoting«dicta in United

States “vs Johnson, 383 U.S. 169, 185 (1966). - It contends

Here, as it did below, that 18°U.S.C. $201 is “narrowly

drawn” and Within the-power of Congr ess to enact. An

excursion into legislative history is suggested.

~ What the Government ov erlooks is that this Court “re-.

views judgments, not arguments assailing them.” United’

States. v. Shirey, 359 U.S. 255, 261 n. 5 (1959), Certainly

the District Court entertained constitutional challenges to

$201 and would have been justified, we submit, in declar-

- ing that statute void on its face or as applied. The fact

remains, however, that the decision actually. render ed was

not addressed te the statute as such. To assume or infer

that the District’ Court. construed or int validated $201: is .

not enough. There must be “an expression of opinion in

some form.as ,to manifest ‘clearly’ w hether its. act - pro-

ceeded upon a construction .of the statute” before this .

Ga.

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Court may assume jurisdiction. ‘United States v. Carter,

(231-U.S. 492, 494-495 (1913). A direct appeal will not lie a

Where the District Court has. considered the construction.

-of the statute but has rested its decision on some other

ground. United States v:"Borden, 308 U.S. 188. 193 (1939).

- Jurisdiction is limited to,those cases where the dismissal

‘is based solely upon invalidity or construction of eae un-

derlying statute. United States t. Hastings, 296 U.S. 188,

194 (1935). For this Court to’so characterize the pa ,

“below srequires-a straining that is not permissible in the

light of the principles and history concerning criminal ap-

peals” under 18 U.S.C>$3731. Carroll v. Cite’ States, 334 |

"U.S. 394,405 (1957). ~ a

o, ° i. a

B. The decision below was not one sustaining a motion

in bar. In thé alternative. and without much vigor, the

Government suggests in a footnote that. thig Court w ould

have jurisdiction under 18 U.S.C. <3731 “if the District

Court's action is viewed .as the granting of a ‘motion in

bar’.”’ Jurisdictional Statement, p. 3, n.2. The point is not -

pressed any further. We submit that this appeal does not —

involve a° ‘motion in bar’, particularly in view of thesnar-

row technical meaning associated with fhat term, although

the mattersis not completely free from doubt. “The case

law under the motion in bar provision is very confused,

_and this Court has.not settled on a general approach to be

-+taken ,in interpreting this provision.” United States v.

“Sisson, 399 U.S..267,,300 11970).

The confusion is a result of disagreement over the pre-

cise scope of tht statutory term, “motion in: bar”. There

appear to be two competing’ schools of thought. ‘It has:

been said. on one hand, that modern ‘procedural changes.

have ° ‘swept away the old pleas” including the «special

piea incbar, and that the test, of motion-in- -bar jurisdiction

is ‘whether the judgment is one w hich will end the cause

- and exculpate the defendant.” United’ States v. Mersky,

361 U.S. 431, 441-442 (1960) ‘Brennan, J.. concurring):

United States v. Hark, 320 U.S. 531, 536 (.1944). ‘See also

United States v. Sisson, 399 U.S. 267, 326- 346 (1970)

(White, J. , dissenting United States v. Blue, 384 U.S. 25],

254 (1966). Guided by this broad view, the: Court has:

_ permitted the motion-in-bar provision: td reach pleas of

constitutional -privilége. United States-v. Covington. 395

U.S. 57, 39 n. 2 (19691; United States v. Blue. supra at 233-. '

254: United States v. Murdock, 284 U.S. 141 (1931).. These

cases » deal with pre-trial assertions of the Fifth Amend-

ment privilege against self-incrimination, ‘and it might be’

argued | that their rationale also-embr aces claims of “‘legis- :

lative pr ivilege” under the Speech or Debate Clause. The:

analogy is not'warranted. we submit. Confusion enshrouds'

the motion-in-bar prov ision, this Court*observed recently,

"and Fifth Amendment cases like cee ington and Blue Serve

wnly “to add to the uncertainty’, especially if a constitu-

“tional |pr ivilege “is not appropriately ‘raised by, a special

plea a bar.” United States-v. Sisson, 399 US. ae 300

n..33 1970).

That the motion-in-bar prov! ision should not be expanded |

to cover a claim of: legislative privilege is suggested by.

“ States v. Sisson. supra. which heralds a return to

ce. fundamental concept “that the Criminal Appeals Act

should’ be construed strictly against the Governmeni’s

right of appeal.” Id. 286: see Will v. United States, 389 U.S.

- 90. 96-97 (1967): United States v. Mersky. 361 U.S. 431, 454

(1960) (Stewart, J.. dissenting): Carroll v. United States.

334 U.S . 394, 399-400 (1957 le Sisson isa reminder that

Congress defined jyr isdiction in terms of procedur es exist-

ing in 1907, when it first enacted the Cr iminal Appeals

‘Act, leaving no room no this.Court “to give the: statutory

language a meaning inconsistent with its;common law an-

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tecedents, ” United States v. Sisson, supra ak 297. Because

the 1943° amendment to the Act w orked no substantive

changes by translating the old ‘ ‘special plea in bar”. into

the contemporary “motion in bar,” id, 292 n. 22, the former

_ term # necessarily restricted to its narrow common law

connotation. Td. 360 a. 53. and compare dissenting opinion,

id. 330 n. 5: See United States v. Mersky. supra;at 456-458

(Stewart, J., dissenting): Carroll v. United States, 354 U.S.

394. 399, 405 11957); United States v. Halsey. Stuart, 296 ©

USS.. 491. 452 (1935).°As Mr. Justice Holmes remarked

in United States v. Storrs, 272.U.S. 652, 654 (1926), the

‘Criminal Appeals Act “uses technical words, ‘special plea

-in bar’ and we see no reason for not fpaniny them im their

technical sense.’ .

. ¢ .

“The Solicitor General, in a case argued. and pending de-

cision by the Court, likewise takes the: position .that, the

“scope of the motion-in-bar provision is jimited solely to

the common law concept of a special plea in bar. See Br ief

ee United States: pp. 14-15. United States v. Weller. N

. this Term. Upon reflection, that position seems ao

inconsistent w ith the Gover riment’ S approach to this appeal. |

At common law, a special plea in bar was ‘ardinarily

used to raise three defenses -- autrefois aquit, autre fois

- convict, and pardon. United States v. Sisson, 399 U.S. 267,

300 n. 53 (1970); United States e. Mersky- 361 USS. 431. bi

(1960! (Stewart, J., dissenting).” and authorities cited -

therein. To these may be added the defense of limitations. |

United. States v. Cook, 17 Wall. 168, 179 11872). Special

pleas were thus strictly reserved fof (1) matters of con

féssion and avoidance which ‘2) occurred after the events,

charged in the indictment and (3) not admissible under

the general issue. Conversely. a special plea which met only

oO: qd:

part of the indictnient was bad. Moore v. Mississippi, 21

Wall: 6367 639 (1875). So was a special plea raising matter

“contemporaneous with the offense charged. See, e.g., Sor-_

‘rells v. United States, 287 U.S. 435, 452 (1932) ‘entrap-

ment! ;'Stateé v. Linden, 154 La. 65, 97 So. 299 (1923) (self-

- defense). It was also considered improper for a special

- plea to. set wp a defense admissible under the plea of not ‘

guilty. United States v. Murdock, 284 U.S. 141, 150 (1931).

“A special plea in bar -is appropriate where defendant

claims former acquittal. -former ‘conviction or pardon but

‘there is no warrant for its Use to single out for determina-

tion in advance of trial matters of défense either on ques-:

tions of law or fact.” Id. 151 ‘citations omitted ).

Judged: by these technical common law standards: we

submit that a defense under the Speech or Debate Clause

is not the functional equiv alent of a Special plea in bar.

The element of confession and avoidance is lacking. The

defense is founded upon legislative: acts which were con-

temporaneous. with the events: alleged in the indictment,

not subsequent developments as in the case of former jeop-

ardy. pardon, limitations, and the like. Most significant

is that the Clause does not inevitably bar indictment and

trial in every casé in which it is asserted. Prosecution of

a legislator is impermissible under the Clause only when

it attempts to “draw into question the legislative acts of

the. defendant member of Congress or his motives for p@r-

forming them.” United States v. Johnson, 383 U.S. 169, 185

(1966). Conv ersely, the Clause does not necessarily. shield

conduct “that.is-in no way aelated to the due functioning

_of the legislative process.” Id. 172. Between these ex-

_ tremes lie abundant shades of gray. ‘Whether the pro-

— tected activ ity is merely “an incidental part of the Gov-

ernment’s case”, id. 176. or Ties at its very roots are

questions of fact determinable under the plea of not guilty.

As the Johnson ‘decision halds, a _prosecution ef a Con--

_ gressman may run its normal. ‘course once. it has been,

“wholly purged of elements offensive to the Speech or, De-

‘bate Clause.” Id. 185.

If so, the Criminal Appeals Act is inapplicable because

"Ha motion in bar cannot be granted on the basis’ of facts

Which W ould. neggssarily. -be.-tried -Wwith_the..general. Agsue__

——

in_thé case.” United States v. Sisson: 399 U.S. 267, 301 —

(1970). It is truethat any trial on the general issue was

rendered unnecessary. here by the complete absence of any

dispute as to the operative facts required | for decision.

This. should not alter the basic rule, however. Jurisdiction

~ should not turn upon: the extent to which the facts are/un-

disputed or resolved by Government stipulation, ‘cf., id.

284-286, “for. this would mean the parties and the lower

court simply could foist jurisdiction upon this ‘Court. Id. —

287. “Appeal rights cannot depend on the facts of a, par-

‘ticular case.”: Carroll v: United States, 354 U.S. 394, 405

( 1957 i

‘Inasmuch as the motion-in-bar prov ision is’ being ac-

corded full treatment in United States v. Weller. No. 77,

this Term, argued December 10: 1970, we respectfully sug-

gest that consideration of the jurisdictional issues herein

a —_shguld aw ait a decision in n that appeal.

3 .

. e Se II. ,

'. THE. QUESTION SOUGHT TO BE PRESENTED ON THIS’

‘DIRECT. APPEAL IS BEYOND THE SCOPE OF

° THIS COURT’S REVIEW.

In the event that the Court finds that the decision below *

sustained a motion in bar, it should decline to. entertain

the argument advanced in the Jurisdictional Statement,

pp. 5-6, to the effect that the federal bribery statute, 18

U.S.C. $201, is “a narrowly drawn statute passed -by Con-

gress in the exercise of its legislative pow' er to regulate

the conduct of its members.” United States v. Johnson,.

_ 383 U.S..169, 185 (1966).

It is undeniable that Tohason left open the “narrowly

drawn statute” question for future consideration in a>’

proper case. But that question, entailing statutory inter-

pretation and analysis of legislative intent, is beyond the

narrows Scopé Of review permitted by the Criminal Appeals - °

- Act oe Government's appeal does not open the whole

case.” . United: States v. Borden, 308 US. 188, 193 (1939): |

‘United States, v. Keitel, 211 U.S. 370, °398 (1908). The

Criminal, Appeals Act vests “this Court with jurisdiction

only to review the particular question decided by the Cgurt.

below for which the statute provides.” United States v.

_. Keitel; supra.’ Any issue dealing with the validity or con-

~ struction of the statute underlying thefndictnient is w holly

beyond the scope of an appeal of a judgment sustaining a -

motion in bar. United States v. Kissel, 218 U.S. 601, 604

(1910); United States v. Mason, 213 U.S. 115 (1909). See

Stern & Gressman, a bh ed Court hbeiaas 43 (4th ed.

1969).

: a ae

Accordingly, this Court's jurisdiction ( assuming its exist-.

ence) extends. only to the specific question whether the |

shield of the Speech or Debate Clause precluded judicial

’ inquiry into the appellee's legislative acts. Cf.. United

_ States v. Mason, supra.

| 10 rn |

THE QUESTION. SOUGHT TO BE PaESENTED ON THIS DIRECT

APPEAL WAS NOT EXPRESSLY PASSED ON BELOW AND IS

NOT RIPE FOR REVIEW BY THIS COURT.

Even if there are no jurisdictional obstacles to full re-

_ View of the-federal bribery statute, 18 U.S.C. $201,.in: tHe

light of the * ‘harrowly drawn statute” ‘question posed in-

\ 447

United States v. Johnson. 383 U.S. 169, 185 (1966), the Court

_ should abstain from considering such issues for the reason

that they ‘vere not decided below. In essence, the Gov ern.

-ment is asking this Court in the first instance to review t! he

legislative history, construe the Siatute, and measure its

wscope and. refinements, despite any expressions. of legal |

judgment by the District Court, and then to declare whether

- OF not Congress has. the constitutional power to enact yy

statute thus construed — again without benefit of a

trict Court opinion. We cannot regard this as other an

a request for an abstract opinion upon the consti utionality

of an Beh OF Cone: See United States v. LY irter, 231 U. S.

492. cic’: (1913), /

Even ‘in cases * icnnfessealy: within its {jttrisdiction”, this .

Court will not pass upon the constitutionality of legisla-

tion unless absolutely necessary to a decision of the case

_ or unless the record presents no other ground upon which

the case may be disposed of. Ashwander v. Tennessee

‘Valley Authorityy 297 U.S. 288, 345-346 (1936) ( Brandeis,

J.. concurring ). In United. Public Workers of Americ av.

Mitchell, 330 U. S:.75, 89-90 (1947), the Court said:

“The power of courts, and ultimately of this Court

to pass upon the constitutionality of acts of Congress

arises only when the ‘interests of litigants require the

use of this judiciai authority for their protection

against actual inter ference. A hy petnenca! threat is

. not enough. .

Where jurisdiction is rigidly circumscribed by the Crimi-

nal Appeals Act, as here, it should not be exerted to an-

swer delicate questions as to the construction or validity

of Congressional enactments where such questions were

not expressly decided below and the case was properly.

posed of on some other ground. Regarding t presen.

appeal, “it: suffices to oy that instances of ne en un-|

\ ‘3 J

\ Pa+5 asin gt eee eo Ae

Ye /

clarity under the Criminal. Appeals) Act counsels the wis-

dom of abstaining from reviewing construction’ of a crimi-

nal statute on so’ cloudy ‘a record as is now- before the

Court.” Uwited States v. Fruehauf,. 365 ‘US. 146, 158

(]961).

_— _ IV. ne

- THE DECISION BELOW RAISES NO SUBSTANT IAL QUESTION

NOT PREVIOUSLY DECIDED BY THIS COURT.

On. the merits, and putting. to one side all jurisdictional |

problems, this appeal gives rise to a single question:

‘whether the Speech or Debate Clause provides a Senator

with a complete defense to a criminal ‘prosecution inquir-

ing into his votes upon pending legislatiag. .We submit that .

this question w as answered in United States v, Johnson,

"383 U.S. 169 (1966). the controlling principles of which.

were correctly applied below. Indeed. apart from tthe “nar-_

. ‘rowly drawn statute” issue, the Government points ‘out no

distinction between this case and Johnson and we believe

none can be drawn Consequently, if jurisdiction is found

to exist, the decision below should be affirmed’ ‘summarily

on. the aartionty of Johnson w vithout further briefing or

G argument.

Johnson involved a conspirator ial attempt to exert in-

fluence on the’ Department of Justice. to obtain the dis- .

missal of mail fraud indictments pending against officers

“of. a savings and loan company. As a part of the general

scheme to influence the Department, Congressman John-

son was charged with accepting payments in return for

making a speech cn the floor of the House of Representa-.

‘tives. Although the. Government did -not proceed under

the federal bribery Staiute. as it did. here,’ it sought to

prove that the payments ° ‘were made simply to ‘buy’ the.

Congressman.” -Id. 383 U.S. at 172. |

‘tive and judicial inquity.” Ibid. me '

At trial the baile: of the évidence dealt with Johnson's

~~ financial transactians Ww ith ‘other’ “conspirators , arid with.

his contacts with the Department. ‘But there Was also evi-- «|.

dence as to the speech. and his motives for giving it, thus -

‘inviting the sort of wigan Pon by the Spetch or

Debate Clause. ° _ * re ee

“The constitutional infirmity infecting this prosecu-

tion is not merely a ‘matter: of the introduction of in-

admissible ‘evidence. The attention given-to the -

speech’s substance and motivation vas not an inci-

-dental part of the Government's gase, -which might

have’ been av oided by omitting certain lines ‘of ques- |

‘tioning or exeluiding certain evidence. The conspiracy —

theory depended upon,'a showing/that the speech: was

made’'solely or primarily to sefve private interests, .

and that Johnson in making it Was not acting, in good”

faith, that is, that hé did not prepare or delivér the

- speech in the way an ordinary Congressman Prepdres

or deliv ers an ordinary speech.” Id.$A76- 177." 7

Reviewi ing “the Clause in ‘historical peispeltive. and in

. the light of .its. two prior. encounters with it~ this Court

concluded “that the legislative privilege ll ‘be read

broadly”. and will not. be destroyed bya “claim of an‘un-

w orthy; purpose, * Td. 180. ‘Thus Johnsen’ s conduct jn giv-

ing the speech, however reprehensible because motiv ated.

. by renumeration from private sources, was within . the

scope of the privilege. Ibid. The accusation that fhe speech —

“was improperly motivated * * * is "precisely what the

Speech or Debate Clause generally forecloses: from execu-’

‘

. It is true that the Court in Johnson limited its holding

to the specific facts before it, as follows:

“We hold that’ a prosecution under a general crimi-. .

~- nal statute ake upon such inquiries necessarily

- Tenney \ Brandhove e, SH US. 367 ( 1951) Kil hoe: z. Thonip-

son, 103 CU S7168 (1880). Pg —— ;

contravene’ the Speech or’ Debate Clause. We. em-

. phasize that our holding is ‘limited to prosetutions in-

volving circumstances such. as those presented in the

ease before us: Our decision does not touch a prosecu-_

‘tion whieh, though as here founded‘on a criminal stat-

ute of general application, dges hot ‘draw in question .

the iegislative acts of the defgitdant membér’ of Con-

gress or-his motives for performing them. And, with-

out intimating any view. thereon, we expressly leave

open for consideration when the’ case arises a pros- ,

“ * ecution which, though possibly entailing inquiry into

+ jlegislativer acts: or motivations, is fBunded upon a

narrowly drawn statute passed by: Congress, in the

«exercise of its. legislativ e power to regulate; the conduct

‘of its members.” Id. 184-185. -

How ever, even 1 if. Toho is consider ed a “limited hold- "

ing”, id: 186 (Warren, @.J., concurring ), the. decision. beloy © .

did not go beyond. its precepts. Although the appéllee's #

prosecution. has a different statutory ‘genebis, it: is cons:

ceptually on all fours w ‘ith Johnson. Here again, is a mem-_

ber’charged with ‘accepting alleged: payments in return fer

being influenced in the performahce of: legislative acts.

Whereas Johnson invoived a bribe- induced speech, the pres-"

ent case is grounded uponvotes in the.Senate and” in Com- ©

mittee upon pending. legislatioh. Under his plea of not

: guilty, the appellee's motives. in considering ‘such législa-

-‘tion and voting thereon’ were placed “in issue and would

have: been subjected to- judicial examination had not the

‘District Court applied the Johnson, vationale to voting ‘as *

well as speech- “making.

| On the latter pdint hove can be no daub: AS this ‘Court |

said récently, the Speech ot Debate Clause is not confined

to ‘words, spoken: in, debate. , “Committee reports,* resolu; |

- tions, and ‘the - act of voting tire” equally : covered,’ as: are,

e yn generally. done in a session of the House by one of .

4 ‘.

indicates that t

its members in relation to the business before it!” Powell

ow. McCormack, 395-U.S. 486, 502 (1969) ‘italics added |.

Nor is. this case an. appropriate vehicle for necolvi ing

Whether the federal -bribery statute, 18 U.S.C. $201, is a

“general criminal statute” or w hether it is. insbead ‘“‘a nar-

rowly drawn statute passed by Congr ess in the exercise of

its legislative. pow er to regulate the conduct of its mem. _

bers.” United States v. Johnson, 383, U.S. 169, 185 (19662. .

We ‘find no war rant in this Johnson dicta for a supposition

that Congress, by enactment of a “narrowly drawn stat-

ute”, may\carve out an exception’ to the. Speech er Debate.

“Clause-so dg to pxpose a ‘Congressmai’s voting habits ‘to

judicial scrutiny: and criminal sanctions. Johoson itself

“to prevent intin idation by the exe@ltive and > account-

ability before a possibly oa judiciary.” Id. 181. Powell

. McCormack, 395 ‘Ss. 486, 502 (1969). The very pur-

pose ‘of the priv ilege. cOyfines it to legislative’. activity.

_ Within that limitation, the § privilege should be regarded aS

"absolute, This would seem torhe the very essence of the °

_ Court’s post-Johnson’ pronouncem Qts:

“It is the purpose and office of th octrine of legisla-

‘tiv e immunity, having its roots as it ddes in the: “speech ..

and debate’ clause of the Constitution, tht legislators 7

engaged’ in the sphere of’ legitimate legis

tivity’ shoyld be. protected: not only from the’ co

5, andaves At litigation’s results*but also from the burden

of defénding .themselves.” Dombrowski v. Eastland,

387 U.S. 82, 85. (1967) ‘citations omitted).

'; “Our cases m&ke it clear thatthe legislative immunity

eated by’ the Speech or Debate Clause. performs an

of important function in representative. government. It. «.

_ “ jrisures that legislators.are free to represent the inter--

_ ests of their constituents without fear that they will

- be later called to task ini the courts for that repre-

hs ** « : . : . i "te @

— de Cs ‘.

legislative privilege w as born. of a desire *

“1g

“sentation. * Powell v. McCormack. a US. 486, 503.

| 1969 } Jitahies added |. . . oer

We fail to appreciate the need for further clar ification.

‘Moreover, the interrelation between federal. briber y.

prosecutions of Congressmen and the Speech or Debaté

Clause hardly presents a. novel question for: this Court.

Johnson itself Was a’ “speech for compensation” case, id.

383 US , at 171, in.which payments “were made simply ‘to

‘buy’ “he Congressman.”. Id. 172.2° In oral argument in

_ Johnson the Government dealt with the case in. terms of

~ Congressional power “to make it a crime triable in court

for a Congressman to take money to.make a speech.” Id. 186

-n.16. In reply to the Government contention that the Speech:

’ or Debate Clause does not cover prosecutions. founded on

“the antecedént unlawful conduct of accepting or agreeing”

to accept a bribe,” id. 182, this Court reminded the Govern-

ment that “the language of the Constitution is framed in

the broadest terms”, id. 182- 183, and quoted’ the statement

in an English case! “that the motives or intentions of 3 mem-

‘bers of either House cannot be inquired intg by erjminal |

proceedings With respect to anything they may do or. say

in the House.” Id. 183.5 No.further reminders to Perey:

ernment should be necessary here. ~ a

omen = * *.

7 Chick Judee Sobeloff, comparing the conspiracy. charge against’

Congressman. Johns mn with the tederal bribe ‘TY stitute, noted ‘the close

relation betaveen the two. United States 2 Johnson, 337 F.2d 180,

“ee. 189 (4thi. Cir. 1964), alf "1 383 US. 169 (1966). °

= ‘Ex parte IFason, 4.1. 573, 576 (1809) (Tush, qo. ‘.

To a like effect is Coffin 2. Corfin, 4 Mass. 1, 27 U1s808), wherein

the Court, similarly spoke of amt absolute privikege aie ting of ‘no

exceptions ¢ oS - “£0

‘Twill not contine it to delivering of an Opiiion, uttering a speech,

or haranguing in. debate :-But will @xtend. it -to"the giving .of a

vote. to the making ofa Written report, and to every, other act

.Tesulting from, the nature, and in the execution, of the office ;

and b would detine. the article, ‘as securing to every member ex-

emption_ from prosecution, for’ everything: Jone or said “by hun, as

: , : . e . _

‘.W ~ a ‘

The shield of a Congressman’ S voting habits from out:

side inquiry “is one ‘manifestation of the ‘practical secur-

ity’ for ‘insuring the independence of the legislature.”

United States v. Johnson, 383 U.S. 169, .179 11966). The

political precess makes it inappropriate for the judicial

and executive branches to pass upon the motives of legis-

lators. _ Unlike judges and administrative officials, Con-

gr essmen ‘are fr equent recipients of donations from a va-

riety of sources. -They must obviously look to’ contribu-

tors for financial support. Votes favorable to. past and

- potential supporters are inevitable. Given the accepted

definition of bribery — payment to influence action — and

the susceptibility. of Congressmen ‘to allegations of being

‘influenced by financial donors, the Speech or Debate Clause

"extends: an impenetrable constitutional shield. from pros-

ecution to Congressmen engaged “in the sphere: of legiti-

mate. legislative activity.” Tenney v. Brandhove, 341 US. °

367. 376 (1951).

‘In times of political passion, dishonest or vindictive

motives are readily attributed to conduct’ and. as

- readily believed. Courts are not the place fer such

. controversies. Self-discipline and the” voters must be

the ultimate ae for discouraging or correcting

. such abuses.” Id. 3 - ie

Few provisions of our Constitution are as sparsely liti-

‘gated as the Speech or Debate Clause. United ‘States v.

a-represemative, in the exerctse of the functions of that office: +

without mquiring whether the exercise Was regular according

to the rules of the house, or irregular and agarmst their rules.”

Coffin is said to be “the most authoritative case im the country on ine

construction of the provision in regard to-freedona of debate in leg rs

lative bodies, and being ‘soe arly after the formation of the. Fed - ;

Constitution, ds of much weight.” Abou a Thompson: 103 [ Ss.

| 168, 204 CIS8T 5. Lt was more recently cited with approval in Tenney -

. Brandhove, 341 Us. 367, 373 (19515, andoin Judge Sebelott’s

opinion in United States7. Jélinson, 337 6. 2d 180, 188, 190 (4th. Cir.

1964), ath }383.U.S. Mi age

91°

Johnson,-383 U.S. 169, 179 11966). And yet™ in the five:

years’ since Johnson, it has twice been the subjett. -of

thoroughgoing consideration. See Powell: v. McCormack.

- 395 U.S, 486 (1969): Dombrowski ‘v + Eastland. 387 U.S. 82

(1967): Now the Government seeks to bring up the Clause

for a fourth reading in a Situation di ffering little from

Johnson.- We do not believe’ such a new reading to be

~ necessary. |

THE QUESTION SOUGHT TO BE PRESENTED ON THIS

APPEAL IS SO INSUBSTANTIAL AS NOT. TO NEED

FURTHER ARGUMENT.

We now turn fo the issue w hich the Government urges .

‘upon this Court, ie., whether the Speech or Debate Clause

bars a prosecution of a Senator ° ‘founded upon a narrow ly

drawn ‘statute passed by Congress in the exercise of its

legislative power to regulate the conduct ‘of its members.”

United States v. Johnson. 383 U.S. 169, 185 (1966). .The

question was left open in Johnson “for consideration when

the. case’ arises’ ’, ibid. According to the Government, this

prosecution. under the federal briber ‘y statute, 18 U.S.C.

‘201, presents the issue. left undecided in Johnson.. It

_ argues that Congress may constitutionally enact a statute

providing. for judicial sanctions against-a member w ho ac-

cepts a bribe for performance of a legislative act; that $201

reflects a proper exercise of such assumed constitutional

- power: that the stattite should. be construed to authorize

prosecutions of Congressmen thereunder free from the

constraints imposed by the Speech or Debate Clause. Juris-

dictional Statement, pp. 5-6. .

W, ‘ithout minimizing the abstract importance of the ques-

tiok posed ‘in Johnson, we maintain that this fs not an ap-

propriate océasion for deciding it. As discussed herein,

“supra at pp. 6-8, 12-15, the decision below Was not based ‘on >

{29 | :

the invalidity or construction of.$201 and, in any event.

did not rule on the Government's contentions. Thus ab-

stention by this Court.’we submit. is both necessary and

: desirable. Should this Court find both the jurisdiction and

‘the inclination to pursue such contentions, however, it will

find them devoid of substance in the context of this appeal.

The Government's position necessarily assumes ‘201 to

‘be a “narrowly drawn statute” ~veithin the contemplation

of Jopnson. Because the position falls with its initial

premise, ‘there is no present need’ to deal with such in-

triguing but presently irrelev ant -issues as the power of

Congress to regulate the conduct of its mémbers: ‘the de-

legability of such power to the courts: the extent to which

‘a member's voting habits may be subjected to outside ~

serutiny without running afoul of the Clause: the construc-

tion of S201 as an exception to the Clause: the ‘constitu-

tionality of £201 as thus construed."

Although Johnson does not define what is meant by “a

narrowly drawn statute”, the unmistakable connotation is

one of precision. The footnote reference (id. 185 n. 15) to

pages 347 -348 of the Note. Thé Bribed Congressman’s Im-

munity From FRosecution, 75 YALE L.J> 335. (1963). -con-

firms this - impression. -When the Court posed the “nar--

rowly drawn statute” question as a possible alternative to

an absolute prohibition. on bribery prosecutions, it: evi-

dently had the following passage in mind:

“The possibility ofa tight definition of bribery which

would sharply reduce discretion: afforded under evist-

ing, stututes indicates that there need not be an abso-

* lute immunity to bribery’ prosecutions.’ ’ Ibid. (italics

addgy ),

Without pausing to contest the notion that Congress can

impair the constitutional privilege of its s members by tight

‘definitions of bribery, we reject as unfounded any sugges-

tion that $201 is defined with such pregision as to. qualify.

as a “narrowly drawn statute”. It should be noted that —

“existing~statutes” were not placed within the acceptable

category. For example, the Note condemned a companion

statute, 18 U.S.C. $203. punishing conflicts of interest, as

$201.

“{It] allows conviction for an agreement to receive

| compensation’ even when the Sribed service has-not

been performed and even when consideration has not

passed. Thus the statute leaves the jury free to con-

Vict essentially upen evidence of intent ‘only. Stand-

ards of proof. of intent are rather uncertain. and.a

Congressman might fear legitimately that honest con-

duct, could be misinterpreted. Every conversation with

a constituent interested in having his Congressman

support legislation or urge change in executive policy;

could be Suspect.” Id. 37.

Turning to $201 | itself, the Note decane that ire ‘proyi- °

sions “present vagueness problems similar’ to those en-

counter ed under the conflict of interest ‘Proy ision.’ Id. 347

n. 76. : es

It is obvious that neither the Note nor Johnson contem-

plated $201 as a “narrowly drawn statute”. Congress was

invited to enact new legislation gontaining a “tight -defini-

tion of bribery” so -as to overcome vagueness, problems.

depicted-in the Note. Congress has not yet responded and

‘201 remains on the books as a wide- -ranging “general

criminal statute”, United States v. Johnson’ 383 US. 169.

185 (1966). . ,

Historically, the federal bribery statute has been con-

strued “in the broadest possible manner.” United States

v. Glazer, 129 F. Supp. 285, 286 (D: Del. 1955). See also

constitutionally vague for reasons equally applicable to *

Pig

ese 24

- Parks v. United States, 355 F. 2d’ 167, 168 ( 5th’ Gir. 1965).

' Neither receipt of compensation. nor performance of actual

“services appear essential to conviction thereunder. - See

e.g.. United States v. Kemmel, 188 F: Supp. 736 (M.D. Pa. :

1960), aff'd 295 F. 2d 712 (3rd Cir. 1961), cert. denied 368

U.S. 988 (1962). It is the very antithesis, of a “narrowly :

drawn statute”. -

“If this statute be viewed, solely from the standpoint

‘of grammar and phraseology, it is quite striking how,

many broadening words are‘used in the statute: ‘in

. any official capacity. ‘any department or’ agency.’ ‘on

any question, matter, cause, or proceeding’, which

may at any time be pending, ‘which,may by law be

brought before him.” Consider’the number of disjunc-

tive or alternative persons, actions. or *situations re-

ferred to: ‘an officer -or employee of, or person acting

for or on behalf of the United States’, ‘any department

or agency, ‘decision or action’, ‘any question, depart-

meni or agency’, ‘decision or action’, ‘any question,

matter. cause, or proceeding which may at any time.

be pending, or which may by law be brought before

him.’ ‘in his official capacity, or in his place of trust or

profit. There is no verbal requirement that the matter ”

be pending: before the official at the time of the bribe.

It is sufficient if it ‘may at any time be pending’, or if.

it ‘may by law be brought before him’ at some time in

the future. ;

“Certainly, in jhe: fice of such sweeping language

and the purpose it was designed to .accomplish. we

find no reason ta find any.intent on the part of Con-

gress that the statute must be narrowly construed. to’ «

exclude any person or any conduct fairly. within the

broad statutory ambit. To this statuté, (and its com-

pariion, 18 U.S.C.A. $201), the federal courts_ have

properly given. an extremely liberal interpretation.”

Wilson v. United States. 230 F. 2d-521, 524 (4th Cir.’,

cert. denied 351 U. S. 931 | 1956) {italics in eee

When §201 was enacted as part of ‘the 1962 revision, it did

not restrict the broad sweep of these interpretations: . ~

“The bill does née limit in any way the broad inter-

pretation that-the courts have given to the bribery

statutes; rather, the aptent is to insure that this broad:

interpretation shall be given universal application.”

House Rep. 748, Comm. on the Judiciary, 87th Cong.,

Ist Sess. 17 (1961).

A deading: of $201, its definitions and substantive lant

guage, and its interpretation by the federal courts readily

negates any supposition that it can be viewed as “narrowly. .

‘drawn” under any reasonable definition. Nor.can we be-

lieve that Congress meant by enacting $201 to restrict ‘the

traditional freeddm of Congressmen acting within their

sphere of legislative activity. Cf., Tenney v. Brandhove,

' $41 ‘U.S. .367, 376. (951). Reliance by the ‘Government —

upon a general criminal statute.so lacking in specificity and

so susceptible of unconstitutional application, with a con-

sequent chilling effect upon legislative speech and debate,

underlines the insubstantial nature of this . appeal and

counsels its summary dismissal. |

CONCLUSION

For the foregoing reasons, we respectfully submit that

the appeal should be dismissed or, in ‘the alternative, ‘that

the judgment of the District Court be affirmed. We further

suggest that consideration of the jurisdictional issues dis-

cussed herein be postponed pending decision of United.

"States v. Weller, No. 77, this Term. - .

Respectfully en

. NorMAN P: RaMsey,

THOMAS WAXTER, JR.,

H. THOMAS HoweELL,

: eo iia i for + Appellee |

December, 1970.

Qt:

APPENDIX E

Extract from the Transcript of Proceedings in United.

- States of America.v. Daniel B. Brewster, Criminal No.

1872-69, United States District. Court for the District of

Columbia, Before the Honorable George L. Hart, United

‘| ° States District Judge October 9, 1970, pages 29-33...

* & * * * *

7 a : : a : - ;

(29 (The Court) You know, to me ari interpretation of

the law is supposed to be common sense and all these nice »

differentiations sametimes escape me.

But we have the Constitution, which in the Speech.and

Debate Clause definitely intends to protect Senators and

Congressmen from being questioned as to why as a Sena--

or a Congressman ‘they voted’a certain way, made a _

certain speech in the Congress..or voted a certain way in

Committee, or I should think it might certainly extend to

arguing with other Senators why they should vote for their

- point of view and whatnot. a

|.° Now.-surely the framers Wished to protect thése mem- |

bers from being constantly heckled and accused of im-.

proper motives, certainly as far as the criminal law is

-. concerned, for what they did. . + s.

'* Now, if that is the purpose of it-aren’t ave in (30) ‘this.

case,,in effect, or isn’t the Government in* this case, in

effect, questioning. Senator -Brewster for his. legislative

_ actions in committee and on the floor? That is what I am

haying trouble getting around.

Now, there are some circumstances that maybe it is im-

‘possible to stop Representatives and Senators from being

rascals. I am not speaking of Senator Brewster, nothing

‘So far has been proven against him, I am speaking gen-

erally. Except, of course, the will of the people, which is:

| - the final judge’in these cases... |

I don't know, but I must admit this thing gives me a lot.

of trouble and seeing the trouble I am in,’ what can you

. do to cast some light in my mind? °

2 : z° .

2% °

(Mr. Baron) {Government Counsel | Your Honor, I sub-.

* mit this: I don't want to’ pretend it is a clearcut’ question.

It is ter ribly troublesome and it is one the Supreme Court

didn't reach ‘in Johnson. Obviously they left it opén for

you to struggle. with or for’ aBCEP. Thomsen to struggle

‘with in Mary! land.

I submit that ‘if all we had were the Speech and Debate

‘Clause in the Constitution, if there’ were no section 201 -

passed by the Congress, the very body which has the right

to claim the privilege under the Speech ‘and Debate

Clause— &, :

(The ‘Cort Congress can’t change the Speech and De-

bate Clause except by submitting a Constitutional Amend-

ment.. . ; .

(31).'Mr. Baron) I submit, Your Honor, they have the

power, however, to: regulate their own membership and

we submit they have the power to delegate the, power to

regulate their own membership.

And that if.there were no Section 201 or its 5 edhiv alent,

I\would say that we dre stymied, it: is a license \o steal |

But: -Congress having exercised that power, Congress hav-

ing. in effect, said to the Judiciary and to the Exécutive.

you have the authority by virtue of our legislation \to in-

vestigate, to.try Congressmen who may be guilty of corrupt, —

activ ities\I submit that,201 is the mandate for procee ing.

\The*Cout ) We are now just talking about corrupt ac

tivity in your. legislative capacity. I wouldn’t have any

“ trouble with the allegations. of the Dowdy matter as to

‘ . accepting money, to try to affect the Executive Branch of

the Government or the Judicial, should such‘a thing hap-

pen. But Fmnust admit I am having trouble with w hether

; es itself has the power. » .

“Tf. Congress does notvhave the power they can t give it

to us.

7"\

Does ee itself have the powér to. question why a

man voted a certain way, why he argued a certain way, .

99 ioe 3

why he made the representations he, made in. executive °

‘committee and whatnot, does Congress itself have that

power?" . * . _ ff, |

_ It isn’t enough just to say that Congress has given | { 32)

it {8 the courts. Have they got it to give? - _; en

(Mr. Baron) Your Honor, I submit that'they do. I think

‘that Powell. certainly reflects that, whatever else Powell

“may say, which probably, raises more-questions than it an-

swers. I think Powell does reflect that they do have the

tight to discipline their members and to regulate the con-

duct of their ‘members and I submit—. .

* "(The Court) They have got a right. to regulate certain

conduct of a member and of course under’one section of.

' the Constitution, by a two-third vote, presumably. subject’

fo Supreme Court opinion, they have.a right-to remove. a

man from the Senate almost without giving any cause;

“| but that could be done without questioning. the manner

in which he voted or manner in which ‘he spoke or the _

manner in which he acted. in his. purely legislative capacity.

_ This thing gives me a lot of trouble.

é *

(Mr. Baron) Your Honor, I would not begin to -pretend

itis not a troublesome point. It is one which I assume some _

day the Supreme Court is going to. resolve for us: more or

. less.-, aa: ° uc “ .

But I do submit, Your Honor, that Congress does have

this inherent power to inquire. yes, even into the integrity:

of its ow process, and it does have the power to delegate

that should the Congress determine in its wisdom that

133). it, as a body, is‘simply not capable of performing that

function which it has inherent the power to.perferm. They

forum of all, the Federal Judiciary. And should it be abused

4 by the Federal Judiciary, Congress.can revoke that power.

comes simple. Does Congress itself have the power to ques-

-tion the speech and debate of one of its men} ers with.the

ws . ° or

| ; a y

\¢

have the power to delegate that to the most ‘appropriate |»

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a2 Ye ' things ojhen. an a Ipaislative act. We are not ducking The

(ae = -e question; it is SC arély: pr esented.. ‘They are legislative a acts.

Ww e are not going’ Oo quibble. over that.. fs

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.