Appellees Brief — United States v. Brewster
Supreme Court brief1972
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In THE
~S oreme Court. of the United States.
Octorek TERM. 1971
No. .70-45.. .
yi a :
UNITED STATES QF AMERICA.
| Appellant.
‘DANIEL B. BREWSTER. | |
_ . “Appellee
“ON APPEAL FROM THE UNItep States District Court FOR
THE DISTRICT OF COLUMBIA
BRIEF, FOR APPELLEE
;
NorMan P. Ramsey,
THomMas WaAxTER, JR.
_ H. THomas HoweELL. ' :
~ 10 Light Street —.17th Floor. -
: Baltimore. Maryland 21202.-
a - Attorneys for Appellee
July.“1971. ; \
' The Dail¥ Record Co., Baltimore, Md. 21203
_ TABLE OF. CONTENTS
, eo”
ss PAGE.
OPINION BELOW. - : : = 1
JURISDICTION: ° ea Se a co]
— | :
QUESTIONS PRESENTED 3 | a, 2
‘ConstITU TIONAL AND STATUTORY tone ISIONS Inv OLVED | 7
STATEMENT ; a ° 3
; © ‘ . ; :
SUMMARY OF ARGUMFNT .«- | . )
~ ARGUMENT™ va . : ee:
I. The friisaetion of this Court is open to serious
"question se | -. (8)
A. ‘The decision below was a summary judg- .
ment on the merits. -precluding-appeal 7 "9
‘B. The decision below. was. not based upon
: the invalidity of the fede oral bribery statute © 15
-C: The decision. below was not one sustaining
a motion in bar 17
II. The District Court properly sustained the |
appellee’ s claim of legislative immunity under
the Speech or Debate. Clause _ 20.
A. The holding’ in Johnson supports: the de- |
cision below ; . 20
B. The Spéech or Debate Clause bars -judicial
3 inquiry into motivations of a, Senator's vote
or decision. = . 33
n,- Congress cannot enact a statute depriving
‘members of their constitutional immunity 4.
-*D. The federal bribery statute. 18 U.S.C. $201,
is nopt.a narrowly drawn statute ~ > 42
Conciu SION. . 84
-
&
e
o¢ il
TABLE OF CITATIONS
~ Cases 3 =
PAGE
-American fasurance Company Vv. Canter, 1 Pet. 511 -
. - (1828) ° ree at 6H
Anderson v: Dunn, 6 W heat, 204 | (1821) _ 92,53, 59
Aptheker v. Secret: tary of State, 378 US. 500 (1964) 62.
. Ashton. v. Kentucky. 38 ¥4 U'S. 195 11966) - . .-
Barr v. Matteo, 360° U.S. 564 (1959). | - . 48.
Barry v. United States ex rel. Cunningham; 279 US
097 (1929) 99. 56- 97, 63
Barsky. v. United States, 167 F- 2d 241 (‘D:C. Cir. Ky :
| cert. denied 334 U.S. 843 (1948) : « — 48,68.
“Best v. Distyict of Columbia, 291 U.S. 41111934) > 12
. Bond v. “Floyd. 385 U.S. 116 1966)" . oe 62.
Burrow-Giles Lithographic Co. wv. Sarony, 111 U. S, O38.
41884) /.: 09-60
Burton vy. United States, 202 U.S. 344 11906) 90-51
‘Cantwell v. Connecticut. 310 U.S. 296 (1940) ive 73
Carroll v. United States; 354 U.S. 394 (1957) ° 16.17
Chandler v. Judicial’ Council of-Tenth Circuit, 398 oe
U.S. 74 (1970) . 64.
In re Chapman, 166 U.S. 661 (1897) : as 54: 56,82
- Cochran v. Couzens, 42 F.2d 783 ‘D.C. Cir.), cert. | a
denied. 282 US. 874 (1930) | . 48. 63°
Coffin v: Coffin, 4 Mass. 1°( 1808) gta, 43, 59-60
-, Cohens v. Virginia. 6 Wheat. 264 (18 621) (388
Crowell v. Benson, 285 U.S. 22 (1932). 4g
‘Dombrowski v Burbank. 308 ‘F. 2d 821 (D.C. Cir.
1966) | 13
Dombrowski v. Eastland, 387. U.S. 62 ( 1967) 15, 18, 25, 29,
se a a 39, 44, 45
Elfbrandt vy. Russell, 384 U.S. 11 (1966) | 73
Fairbank v.- United States, 181-U.S. 283 (1901). 59-60
' Fong Foo v. United States! ‘369,U.S. 141 (1962). 12
iii -
“pact
Ex parte Frankfeld, 32 F. Supp. 915 ‘D.D.C.-1940) «82°
Fulks:v. United Siates. 263 F. 2d:259-i 9th Cir.). cert.
denied 563 U.S. 812.1 1961) Los 75
Harlow v. United States. 301. F.,2d 361°(5: sth Cir),
cert. denied’ 371. U:S, 814 11962)" 75
Haynes v. United State 2. 390 U.S. 85 (1963) " 62
- Hentoff v. Ichord. 318 F. Supp. 1175 (D.D:C. 1970) 48, 62
Inter national. Association of Machi inisis V. Street.
367 U.S. 740 (1961) | re
_Jones v. Montague, 194 U.S)147 11904)" 255
Kemmler v. United’ States, 133 F. 2d 235 11st Gr.
1942). 3 es 75
Kennedy v. Menhdoza-Martinez, 372 US. 144 1963) 25
Keogh v: Horner. 8 F. Supp. 933 'S.D. Ill. 1934) | ay)
Kilbourn v. The ‘mpson, 103 U.S. 168 +1881) 22724, 39-44:
‘sy a 46. 48. 51-54. 56. 59. 64.65 —
7 Kinoy V. District of Columbia. 400 F. 2d 761 ‘D.C.
| “Cir 1963) | 83 ©
Laxalt v.-Cannon, 0 Nev. 588. 397 $. 2d 466 1964), 65 _
Lusk v. Hanrahan, 244 F. Supp. 539: (ED. Il. 1965) - 48
Marbury v. Madison, 1 Cranch 137 (1893) _ 49, 60-61
* Marshall v. Gordon, 243 US. 521 (1917) a 52:
McGovern v. Martz, 182 F. Spep- 343: (D.D.c.
1960) es
McGrain Vv. Densien ty. (273, U.
McGuire v. United States, 152
_2d. o07 (8th. Cir.
1945) oe
“Muskrat v. United: Susie 219 US S. 34¢ 1910) 65
N.A.A.C.P, ¢. Button, 371 U.S: 415 1963). 73-74
New York Times Co. v. Sullivan, 376 U.S! 254 (1964) > 32.
Odegard v. Olson, 264 Minn, 439, 119 N.W. 2d 717
(1963) , ’ . 55
Parks v. United States, 355 F. 2d 167 (5th ‘Cir. 1965) 75,79
:3 Powell, v- McCormack. 395 U.S. 48611969). * passim
Powell v. McCormaek, 395 F, 2d 577 (D ©. Cir. 1968 ). * . 45
eo.
15, 47, 48 |.
"135 61927). 5 SES
iv a
° ; PAGE
Pow ell V. -- MeCor mack, 266 F. Supp.: 354 (D. D. C. 1967) 21.”
Reed v. County Commissioners of Delaw are County,
_ Pennsylvania, 277 U.S. 367 (1928) : o1-52
" Regina v. Bunting. 7 Ont. Rep. 52411885). . 36, 70°71
“Regina v. White. 13 N.S.W. Sup. Ct. 322° (1875) |. 36
‘Rex Vv. Boston. 33 Commw. L.R. 38611923) ©. 6 36
‘Rogers v. Barnes, 474 P. 2d 610 (Colo. 1970F + 55
Sanks v: Georgia. 401 U‘S. 144 (1971) 7
Schick v. United States,.195 U.S.:65 (1904) — oo 37
Sevilla v. Elizalde, 112 F.2d 29 (D.C. Gir. 1940) — 5a
'. Shellburne. Inc. v. New Castle County, 293 F. Supp. . .
237 (D. Del. 1968) a. 44, 48
| Sorrells v. _United States, 287 U. S. 435 (1932) = 20
Stamler v. Willis, 287 F. Supp. .734 @&N.D. HI. 1968) _ 64
. Teriney Vv. Brandhove. 341 USS. 367 (19513 18, 22. 34, 39-47.
é _ 49,53, 59.81, 62. 66. 68, 80
Thorpe Vv. Hoases Authority of City of Durham, -393
- *U.S,263 (1969) 26
United States v. Apex Distributing | Co:, 270 F. 2a 747.
eae, (9th Cir. 1959). . ee het . 9
_ United States v. Ballin, 144 U.S. (1892) - 86, 63
United States v. Birdsall, 233 U.S. 223 (1914) 31... °: 992
__ United States v. Blue, 384 U.S. 251 (1966) | 4,18
_. United States v. Borden Co., 308 U.S. 18811939) 9, 11, 17,26. ©
_ United States v. Brewster, 401 U.S. 935 (1971) 2.8
- - United States v. Brown, 381 U.S. 437 (1965)" ~°. 65,67
United States v.-Carter, 231 U.S. 492 (1913) ° . “7
- ‘United States v. Costello, 198 F, 2d 200 (2d Cir. ), .
- *. cert, denied 344 U'S. 874 11952). 62...
"United States’ v. Dietrich, 126 Fed. 676 (CCD. Neb. | .
a age Ee 12.
United States v.-Evans, 213 U. S. 297 1909) eg at 6
_ United States v. ‘Findley. 439 F. 2d 970 (1st Cir.
1971) a | - -§,.9, 13- 14
Vee
aye
; . :
(4 PAGE
United States V. Glazer. 129 F. Supp. = (D. Del.
1955) ee:
United States v. Hark, 320 U.S. 531 (1944) ee
United States v. Hastings, 296 U:S. 188 (1935) © 11,17
‘ United States-v. Hoffman, 335. U.S. 77 (1948) . 18
_- United States v. Jin Fuey) Moy, 241 U.S. 394 (1916) 76
United States v. Johnson, 383 U.S. 169 (1966) pdssim
United States .v. Johnson, 337 F 2d 180 4th Cir. .
“ 1964) . / + 29-30, 68
United States v. Jotinson: 215 F. Supp. 300 (D. Md.
1963) ? 28...
United States v. Johnson, 419 F. od 56 (4th Cir. 1969), Par
cert: denied 397 U.S. 1010 (1970) ©. . ~ 10
‘United States v. Jorn, 400 U.S. 470 (1971) °" 812,16
United States v. Keitel, 211 U.S. 370 (1908) 26
- United States’v: Kissel, 218-U.S..601 (1910)°) | 26
United States v. Knox, 396 U.S. 77 (1969) *15-16:.
United States v- Maryland Co- -op. Milk Producers, _
- Inc., 145: F. Supp: 151 (D.D.C. 1956) 13
United States v. Mason, 213 U:S. 115 +1909) 26
United § States v. Mersky, 361 U.S. 431 (1960) - ,
United States v. Mascall, 215 U.S..26 (1909) - +. 536
United States v. Monia, 317 U.S. 424 (1943) ane 18
United’ States v. Murdock, 284 U.S. 141 (1931) 14,20
United States. v. Petrillo, 332 U.S. 1 (1947). ‘17, 26-27
United States v. Raff, 161 F. Supp. : 276 (M.D. Pa.
1958)’ 79°
United States v. Robel, 389 U.S. 258 (1967). - 73".
United States v. Rumely, 345 U'S..41 (1953) ° - . 82
United States v. Shirey, 359 U.S. 255 | 1959 ) ae * 21
United States v. Sisson, 399 U.S. 267. (1970) 5, 8-9, 11-16,
. = 18-20
United States v. Storrs, 272 U S: 652 | 1926 | #2 14
_. Rnited States v. Vuitch, 91S. Ct. 1294 (1971) - 4,26
‘United States v. Wayne sing Co., 317 US. 200.
(1942): ee 7 i ii
by
. PAGE
United’ Statey v. Weller, 401 US. 254 (1971) * 6 14, 17-20
Ex parte Wason, L.R. 4 Q.B, 573 (.1869)". - . 31
Watkins’v. United States, 354 U.S.1178 (1957) 42.59.
Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W. 2d .
504 (1946) 7 . 5
. § Whitehill v. Elkins, 389 U-S. 54(1£ bs 24
Will v. United States, 389 U.S. 9 Spear i ; 16°
Williams v. Rhodes, 393 U.S. 23. (1968) 61
Williams v. United States, 289 U.S. 553 (1933) 65
Wilson v. United States, 369 F..2d 198 (D.C. Cir, 7
1966). - 82-83
Wilson v. United States "230 F. ‘2d 521 (4th Cir. Pigs
cert. denied 351 U, S. 931 (1956 ) Tes : 79-80
st Constitutions, Statutes, and Rules ee
United States Constitution:. ©. em a OLN g
' Article I, Section.1 =) 01000202 188/51, 2 :
Article I, Section2.cl.5 °° ~:s«&B
Be ‘Article I, Section 3, cl. 6 eee es 64,66 ]
Article I, Section 5, ee 3 ; es ae |
‘ Article I, Section 5; cl. SB, 37-38, 51-58; 62, 64
> * Afticle -I, Section 6, z 1 (Speech or Debate
<. Ciatee) ee tee - 9. + passim
Article I, Section 8 - 3 i :
~~ Mptiole Til 20°"... 2. ie hac, ae a
) First Amendment . - Cae 2 ee
bs ..' 2USC, $199 pave at on eee eee tr
: nee}. mee | | ee eae
18 U.S.C. $201 ‘federal bribery statute) .. © 2-8, 15-16, 21, .
pote he Send cae _ 24, 28-32.- 72-83:
$203 ‘ : ae , z. ee 78
5. eee. : Th Be
' $3731, (Criminal Appeals Acer 2; 36, 8- 21, 26, a
ss : 50 U.S.C. App. $462: ee Oe 4 13 -
vi ~~ -
ie.
Re:
‘Rule 12, Federal ules of Criminal Procedure |
Articles of Ke federation, Art: Vo. 7
‘Maryland L eclaration of Rights of 1776 (Art. VIII)-
: nies
-
Act of January 24. 1857.¢.19. $1, 11 Stat. 155
Act of February: 26, 1853, ¢.81, 10 Stat. 170, 171
Act of April 30; 1790, $21. 1 Stat. 112, 11%
Rule 2, Federal Rules of Crimigal Procedure -
Massachusetts Bill of Rights of 1780 ‘ Art. XXII)
o Constitution.of New Hampshire of 1784 ( Art. “XXX )-
Miscellaneous:
(1st ed. 1889)
Panap s ommentaries (5th ed. ITB)
Bowers, Tragic Era:-The Revolution After -
es ( Houghton- Mifflin ed. 1962)
Cella, The Doctrine of Legislativ e Privilege of Frée-
dom of Spéech and Debate: Its Past-> Present and
* Future as a Bar to Criminal Prosecutions. in the
Courts, 2 SurFoLK Y.L. Rev. 1 (1968). ,
Clarke, Parliamentary Privilege in. the American’
Colonies (1943) 7
4 Coke, 3rd Inst. ( 1797)
The Federalist (Ford! ed. 1898):
No. 51: .
No. 62° | :
Si. ead
No. 65
No. 66.
No. 81
9-10
45, 46"
-- PAGE
“Association of the Bar. of «the. City of New York,-
- Conflict of Interest and Federal Service (1960)
Sikes: Commentaries. on: the. Non- Contract; rae
ee i Se v ae ; ee ee) - ‘PAGE.
oe Il Hinds i House of Representatives ‘
. «€1907) - po By , : 34
House Rep. 748, Cckede. on. a diciary, Pre Cone. ei
Ist Sess. (1961) _ , ; = | "
-Kirb Congress pe the Public Trust ( 1970 a wa
y> gr ; Dae eer
Luce, Legislative Assemblies, (1924) CR ees 42-43 --
May, Treatise on. the Law, Privileges, Proceedings, oe:
and. Usage of Parliament (14th ed. es
-1946) as ie 36 °
4 | Note, 78 Harv. L. Rev. jedits 1965) i : * 98 bo 36, 68. £9
r Note, The ‘Bribed Congressman’s Immunity vom. .
_ Prosecution, 75 Yate L. J. 335 (1965) .. 29, TI: 78 -
Note, ‘Mandamus to Review Judgments of Acquittal
in Federal Courts, 71 YALE L. J. 171° CROGEY gs ts 12
-Scharpf, Judicial Review and the Political Question |
— a Functional Analysis, 7) Yate L. J. 518
(1966) 7 e 64
. Stern & Gressnian, Supreme Court Practice (4th ed. ae
Story, Commentaries. on the Constitution (3rd ed.
‘OBR. 40
Taswell- dt ccipratad, English Constitutional History oa
(10th ed. 1946) is . 39
Weehsler, Toward Neutral Principles of ‘Constitu- F
) tional Laut: “43, Harvy. Is. Rev..F (1959) 64 .
7. Writings of Thomas Jefferson, (Ford. ed. 1898). 42-43
I Works of James Wilson ( Andkews « ed..1896) 40
Yankwich, The Immunity: ‘of Congtessional Speech — a of
_. Its Origin, Meaning and denies 99 U. Pa. L. REv.
- 960 (1951). ue 48 -
~ Sener a Hts
O,\.
- ; ‘
38 ’ a ‘
3 ee ] : i es.
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: _ In THe
- Supreme Court of the United s States
: Gdeeaia ase, Yost ne
Pa =s | aciaee ts
UNITED STATES OF AMERICA, ;
Sere of Appellait,.
: : Vue 7°
— » DANIEL B.. BREWSTER, — 3
i eae = pre ESS oe os ene | Appellee. panes
-
ex Apoeat: FROM THE {Taisven SraTEs Drsresce Court FOR
"THE aSrRet: OF CoLuMBIA os
‘@ .
- BRIEF FOR APPELLEE wes
2)
; OPINION BELOW
The District Court did not deliver a written ‘opinion. Its,
oral opinion is contained in. the Appendix at 33.
. . eg, JURISDICTION | estate
~ ~ The judgment of the District Court. was entered on No-.
vember 3, 1970 (A..34). A notice of appeal to this Court
'. was filed on November 4, 1970 (A. 3435). On March i,
1971, this Court peak varies consideration of the.
.
>
2 . : ‘ . ‘ “a ae ; : ; ,
. W . a +. ee P he a é .
eB retry ae : ; einen adnan oo Leite ee
e . ‘ . * i .
-
“question: of junfisdiction | to the hearing’ ‘on the merits ( a
35). United Statés v. Brewster, 401 U.S. 935 (1971). For
: os reasons set forth in part I of the Argument; ‘infra, serious -
, questions exist as to ee under the Criminal Ap-
' peals Act,.18 U. 46 C. §3731. 3
+e * QUESTIONS: PRESENTED 3 =
"The District Court held, under the agreed’ facts of this
ease, that the Speech or Debate Clausé of the Censtitution, .
Article I, 6,1 as. interpreted by this Court in United States
v. Johnson. .383 U:S. 169 (1966), provides a United States
Senator with a constitutional shield against prosecution
- for aHeged bribery in the performance of legislative atts
(A. 33). On this direct appeal. only two queens * are prop- ©
| — béfore this Court:
w mecca "Whether the Criminal Ainpeais Act, 18. U.S.C. $3731
ee (as: applicable prior to its recent amendment), confers a
4 jurisdiction. upon this Court not only to review a, decision
sustaining an affirmative defense- onthe merits but also to- -
pass upén the constitutional validity of the federal. , bribery i
‘statute, 18 U.S.C..§201, as to which the: District ‘Court. ex-
: ‘preees: no opinion.
2. Whether the District Court: properly sustained the |
; appellee’ s claim, of legislative immunity under the Speech :
or Debate: Clause from any prosecution arising.out of his —
erformance of legislative a acts in the United States Senate: :
Sta
1 The compiete text of Kinki L, | $6. is as follows: “The “Senators—
s and Representatives shall receive a Compensation for theig Services,
to be ascértained by Law, and paid-out of thé Treasury of the United
* States. They shall in all Cases, except Treason, Felony-and Breach.
‘ of the Peace, be privileged from arrest 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.” (Italics added).
“The. Govnictuisian’s S ‘Brief, Which mistakenly Sa ho
am the decision below as oye invalidating the underlying, .
é
statute on which the indictment was. based, suggests a dif-
ferent question:’ _ an
Whether ( a). the : Shoech or Debate Clause or’ any
ae other constitutional provision prohibits Congress’ from
enacting a statute providing for the judicial trial and
- punishmenf of members who accept bribes in: change _
*: for the performance of legislative acts and (b) if | no .
“—~constitutional. prohibition: exists, whether the statute
hére in issue constitutes a valid exercise of Congres-
sional. = (Govt. Br. 2). ah
We contend’ that legislative immunity, where applicable,
is absolute and yields to no statute, however. drawn or con-
- ceived. Accordingly, this Court: should reaffirm the appel-: |
_lee’s claim of. immunity without ‘pursuing the additional
matters outlined in the Government's Ss es.
|
TON STITUTIONAL. AND STATUTORY
‘s PROVISIONS. INVOLVED _—
_-The _Goyernment’: Ss Brief, (2-4) sets forth. the constitu: .
tional and statutory provisions here involved.
: . STATEMENT: oe tents
On Gruber 9, 1970, the United: ‘States District Court for
‘the District: of: Calumbia dismissed certain counts of anin- . .
_ dictment charging appellee, while a United Statés Senator,
with soliciting and acceptirtg bribes from Cyrus T. Ander-
son, a lobbying representative of Spiegel, Inc., a large mail
> order: company, i in violation of the federal bribery statute,
18 U.S.C. §201 (A. 1-7). The essence of the charges was
that appellee accepted payments’ in- return for eing ire ’
- fluenced in the performance of official acts while a United —
States Senator and as a member of the Senate Committee.
-on the Post Office and Civil Service with regard. to his ac- _
_ fon, vote and degision on pees rate legislation. ee
ig $5. 8 : “4
Nw
he ; 7 : . = ; te fe
ie his motion to. Siseisian the indictinent (A. 8), appellee”.
: invokeg his claim of legislative immunity: under the Speech *
or Debate. Clause.2 In the District Court it was demon-
strated that the bribery charges were allegedly rooted in 4.
~ the appellee’ s deliberations with respect to: postal legisla.
tion as well as his votes in committee. and in the Senate.
‘The Government disc laimed having any. proof hot aeeny.
related to such legislative acts (A. 26). In colloquy with -
counsel, the Honorable George Hart,. District Judge, ex-
: “pressed the view that “the Speechgnd Debate Clause defi- -
“
nitely’ intends .to protect veer and: Congressmen from .
being questioned as to why as-a Senator or a Congressman
they. voted in’a certain way, made a certain Speech: in the
Congress or voted a certain way in committee | sa (A.
26). "Judge Hart. further observed: . . x
** * [Thhis Speech and Debate Clinaat ‘wasn’ t hint |
something that somebody. stuck. in this Constitution as -
- an afterthought ‘just to be putting words in. This .
_ matter of protecting legislators in what they did as
legislators was a very a. matter to- the people _
_who drafted you don’t »
often: hear ‘about, : but for the functioning of a true
Republic vit is probably as important as the first ten
Amendments put: together (A. 30). ‘
Contrary to the Governmient’s position on. this appeal,
the District Court! did not base its decision upon. any con-
struction or invalidity of the federal. bribery statute. It
. did not reach such issues because, peru iiipglorcmcaeciew eS
—
2A nother branch of his motion (A. 9) asserted. ‘at shige hekicecaack 4
improperly charged. him with aiding and: abetting’ himself; that the - .
chargés were ‘unconstitutionally vague; that the underlying statutory.
provisiéns, 18 U. 9 Be §201(c) (1) and §201(g), were unconstitu-
tionally vagne and contained 1fe-aseertainable standard. Since these
questions were not passed: upon’ by the District Court, they are not
open to review on.this direct criminal appeal. United States v. V uitch,
91 S. CtmJ294, 1300 re United tacit v. Blue, 384" U.S. 251,
236 ( 1966). ‘
a
©.
. sa e . . | . | , 5. . .
: "° : ‘ one S. ‘
pabcakiticie ‘of this case eek in: line with United Staterv. ...
Johnson, 383 U.S. 169 ( 1966), the Speech or Debate Clause
_ was held to provide the appéllee with a complete defense:
| _Gentleméf, based on ‘the facts of thiscase, it is ad-
- mitted by the Government that-the five counts of the -
_.. indictment which charge Senator Brewster relate to
_~_ the acceptance: of bribes in connection. with. the per--
f formance of a legislative function by ‘a Senator of the ©
_ United States. - ‘
'. It is the opinion, ‘of. this Court that the Siatbacuniies
ee wade the Speech and: Debate Clause of the Constitu-
- tion, ‘particularly in view ‘of the intepretation’ given
that Clause by the ‘Supreme Court in Johnson, shields’ _
Senator Brewster, constitutionally shields him from: ._.
’ any prosecution for alleged bribery to perform a legis-
' lative.act. _ =
. I will, therefore, ahinion thie odd counts of the in- ~
| dictment,. 1, 3,.5, 7, and 9, as — apply to Senator .
; Brewster. adie? . © 33).
‘The. wi of dismissal (AL 20) sutbred on es +:
_.1970- was-baséd exclusi lusively upon the’ foregoing reasons,
and: not on the spits, a! or construction of 18 U. S. C. §201.
. \
SUMMARY | OF ‘ARGUMENT -
1.. The Goverhment has not demonstrated, and cannot |
- dernonstrate, a valid jurisdictional’ basis under: the Crimi-_.
nal Appeals | Act (as. it existed rior_te—its-1970 amend-
ment). oe :
ae
~- By appropriate indtibn the. edie: raised the: affirma-
%s Seo e hina
- tive objection of the Speech or Debate Clause to judicial | ry ze
“inquiry into his legislative acts; and’ the District Court's.
: ruling was in effect a summary judgment on the merits,
not within the reach of Section 373}. See United States v.
Sisson, 399 U.S. 267 (1970); United States v. Johnson, 383
US. 169, ¢1966) ; United States v. iceie 439 F. 2d 970. ~
(1st Cir. 1971).
oe
e
o
a
aoe
A‘
me
Our éctieliiatons is strengthened nf the fact that the Dis- :
: trict Court ‘did, ot review, discuss or base its decision on .
_ any finding pt invalidity of the statute in question but x
_ predicated its action on the theory that the Speech:or De-: -
bate Clause, as construed in Johnson arid. as properly
“applied to this case, should relieve the appellee of the duty —
of defending himself. Under these circumstances theregis
~ no basis for a contention that the jurisdiction of. this Court —
may, Ke founded onthe second paragraph of Sectiéry 3731.
Further, United States: Dv. 401 WS. 254 (19713, 4
and addition ents interpreting the “motion in, bar”
__ prevision of Section 3731 make it clear that the effect, of an
" assertion of the Speech or Debate Clause by a legislato? i is .
not the functional equivalent of.a special plea of confes-—
sion. and _avoidance — the historic test. of _a “motion in
ba bar”-A claim of legislative immunity ‘in no way consti-
“tutes an admi8sion of -criminal conduct and an avoidance
of the consequences, ‘but instead is an ‘assertion of a finda-
mental concept necéssary_ to the ; proper functioning of our
- form of government) The’ Appellee could not be called
upon to confess. or 1 yhere his legislative acts or mio-
tives aré called into question in any place other than: the’
- House of which he’ was a meinber. His action iri inviting
_ the attention ofthe Court to the application of a Constitu-
* tional principle cannot be equated to a confession of any |
_ wrongdoing on his part, since the very inquiry necessary —
‘to an ascertainment of guilt or innocence is expressfyafor-
bidden to the court in which the proceeding was held.
— The basic law applicable to thé District-Court’ Ss: order
. is ‘elear and incontestable under, the prior decisions of this
Coste: The Speech or Debate Clause bars a prasecution ™
under a general criminal statute where, the legislative con- °
- duct of amember of Congress is called into question. United -
Oe
_ - either. in fact or in law, but is so sweeping as to c
s - .
~ .
| foo v. ‘Johnson, 383 US. 169 (1966).
being called to account for. his legislative sckp or motive
. in any forum except’ the House pf ‘which he is a member.
: Indeed, so fundamental to the proper’ functioning of our -
Governmient i is the Clause that, we submit, separate grants .
of power made i in the Constitution to,the House and. Senate °
cannot’ be delegated either by the ?
a _ concurrent acts of the Houses as r spects matters covered
not ‘be divested by: any.
S Constitutional function of .
ct ‘of one House or -by
_ by that Clause. The Clause-c
.. statute, broad or narrow, of j
protecting the. ‘people’ s elected representatives.
: Although a Constitutional provision deliberately adopted Sa
ib o perform a vitalfunction inthe proper operation of the ’
structure of government needs no further defense,.we out-
line: the practical considerations which support the read-
ing which the District Court gave to the Clause and believe. --
that the view we. take is supported by the most vital con- &
siderations macicones the. préservation of « our system: of |
government, \
Finally, we demonstrate that the federal ities prem
18 ‘U.S.C. 201 is in no serise a “narrowly - aay sh
se i
~ suffer: from Constitutionally impermissible overbreadth.
The insubstantial nature of the Government’s position is
clearly demonstrated by. the attempt to bring within the .
Ps ambit ‘of thé “narrowly draw n” concept a charge based on
a general criminal statute, la¢king specificity, as a vehicle -
os .
‘This doctrine :
to
a ve eyes are rodney ties
3 a eR
1.86 -
s\ :
Lal
>
grasp under: the Criminal Appeals a 3
: that its appeal falls inte one of the categori
- Pat
ag ,
ar” ae ibid s ie
YS s i J
to. ‘averturn the iinportant concept of ‘Constitutional pas
tection. ‘of Aegishitos against inquiry. irito their degislayye :
acts and motives. . ; 7
: ; ee: —- r 2. : <a ;
pe Sanéunacer ee a
THE JURISDICTION’ OF THIS COURT Is OPEN |
« .. TO‘SSERIOUS QUESTION.” , ‘
“In an effort to restore the ingiisitorial prerogatives of :
the Tudors ahd the. Stuarts, and to read the Speech or De-
bate Clause out of the Constitution, the Government | pays —
secant heed to.‘the preliminary: questions. of jurisdictjon..
which were postponed to the hearing of this case on the -
- merits. United States v. Brewster, 401 U.S. 935 (1071)..
The serious quesféons which we previously raised in’ our.
- Motion to Dismiss - or Affirm (413), filed in December, ’
1970, are not answ ered by unpersuasive bland assurances
in the Government's’ Brief. We are not reluctant. to. ad-~
‘dress the merits. Thé appellee desires a conclusive ad-
judication of his glaim under ‘the Speech ot Debate Clause, ee
, confident that this Court ,will fully preservé athe historic |
sanctity of deliberations and votes in. the. Congress and ~
maintain that delicate balance of governmental powers
which the Constitution secures. However, the orderly ad-.
‘ministration of: justice. calls for: examination of the jufris-
~ dictional problems arid it seems clear that the Govern; |
ment’s far-reaching submission exceeds its jurisdictional -
4
‘
. It is incumbent upon the " Governniady t ‘Gendosiems: ;
S set forth’ in
4 The 1970 liberalizing RGAE ep to the Act, 84 Stat. 1890, “has
na application to this appeal (Gow. Br. 7 n.4).. See United States
v. Jorn, 400 U.S. 470, 477 n.6 (1971 ), As to the version of the Act.
‘Applicabic to this appeal, our probit is aptly summed up in the conte -
ments ‘of? Justice Harlan in United States. v. Sisson, 99 U.S . 267° ze
taleiabel “Clarity is to. be desired in | any statute, but in: matters of.
:
a eee : 5k x OF
- the Act, ‘tee “the: exedpticnsl right: of. cout given to the .
Government by the Criminal Appeals Act is strictly limited ee (
. to the instances s ified.” Dnited States'v. ‘Borden Co.; 308 © q
US. 188, 192 “( sereed Unised States v.. Sisson, 399 US:
267, 291 (1970). Here, the Government \attempts - to _in- ee
Poke two provisions ‘whigh naga nae: direct appeal to ) this ;
“Court: : ps Gere
Fromsa decision or - judgment setting asides or. dis-
missing any indietment or information, or any: ‘count
thereof, where such decision or judgment is; \baseg |
- upon the invalidity. or construction of the statute’ ‘upon -
3 ~ which the indictment or information is: founded.” pees
ee he eee, See oe : j . -
~-From the decision or judgment sustaining a motion
aif * ini bar, when the defendant has not — put in jeop-_
ov andy, eee /1USC. 37a. ced,
: A. THE DECISION BELOW WAS A’ " SUMMARY. JUDGMENT :
| ON THE: MERITS,’ PRECLUDING APPEAL.
Before considering the Government's: argument that. the soe
_ decision below’ was. “based upon the invalidity-* * * of, the °
cS statute.upon which the indictment * * * is founded” ( Gové .
- Br: 7), it must: first. be ‘determined whether. that decision ©
-..Was one “setting aside or dismissing” the indictment, That : 4
"paragraph of $3731 was meant to apply’ only .to. on S. a
based upon defects in the indictment or information or in
the institution of the prosecution.4 No Government appeal
lies from a pre-trial adjudication of an .affirmative defense
. raised by ‘motion, except under the narrow category re- , ‘
“served. for motions in bar. TE ae aoe rae ee | ay
Af, oe
“jurisdiction it is: ahs miportannt. Othierivi mse 5 ie courts and the:
‘ parties must expend great energy, -not on the merits of dispute settle- -
y ment, put on ‘simply. Seis Ww oe a court has the: gate to hear
acase.” Id. 308. sty
heath: nited States v. Findley, 439° F. 2d 970, 972 fist: Cir, 1971): ie
‘Cnited States v. Apex Distributing Co.,-270 F. 2d 747; 755 (9th Cir.
1959). See. Rule 12(b} (2), Federal Rules of Criminal Procedure.
- Other defenses, or Sheen w hich are capable of" determination with: ©
‘
‘
* : %
pe “? - : od
. :
oe gee MO
We pointed out in our Motion. to Dismiss or ‘Affirm that.
the Speech or Debate Clause: is not an automatié, self-
— prohibition against the indictment of Congress-
. men. It does not shield. conduct “that is: in. no wise related
- to the due functioning of the legislative process.” United
_ States v. Johnson, 383 US. "169, 172 (1966). Conversely, a
prosecution y. not attempt to. “draw: into question the
eiveaels of the ‘defendant member of Congress. or
’ legisla
his motives*in _performing them.” Id. ‘185. Between these
gp Peaae lie. abundant’ shades of gray. Whether the pros-
a
narily questions of fact determinable with the general is-
Sue, either before: ot during’ trial, AS Johnson holds, a
‘prosecution of a Congressman may run its’ normal course
once it has been “wholly purged ot elements offensive to
. the Speech or’ Debate. Clause.” ” Fd. 185.5.
" \
- When a defénse. is “al unfler the Clause by pre-trial
-métion, as, is permissible undpr- Rule 12(b) (1), Federal .
-ecuted activity is merely “an incidental part’ of the Gov- -
--. , ernihent’s case,” id. 176, er lies at its very roots are $rdi-’.
a.
« Rules. ‘of Criminal Procedure, the trial court must ‘deter- .
mine the applicability of the Clause, in advance of trial.
‘if ‘possible, td. insure ‘that ‘ ‘legislators are relieved - of the
_/ourden of defending themselves.’ ” Powell v. McCormack,
393 U.S. 486, 503 and n.25 (1969) :: ‘In this case, the required
‘determination wes facilitated, and any ambiguity in the
indictment was eliminated by the pre-trial disclesyres of
the Government. In. its representations to-the Court in
- memoranda and ofal argument, the oa acknowl-
out the trial of: ehé geticral issue may. also be. pared bymotian and -.
‘determined. before ‘trial: ‘Rule 12¢b) ( 1), (4).¢
5 The case was renianded for a new trial. United States 'v Shae:
383..U.S. 169% 186 (1966). On remand, the speech- ‘oriented oh
_spiracy count was dismissed’ without Government ‘opposition but
~ Johnson was reconvicted “on the remaining substantive counts which
had nothi ung to do with ‘his speech”. U nited States v. Johnson, 419
F.2d ep 58 (4th Cir. er cert. denied 397 U.S, 1010 (1970):
on ~ be ~
iP ein INE Race AF BG s J
‘edged that ue etivities + mana in the indictment related
_ to the appell
Senate. In -dis
acted: upon the
as follows:. . |
. .Gentlemén;: , on the facts of this case, it is ad-
_ mitted by thé Government that. the ftve counts of the
indictment’ which, charge Seeator. Brewster relate to
the acceptance of bribes in cohnection with the per--
‘formance of a legislative function by a Senator. of the
- United: States AA. 33). Citaligs added ).
sing of . ‘the motion, the District Judge
t\pulations and’ prefaced - his decision 7
As was noted in United States. Sisson, “this. Court has
never held that an ‘appeal lies from a decision which de-
8 performance of legislative duties in the a zs
“pends not upon the sufficiency of the indictment alone, but .’
also’on a stipulation of the parties.” * 399 US. at 285. Sisson
x! suggests that the introduction of a defense gn the merits
> supported by facts, and sustained by the trial court as part © ms
of the -general issue, removes the case from the appealable - }
category. Id. 286, 291, 301. ~Such.a disposition’ is not bot- —
tomed..on the indictment alone, as it must be in order to |
qualify for treatment under the provision of83731 here ’
relied upon by the Government, See, e:g., United, States v.
Wayne Pump Co., 317 U.S. 200, 208 (1942); United States
wy, Bogden Co.,:308, U.S. "188, 193 (1939): United States Or...
| Hastings: 296 U. S. 139, 194 (1935). As this Court observed . ;
_.in dismissing the appeal in ‘Sisson: a > 8
_ The decision below rests on affirmative defenses: which
~ <the Court thought, Sisson could claim because of his
heliefs. It has never been thought that an indictment,
in. order to be sufficient, need anticipate affirmative
defenses. * * * In short, this indietment cannot be
takén as insufficient for on the jone hand, .it recites-
'. the necessary €lements @ an offense and on the other
‘hand, it ddes not allege facts which. themselves dem-
onstrate the availability of a cons Br Ons priv lege.
Id. 399 U.S. at 288-289.
.
Ne al
A
eR ood Se |
Here the District Couct sustained the appellee's claim;
of legislative immunity not solely: upon -the ‘averments of
the indictment but. also- upon the Government’s factual
disclosures. Unlike Sisson and United States v. Jorn, 400
U-S. 470, 473-476 (1971), ‘the. appéllee was: pot placed in
jeopardy im a- constitutional sense. There can be no ques-
tion, however, that under -the District Court’s view of the.
. law, had the case proceeded to trial the same facts would -
- ‘- Have compelled an aequittal from which no Government
appeal would lie. See, e.g:, F ‘ong Foo v. United States, 369
A eke 141, 142 (1962).-
. By its action the District Court held, in effect, that this’
ate could not: proceed * ‘wholly. purged of elements offen-
‘sive to the Speech or Debate Clause.” United States v.
Johnson, 383 U.S. 169, 185 (19667. If such action upon ad-
’ mitted facts is’ non-appealable, the result follows‘ no mat-
*. ter When that action is taken. As Judge 4later Justice)
Van Devanter once said, “it would be a waste of time to ©
listen to evidence of other matters when at. the outset a
~ fact is clearly and deliberately admitted which must de-
’ feat the prosecution in the.end.” United States v. Dietrich,
126 Fed: 676, 678 (C.C.D. Neb. 1904). With these words,
‘ a bribery prosecution’ of a Senator was dismissed when the
Government revealed that he received the payments be*
fore taking his seat in the Senate. Surely “there is little .
functional justification for reviewing a trial court’s action
in entering judgment as soon as it becomes apparent that
the ‘case must fail, since a judgment of acquittal at the
close of the ev idence would admittedly not be reviewable,
‘éven where the trial court offered no reason for its action. i
8 Note, ‘Mandain us sb re Judgments of « Deaual: in, Federal |
Gourts, 71 Yave L.J. 171; 173 (1961). “The pawer of the court to
act upon facts conceded by'counsel is as plain as its power to.act upon
> facts produced.” .Best v. District of Columbia, 294 U.S. 411, 415.
en
(1934). Dismissals frequently occur where thé Government’s own’ ’
: 7 ¢ , ; Z
_
Viewed im this . perspective, the actian of the District
Court constittites a summary ‘judgment on the merits,7
‘
singling out and adjudicating. an affirmative: ‘defense in -
advance of trial and thereby eliminating unjustifiable ex-
pense and delay while achieving a just-detérmination. See —
Rule 2, Federal Rules of .Criminel: Procedure. -Our. con-
‘clusions are f ified by United States v. -Findley, 439 F.
2d.970 (1st Cir. 1971), decided after this Court postponed.
jurisdiction in the present case. In Findley, the defendant
was indicted under 50 U.S:C. App. $462 for refusal to re-
port for induction as ordered. His\ pre-trial motion to dis-
-miss was granted on the ground that the order was: invalid
‘because his draft board had given no reason _fo¥ refusing
to reopen his classification. Dismissing the Government’ S
‘appeal, the First Circuit held “that although labelied-a mo-
tion to dismiss, Under the rationale’ of Sisson the [trial]
court’s action was in. reality an: acquittal, or. more pre-
-. cisely, a summary judgment on the merits not appealable
tion “that if a dismissal is a result of the showi ing of
-s evidentiary facts dehors -the- indictment which, if estab-
lished at a trial, would constitute a defense on the merits,
the court's ruling, however described, is in effect an ac-
» quittal, and thus, not: ‘within the intended .purpose of the
appeals statute. * I bid: ‘The soundness of this: rule i is borne
-_ TF ,
evidence ‘at trial indicates the existence of an. -iron-clad defense. See,:
eg. MeGuire v. United . States, 152,F. 2d 577, 580 (8th Cir, 1945) -
United States v. Mayyland Co: Op. Milk Producers, Ine. So FF: Supp.
I31, 152-¢D.D.C., 1956):
“Ina civil context, summary ‘judgment was pao ate: toa
Senator where, as here, the “record before the District. Court con-
tained, unchallenged facts of a nature and scope sufficient to give
“{him| an. ijymuypity ‘against answerability in damages for actions
taken in the course of [his] legislative activities.” Dombrowski eo
Burbank, 358 F. 2d 821, 824 (D.C. Cir. 1906), aff'd sub. nom.
Dombrowski v. Eastland, 389 U.S. 82 (1967). eS
2
- anywhere under Section 3731.” Id. 972.. Chief Judge Ald- -
rich concluded his review: of precedents with the observa-.
out by negative imnsiait upon the administration of justice a
ee:
Ww hich a contrary approach might oecasion:
If an appeal will, lie i in the present case, which it can:
“nat if the defendant waits and subjects himself to
jeopardy, informed counsel believing they have a de- -
- fense on the merits.will henceforth protect their clients
by avoiding an expediting procedure otherwise. bene-
~ ficial to all concerned, and only ignorant and ill-advised .
defendants will ‘subject their defense on the merits to
_a government appeal. We will not adopt such a penal-
izing construction of the statute. Id, 974.
. 4
- 2. What has been said of the “dismissing any indictment”
provision also disposes of the Government’s contention that
the. case is appealablé under the “motion in bar” branch of |
~ the Criminal’ Appeals Act. .The latter provision was re-
cently .construed restrictively in United States: v. Weller,
401 U.S. 254 (1971), in line with the common law ante.
cedents of.a special plea i in bar. Id. 259.. As Justice Holmes
-once remarked, the Criminal Appeals Act “uses t&hnical
| words, ‘special plea in bar’‘and we see no reason: for-not
“taking them in their technical sense: United States’ v.
. Storrs, 272 U.S. 652, 654 (1926). “Ryen under the most
_ expansive view, however, a motion in bar cannot be granted
-on the basis of facts which iba necessarily be tried with —
_ the general issue in the case.” Unitéd States. v. Sisson, 399
US. 267, 301 (1970). See United States v. Weller, 401.U:S.
254, 259- 260, | 1971). Except for matters in confession and
avoidance, “there is né warrant for its use ‘to single out
for determination, in advance of trial matters of defense’
either: on questions of law-or fact.” United States v. Mur-.
“dock; 284 U.S. 141, 151 (1931). Motion in bar jurisdiction
thus does not turn upon the extent to which the facts are
undisputed or resolved by stipulation, cf., United States v.
‘L Sisson, supra at 284-286; “for this would mean the parties -
é
MS te
and the ‘lower court simply could foist qinecicuon upon .
- this cour ” Id. 287. ree
B. THE DECISION BELOW WAS NOT BASED UPON THE
INVALIDITY OF THE FEDERAL BRIBERY STATUTE. |
We. turn now to the. Government’ s main contention that:
the decision below was “based upon the invalidity * * *:
of the statute upon. -which the indictment + * * is founded”. ~
(Goyt. Br. 7). The District Court expressed no opinion as
" to the validity of the federal bribery statute, 18 U.S.C. §201,.
‘but spoke. instead of “immunity under. the Speech - and. De-
bate Clause” in terms of a shield “from any prosecution for
alleged bribery to perform a legislative act” (A. 33). A
“shield” implies an affirmative deferise,* as does “immu-
_ hity.” These terms readily correspond to declarations that (
_the Speech or Debate Clause is the source of “legislative - f
immunity” providing Congressmen with “a defense on the _l|
merits” and relieving them “of the burden of defending .
themselves.” Powell v. ‘MgCormack, 393 U-S. 486, 502, & 503,
“505 (1969) ; Dombrowski v. Eastland, 387 U.S. 82, 85;.( 196®r
Judge Hart’ s “constitutional shield” approach ‘to’ the-ease,
we submit, clearly negates the proposition that he “based” ee
' his decision upon the invalidity of the underlying statute. —
Rather, the District Judge rightly perceived a defense so
" strong as to eliminate the need to probe’ for weakness in
*the statutory underpinnings of the indictment.
7
_ The only pr ent ‘which the Government cari muster
” for its “inv Bteeta theory of jurisdiction consists ef a’ foot- -
- note passage in United States v. Knox, 396 U.S. 77, 79 n. 2
. (1969). As the Gevegnment reads Kno€. a judgment sus- -
aning the igs og S claim of egisiative ‘immunity must
* Judge ‘Hart's ennineiog? echoes a statement by his colleague, 2
Judge Youngdahl., jwho described the Speech or Debate Clause ‘as’
a shield against executive interference with the individual legisla-.
tor * * *." MeGovern v. Marts, 182 F. Supp. 343, 346 (D. D. C. 1960).
eee
” This theory is uncenvincing on several grounds: First;
. it assumes that the federal bribery statute ( as distinguished
. Appeals Act was invoked by this Court, apparently sua
for “full dress consideration” later the same term in United —
~ States. v. Sisson; 399 U.S. 267 (1967). Neither party to the :.
appeal suggested it. Fourth, Judge Hart’s opinion was_.
“based on the facts‘of this case,” .as. admitted by the Gov- |
€
4.
from the indictm@nt) reaches legislative conduet—amiatter |
which the District Court did not necessarily decide. Second, |
jurisdiction was apparently unquestioned in. Knox. Proba-
ble jurisdiction was noted, not postponed as in the present
appeal. Third, the “invalidity” branch.of the, Crimingl
sponte, in order to reserve the ‘ ‘motion in bar” provision
ernment (A. 33). This was. manifestly not so in Knox, 396
U.S. at 79 n.2.. Fifth, the authorities marshalled. in support |
of the Knox ‘footnote all dealt with civil appeals, making ,
Knox somew hat difficult to square with later admonitions
“that the Criminal Appegig Act should be construed strictly
against the Government's Tight of appeal,” United States v.
Sisson, supra 399 U.S. at 286, and that appeals by the Gov-
. ernment in criminal cases “are something unusual, excep-
tional, not favored.” Id. 291. See also Will v. United States,
_ 389 U.S. 90, 96-97 | 1967) ; Carroll v..United States, 354 U. S.
_ 394, 399-400 (1957). Civil appeals are not governed by con-
siderations * ‘supporting the canon of strict construction tra-
ditionally applied to this statute.”. United States v. Jorn,
400 U.S. 470, 476 | 1971). Finally, the argument which the
Government derives from Knox — that the federal bribery
~be’ treated as a secon that i federal nbesy statute ;
canriot be. constitutionally. applied to any member of Con-
- gress who accepts a bribe in exchange. a3 legislative. con-
auc (Govt. Br. 8-9). : ;
_—
statute was. “invalidated” as applied’ to appellee. — is little.
. more than a veiled admission that the District Court sus-
tained a defense on the merits.
1
To assume or en that the decisiori of the District Court.
was “based” upon the invalidity of the underlying ‘statute™
is not ehough. There must be * ‘an expression of opinion’
in some form as to manifest clearly whether its act pro-
‘ceeded upon a construction of the statute” before this Court _
may assume’ jurisdiction. United States v. Carter, 231 ‘Uz. S.
492, 494.495 (1913).% A direct..appeal will not lie wher:
the District Court has, considered the invalidity~or con-
struction of the statute but t has rested its decision on some .~
other ground. United ‘States: ». Borden Co., 308 U.S. 188,
193 (1939). J urisdit tion is limited to thosé cases where the
' dismissal is “based” solely upon. the. invalidity or construc-
tion of the undérlying statute.. United States v. Hastings, :
-296 U.S. 188,194 (1935). To so characterize the decision |
below ‘ ‘requires a-straining that is” not ‘permissible in the
light of’ the principles and history concerning criminal. :,...
‘appeals” under the Criminal Appeals Act. Carroll v.. United
- States, 354 U:S. 394, 405 (1957).
Cc. THE DECISION BELOW WAS NOT ONE SUSTAINING.
A MOTION IN BAR. .
‘Until the recent holding in United States-v. Weller, 401
- . U.S. 254 (1971), there was arguable support for the Gov-
-ernment’s position that this appeal falls within the “motion —
in bar” provision of the Criminal Appeals Act. A claim of
legislative immunity does bear a superficial resemblance _
__to a “tmotion in bar.” Weller itself places a “claimed. im-
munity because of prior self-incriminatory testimony or a
. hustice” Frankfurter once wrote =: “Other questions may. be im-
bedded in the ¢ase which may ev entaaily come to the surface. But
they are net fo: be brought’ to the surface here under the limited,
specific ‘review: given by the Criminal Appeals Act. It is to such
implicit queytions of pleading and to statutogy or constitutipnal ques-
tions not passed upon by a district court, that Mr. Justice Hughes
had reference w hen he said, *The Government's appeal does not open’
_the whole case." U nited States v. ita 332 U.S. 1, 15- (1947)
( concurring opinion ).
TB a,
statutory grant of immunity,” in the “metion: in bar” cate-
-gory: 401 U.S. at 260.10 The Speech ‘or Debate Clause, ©
if pleaded, “not. ‘only provides a defense on the merits but -
_also protects a' legislator from the burden of defending him- -
self.” Powell v. McCormack, 395°U.S. 486; 501-503 (1969).
See Dombrowski i v. Eastland, 387 U.S. 82, 85 (1967); Ten-
‘ney v. Brandhove, 341) U.S. 367, 377 (1951).. If the test of.
| “motion in bar” Jurisd ction was merely ‘ ‘whether the judg.
‘ment is one. which will end the case and exculpate the
defendant,” United States v. Mersky, 361 U.S. 431, 441-449 :
(1960)° (Brennan, J., concurring); then the decision below:
Blue, 384- U.S: 251 54 (1966) ; United States v. Hark, 320
| might be review ne by that standard. United States v.
U-S. 531, 536 (19.
267; 326-346 (agto) (White, J. dissenting).
_ Affirm (10-
alent of a iction in bar’. — ts Fésivinied to () matters
. See United States. v. Sisson, 399 US.
~
However, as we explained’ in our Mc ion to Dismiss or
of confession and - avoidance which (2y occur after the’.
events charged in the indictment and (3) nat admissible’
under the general issue. The Weller decision clearly rein-
forcés our. position: / The Court noted that it “has never —
settled on a definitive interpretation of what: constitutes a
‘motion in bar!” and then _announced tlie following
. standard :
A chatadteristic common 6 all these .[(common law]
_ definitions is that-a special plea in bar did not deny
that a deferidant had committed the acts alleged and
.that the act's were a crime. Rather, it. claimed that
” In two cases cited for this proposition in the Weller opinion,
United States v. H offman® 335 U.S.-77; 78 (1948), and United |
States v. Monia, 317 U.S. 424 (1943), yeither the. Court nor the
parties discussed the question of jurisdiction. . In each ¢ase, statutory.
immunity was not bound up with the issue of guilt or innocence, as _
here, but represented a- new development intervening between. the
_ offense and the indictment.
° -
o
nevertheless he couldnat be prosecuted for his crime
because of ,some. extraneous. factor. A situation in
. which the defendant claims that his act was simply’ nor’ -
a crime would be beyond-the scope. of this test. 1d.°401 _ |
U.S. at 260. (italics added). 4
Then the Court concluded: e
\
‘Testing the appellee’s motion to dismiss by. this o
standard, we think it plain that it cannot qualify as a _
‘motion in bar.’ The appellee did not deny that he |
refused to submit’to induction, but he claimed that his
condyct was not a crime because of the prior denial ‘of
counsel. He has’ not.confessed to a crime and claimed’
immunity from prosecution; he argues that he has com-
mitted no crime. -Id. 261. ( italics added ).
| “Although it ‘is perfectly. true, as : the eorecnincat con-
tends, that the appellee has claimed legislative immunity “
from prasecution, the element of “confession” is utterly .
lacking. The Appellee has consistently: denied ‘that his con-
‘duct violated any law; the maintains that he is charged —
with no act which may constitutionally. be made a crime,
even if such act occurred: ‘Weller did not hold: that an
“avoidance” alone would bring the case within the limited ,
confines of the ‘ ‘motion in bar’ provision.
‘Contrary to the Government's assertion, ' the. defense
under the Speech or Debate Clause does riot introducé. an
“extraneous faetor” of the sort depicted in Weller. It is.
not an intervening development which rescues an. sews
wise culpable defendant from criminal liability. The claim
asserted by the appellee denies the attachment of criminal
consequences to ‘his conduct but does not introduce new |
matter’ as is invariably the case with former jeopardy, par-
| don, running of limitations, a subsequent grant of immunity
arid the ‘other examples cited in the Weller opinion, 401 -
AU: S. at 261. It isa defense “ so intertwined with the general
\
A a
. .
+
‘2
é
“issue that it must be tried -w ith the general issue.’ 4 United
| States v. Sisson, 399 U.S. 267, 302 (1970). es
S
At cgmmon jaw, defenses” contemporaneous with thie
aes offense charged | were tried with the general issue: and...
"could not be taised by special plea in bar. See, e.g., Sorrells
v. United States, 287 US. 435, 452 (1932) (entrapment).
Indeed, it was corisidered improper to set up a defense —
admissible under the’ plea of not: -guilty. United States v. |
Sisson, supra at 301; United States v. Murdock, 284 U.S:
141, 150° (1931). “A special plea in bar is appropriate ~
-.where defendant claims former acquittal, former convic- :-
. 3 tion, and pardon but there is no ‘warrant for. its -use to.
. single out for determination in,advance of trial matters of - -
defense either on questions: of law or fact.” United States -
_v. Murdotk, supra 284 U.S. at 151 (citations omitted). See
also United States v. Weller, supra 401 USS. at 261°n.12;.
United States v. Sisson, supra 399 U. S. at 300.n.53. - * ~
Accordingly, the argument that this is “a classic case
of corifession and avoidancd” (Govt. Br.-10) cannot’ be sus-
tained. under. ‘Weller or arly other formulation:
THE" DISTRICT COURT PROPERLY SUSTAINED THE |
‘APPELLEE'S CLAIM OF’ LEGISLATIVE IMMUNITY |
'. UNDER THE SPEECH OR DEBATE CLAUSE. ~—
A.. THE ‘HOLDING IN JOHNSON. SUPPORTS. THE~~ ~
‘DECISION BELOW. : ‘
_ 1. On the merits; this case gives rise to a single “ques-
tion:. whether the ‘Speech or Debate ‘Clause provides a...
Senator with a complete defense -to a bribery prosecution- ;
, Necessitating inquiry into his deliberations and votes ipon’
pending legislation: Judge Hart, himself no > stranger to
‘eo ‘
¢ J “ & | ws * ov
, 4 .e os Me
- fi X * * 6" ‘ /
al
the Speech ' or “Debate Clause, a r Srded this queftion a as.
: having been answered in: the affirmative in United States. |
v. Johnson, 388 U.S> 169 (1966). He held “that the immu-.
_nity under. the Speech and Debate Clause of the Constitu-
tion, particularly in view of the interpretation given that
' Clause by the Supreme Court in Johnson, shields Senator -
‘ Brewster, constitutionally shields him from any prosecu-
‘tion for alleged bribery to perform a legislative act’. (A...
- 33). ‘Sinee’the controlling: principles of Johnson ‘were cor-’
_ rectly ‘applied below, ‘this Court’s task is completed and |
collateral argument is wholly beside the point: Under the -) «.
_ strictures ofthe Criminal Appeals Act, * this. Court reviews
judgments, not argumenrits assailing them,” United States
v: Shirey, 359 US. 255, 261 n.-5 (1959). :
“Johnson involved. ‘ar ‘conspiratorial: attempt: on the part
of a Congressrhan and others to. exert influence on the De-
: partment of Justice to obtain dismissal of mail fraud in-
| dictments, pending against officers. of'a savings and loan
company. As -part of the general scheme to influence the. *
Department, , - Congressman Johnson’. was charged with
o>
accepting payments in return for making a speech’ dh’ the:
by - receiving. substantial sums- in the - form of * ‘campaign
contributions” and “legal. fees’: ‘Rr his actions: United
States v. Johnson. supra 383:'U.S: at 172. Although. the Gov-
it ernment did. not: proceed under the: federal bribery statute,
_as it does here, it did undertake to prove that the payments
“were made simply to ‘buy’ the Congressman,” Ibid.
At trial the bulk of the case: dealt with Johnsen’ $ money
——— 0
'i See his opinion in Powe fs wv: McCor wiack, 260 'F. Supp. 354, 355
S , ; pot
e floor of the, House of Representatives, The prosecution’ :
: alleged that Johnson. was influenced: in his official capacity .
‘transactions: with’ co- -conspirators and with dealings with
,*(D.D.C. 1967), affd 395 F. 2d 577_,(D.C. Cir. 1968), aff'd in part |
1+ 395 US. 486 (1969)¢, eee et. ee
:
‘
: «
22 { .
; i
° ;
the Department of Justice. But evidence abeut his speech
caused the verys sort of inquiry — by the Speech —
or-Debate Clause.
The constitutional infirmity infecting this prosecu-
tfon is not merely a matter of ‘the introduction of in-
admissible evidence. The attention given to the
| speech’s substanee and motivation was, not an inci-
dental part of the Government's case, which might
have keen avoided by omitting certain lines of ques-
eae certain evidenee. The conspiracy
theory ded upon a showi ing that the speech was —
made solely of primarily to serve private interests,
ae _.and that Johnson: in making it was. not acting in good
'. faith.that is, that he did not prepare or deliver the »
; spéech in the way an ordinary. Congressman prepares
or delivers an: ordinary eeenen: Id. 176-177.
.
Reviewing the Clause in histarical perspective, and in
- the light of its two prior encounters ‘with it:!2 this Court
reaffirmed “that the legislative privilege will.be read broad-
ly to include not only ‘words spoken in debate,’ ‘but any-
a thing ‘generally done in a ‘session of the House by one of
‘its members in relation to the busines before it’,”’ and that _
“an. unworthy purpese does not destroy the pciene®
Id. 180. The immediaté question-was whether tthe Clause
yw
was broad enough to embrace “a criminal prosecution based
upon an allegation that a member of Congress abused his
__pasition’ by conspiring’ to give a perticular- speech in return
for remuneration from private interests.” Ibid.” The Court .
answered .in the affirmative, finding the Clause to. be un- ©
‘ mistakably a pplicable:
_However, reprehensible. such conduct may be, we be-
ue” lieve the Speech or Debate Clause extends at least. so
far, as to prevent it from being made’ the basis of a
criminal charge against. a ‘member of Congress of .con-
son 3 US. 168 (188).
»
dl
al Tenney t don re, 341 US 5, 367 (1951) : Kilbourn v. Thomp-
3 - a . oe
« . ’ .
-¢ = = .
. ™ e
—a * = K_
‘ Me _ — 23 —
-.-'gpiracy to defraud the United States by impeding’ the
. due discharge of government functions.. The essence
of such a charge in this context is that the Congress-
man’s. conduct was improperly motivated, and *.* *
‘that is precisely what the Speech of Debate Clause’
‘generally- forecloses from executive and Judicial in-
quiry. Ibid. (italics addéd).
After explaining ‘that’ legislative. corfduct- ‘cannot be made
the foundation of eivil or criminal proceedings against a .
disfavored Congressman, however corrupt his m¢tives, id.
183- 184, the Court summarized its decision as follows:
We hold that a prosecution under a general criminal
‘statute dependent upon such inquiries (into legislative
. acts or motives] necessarily contravenes the Speech
- or Debate Clause. We emphasize that our holding is
limited to prosecutions involving circumstances such
‘as those presented in the case’ before us. Our decisi@r / ;
does not touch a prosecution which, though as here
founded on a criminal statute of general application,
‘does not draw in question ‘the legislative acts of the -
_ defendant member ‘of Congress or his motives for per-
'« forming. them. -And, without intimating any view’ .
' “thereon, we expressly leave, open for consideration
when the case arises a prosecution which, though pos-
sibly entailing inquiry inte legislative acts or motiva-
tion$, is founded upon a narrowly drawn statute passed
by Congress in the exercise of its legislative power to
regulate the aonduct of its members. Id. 184-185
~ (italics added). :
t . .
~
2. The italicized sentence is the entire foundation of the ©
_ Government's appeal. Seizing upon what was not decided
in Johnson, and disregarding all else, the Government in- ,
sists that .its prosecution was “founded upon.a narrowly-:
drawn statute passed , y Congress’ in the exercise of its
legislative power to regulate the conduct of its members”.
Id. 185. It argues that Congress possesses unfettered con- |
<
.
: 24 . : . <
Aa
stitutional, power to enact ta statute attaching criminal | 7
~ sanctions to a member who may accept payments in ex-
change for performance of legislative acts and, that the. .
' federal bribery statute under which the appellee was in-
' dicted represents a “narrowly drawn” exercise of’ such as-
sumed power (Govt: Br. 10- ae
; Apart from the “narrowly drawn statute” argument, the
Government does not undertake to distinguish ‘this case’
from Johnson. It, plainly accepts’ the holding’ in Johnson
“that the Speech or Debate Clause bars a prosecution un-
_ der a-general criminal statute. (in ‘that case for conspiracy
—urider. 18 U.S.C. $371) which calls into question the legis
lative conduct of & member of Congress” (Govt. Br. 10-11)
‘(italics added). It concedes as it must under Johnson and .
more recent decisions that “[c]ommittee reports, resolu-
tions, and the act of voting are equally covered, as are
- ‘things genérally done in a session of the House by one of
its members iri relation to the business before it’.” (Govt.
Br. 11 n5).13 Nor does the Gov ernment deny that-a charge .
of “accepting a bribe” was central to ‘Johnson nd less than -
it is here. Ibid. Finally, if observes that ‘ ‘immunity con- .
ferred by the Clause was intended to prevent legislative |
intimidation by, or accountability to; other branches of
~ government” (Govt. Br. 20) (italics added). |
In short, the Government has no quarrel with Johnson.
‘either as a precedent. or as applied by the District-Court,
except for its “argument based upon the non- -commital
- dictum in John son —an argument which the District Court
did not reach. Having. decided in reliance upon Johnson
that the constitutional shield of the Clause -protects the -
appellee, the District Court found it unnecessary to ‘ex-
amine the sword of the statute to see w hether it was. “‘nar- .
13 Quoting from Powell eaMicConuace 395 U.S. 486, 502 (1969)
-and Aibourn v. Thompson, 103 U.S. 168, 204 (1881).
*/
i
25
rowly drawn”. Thus the question’ left open in Johnson
was not passed. fipon below and is here on direct appeal
as a matter of first impression for this Court, together
with a host of component issues which have never been»
resolved. If the question left open in Johnson still remains+ _
open, which should not be lightly assumed.!! it becomes
necessary to pursue the Government’ s inquiry. through an
_urfexplored thicket of constitutional provisions in which
thé most fundamental powers of ‘the Senate are rooted.
Then the legislative history, scope, and interpretation of
the. federal bribery statute must’ be ascertained and ap: °
plied.to an unprecedented set of facts. Finally, this Court |
would be obliged to decide — all without.benefit ofa pre-
cise décision on the point — whether this important Act of
' Congress as construed tonstitutes-“‘a narrowly drawn Stat-
- ute’ within the intendment of Johnson and, if so, whethér _
it can be squared with the constitutional prohibition ex- |
pressed in:the Speech or Debate.Clause.
2 >
These delicate topics need not be examined at present.
Johnson, whatever its limitations, does extend to all pros-
ecutions of unquestioned similarity. By leaving an open.
question in one case this Court is not obliged to tackle it
in another merely because, like Mount Everest, it is there.
This is especially true where the line of inquiry, if pushed
to its conclusion, ultimately’ requires a decision upen> the
constitutional validity of an Act of Congress — “the grav-.
est and most delicate duty that’this Court is called: upon
to perform.” Kennedy v: Mendoza-Martinez, 372 U:S. 144,”
159 (1963). In every appeal, but particularly in cases
'* The Speech or Debate Clause has been illuminated in two subse-
quent opinions. Powell wv. McCormack, 395 U.S» 486, 301-306
(1969): Dombrowski. Eastland, 387 US.. 82, 85 (1967). In-°
Powell, supra at 502- 03, the Court indicated, that the Speech or
Debate ‘Clause “not only provides a defense on the merits but also
protects a _legisk itor from the burden of defending himself.”
: ‘ 26
- : , e
brought up tinder the Criminal ‘Appeals Act, this Court's |
Gee limited to the particular question decided by ="
the court below.” United States v. Mescall, 215 U.S. 26, 31
'(1909). See United States v. Keitel; 211 U.S. 370, 398 |
(1908). ° ‘ ‘The Government's appeal does not open the.
whole case.” United States v. Borden Co., 308 U.S. 188,
193 (3939) .1°> Such limitations must be heeded. Open ques-
tions should be reserved’ for open cases.
*The holding of the District Court, we submit, properly
avoided a direct confroritation between an Act of Congress
and the Speech or Debate Clause. By adhering closely to
‘the precedents of this Court, which have uniformly. recog-.
. nized legislative immunity under the Clause without ques-
tioning the Statutory basis of. the underlying proceeding,
Judge Hart was acting in the best traditions of judicial
-. restraint. As this Court Has said on. countless occasions, it
is not a judicial function ‘ ‘to decide abstract, hypothetical
or contingent questions * * *-or to decide any constitu- -
mona! question in-advance. of: thehecessity for its deci-
sion.” Thorpe v. Housing Authority of. City of Durham,
— 393-U.S. 268, 284 (1969), and cases cited. As said in United-
See.nQ, supra. See also United States v. Vuitch, 91S. Ct. £294,
1300 (1971): United States v. Petrillo, 332 U.S. 1, 5 (1947). The
Criminal Appeals Act vests “this Court with. jurisdiction only %re-
riew tle, particular question decided -by the Court Delow for wifich the
statute provides. * United States v. Keitel, 211 U.S.-370, 398 (1908).
Under motion in bar jurisdiction, a determination as to the construc-
tion of the ‘federal bfibery statute or its validity as a “narrowly -drawn
statute passed by Congress in the exercise of its legislative power”
. would seem outside the scope of this Court's review. United States
“a. Aussel, 218 U.s. 601, 004 (1910); United States v. Mason. 213
Us. 115 (1909). see Stern & ‘Gréssman, Supreme Court Practice
43 (4th ed. 1969). “If so. then this Court's jurisdiction (assuming
its existence) extends only to the specific question whether the shield
of the Speech or Debate Clatise, as construed in Johnson, is also
controlling here. Cf., United States v. Mason.-supra.
7 1. OF,
- States v. Petrillo, 332 US. 1,5 (1947) 16 and repeated again
last term*® this Court has “consistently refrained from pass-
ing on the constitutionality of a statute until a case in-
. . volving it has reached a stage where,the decision of a pre-
cise cpnstitutional issue is a necessity.” Sanks v. Georgia,
401-U.S. 144, 151 (1971). If the principles of Johnson are:
_ controlling, as the. District Judge held, then this case does
not warrant the dangerous. excursion which the Govern-
ment invites, °
ca
2. There is really no difference between what was ex-
pressly forbidden by Johnson and what was attempted here.
The essence of the indictment is the allegation that the |
| appellee, in his eapacity as a United States Senator and as »
"*a member of a: Senate committee considering postal rate
legislation, “corruptly asked, solicited, sought, accepted,
received and agreed to receive” various sums from a regis-
fered lobbyist and another “in return for being influenced
. in his performance of official acts in respect to his action,
vote, and decision on postage rate legislation.” See counts ,
1, 3, 5,.7,.9 (A. 1-7).. Certadirfly Judge Hart’s application
of the Specch or Debate Clause to this indictment involved
- | no unwarranted ‘expansion of the principles articulated in
Johnson. The contrary is true. If'the appellee’s motion to
dismiss: had been ov erruled, ‘his legislative actiofts, votes,
and decisions on postal legislation. would nave been thrown -
open to searching inquiry in the courtroom — and “that is
precisely what the Speech . or Debate Clause’ generally
forecloses from executive and judicial inquiry.” United .
States v. Johnson, 383 U.S, 169, 180 (1966). Moreover, as —
this Court has said on two occasions since Johnson, “the .
| Clause not only provides a defense on the merits but also |
Pelee a legislator from the -burden of defending ual
18 6 Sac ken in the conte xi of the Criminal dppeis Act.,
s
3
“28 ae .
Powell v. McCormack, 395 US. 486, 502-503 (1969); Dom-
browski v. Eastland, 387 U.S. 82, 85 (1967) (italics added).
Forcing the appellee to stand trial: thereby" ‘making him,
. accountable. to a jury for his actions, votes, or decisions in
the _United,States- Senate-on ‘postat-rate Jegislation;-would.. 4
sabotage the whole purpose of the Clause — “to insure that
legislators are not distracted from or hindered in the ‘per-.
formance of their task by being called into court to defend
their actions.” Powell v. McCormack, supra at 505. 17
+. ever
Certainly Johnson affords no basis for the argu ent that
federal bribery prosecutions must be excepted from its
reach. To be sure; Congressman Johnson was not charged
under the federal bribery statute. He was, however, pros-
eeuted for bribery in fact if not in terms. The indictment |
itself, although not based upon the federal bribery statute,
charged him with accepting compensation for making a
__ speech — a bribe, in other words.!\ The charge was Cal-
. culated t to er proof that bribe payments “were made
The retical of a District Court. to dismiss the “bribed speech”
charges against Congréssman Johnson, United States v. Jolinson,
_ 215 F. Supp. 300 (D.. Md. 1963), came in .for schol: irly criticism
even prior to this Court’s-decision. “The: district court in Johnson
ee geld that the privilege dees netappty-when a bribe is involved because
it thought that ‘immunizing’ legislators who ‘sold’ themselves’ woetild
iromcally subvert the purpose of the privilege, namely, the promotion
of the independences of the legislature. However, the privilege. was
primarily. intended ‘to ‘immunize’. the legislative branch from inter-
ference Dy the executive and judicial branches. If the district cotirt’s
reasoning had prevailed, the judiciary would. investigate ‘legislative
motivation whenever bribery was allege ‘d Dy the executive. Although
the legislature wo: ld be protected ‘from’ interference by individuals,
its indlependeti e of the other two governmental branches would he
ere Note, 78 Harv. L. Rev. 1473, 1475 (1963). °
*To use. the Government's parlance, “Johnson invélved a Con-
gress. N's conviction ‘for conspiring to, impair: lawful: government’
functions >y.accepting a bribe to make a speech on the floor of the
~ House of Representatives. " (Govt. Bro 11 1.5) (italics added).
©
re)
a
29
simply to ‘buy’ the Congressman.”!%° No meaningful dis-
tinction exists between such conelusion in Johnson and the
language of the federal bribery statute, speaking ‘of re-
ceiving ° ‘anything of value * *.* in return for being in--
fluenced - ‘in [the] performance of any official act’’.-° .
re
nie eta . . e
From its very inception the Johnson case ‘proceeded as
_if it had. been brought under ‘the federal bribery statute.
The trial. and appellate courts differed over the Speech or
Debate” Clause, but both observed the plain relevance of
the federal bribery statute to the prosecution of Congress-
man Johnson. See Unitéd States. v. Johnson, 337 F. 2d 180,
. 189 (4th Cir. 1964),. reversing 215 F. Supp.- 300, 306 (D. -
Md. 1963).°' Both rulings, as the Government itself con- ;
tended in this Court, stand for the proposition “that, for
the purpose of determining the applicability of Article I,
Section 6, there is.no material difference between a pros- .
ecution for accepting a bribe and one for conspiring to de-
fraud the United States by accepting a ee "22
—
Not surprisingly, then, the Governntent ‘approaches this ..
- case with many » of the same arguments and policy con-
~ siderations tinsuccessfully advanced in Johnson. Indeed,
the Government presents -virtually the same question.23
In its petition for certiorari and brief on the ‘merits in-
Johnson, for exampie, the Government complained that
So ° ee 4 ;
! Enited States v. Johnson, 383 U.S. 169, 172 (1966).
“18 U.S.C. $201. : ; oe ,
“1 Se concluded the legal scholars who reviewed the decision of the
Comm of . Appeals. -See -e.g.. Note, The Bribed Congressman’s Iim-
niomity from Prosecution, 7> ¥ ace L.J. 335 ( 19653 ) : Note, 78 Harv.
t. Rev, 1473 (1965). . ;
i = Reply Briet of the United St: ted, at 6, Con ea Slate. ou, = Johnson,
>
383 a S. 169 (1966).
The only question presented in Joloson was w hether the Speech
oT ‘ean Clause “bars criminal prosecution of 4 a Congressman tor
accepting: a’ ‘bribe to make.a speech in ever ” Brief of the United
States, at 2 ra ey nited States v. Juolinson, 383 U.S. 169 (1966). In the ©
P | =, 30°
the reasoning of the Court of Appeals “might be -thought ‘
to bar any prosecution of a Congressman for bribery even
if what the Congressman sold was his vote rather than, his
speech.’ “1 The net effect, it argued, was to cast doubt upon
the federal bribery statute-* and to ‘undermine. the ¢onsti-
tutional power of wi Hg to provide for punishment of
bribe-taking members.~‘ This pe Government
to argue that the antecedent conduct accepting a bribe
can be \“‘questioned”, within the meaning of the Clause.
even if \the influenced conduct gannot2* * ‘In support -of .
these now-familiar refrains, ‘the federal bribery statute
was presented to this Court as a clear manifestation.
of the- intent of Congress to bring corrupt members _ be-
fore a jury.“ ‘The:-Government perceived in Johnson,
as it does here, a supposed “Congressional preference
- for criminal \prosecutien, rather. than a legislative proceed- :
ing,” thus placing ° ‘a Congressman'’s conduct under in-
quiry only ift a grand jury determines that there is prob-
able cause to believe that he’ has - Rees the. papue _
bbls s)
trust.
Therefore, this Court, in deciding Johnson, was by no
means unaware of its peta impact URoe future prosecu-
‘a distinguishing factor (Govt. Br. Ib n.d 5. ;
2+ Petition of United States for Certiorari, at 7, United States v-.
pOlessan, 383 US. 169 (1966). Brief, at 7-9, supra n.23. 0,
* Petition for Certiorari, at 7, supra n.24.
2 srief, sat 31, supran. os. / .
27 Petition for Certiorari, at 8, supra n. 24: srief, at 943 supra n.23.
** Petition for Cernorari, at 9. supra n.24:; tick 8) supra }. 23%
Repls Brief, at 4-5, .sufra n.22, 7 : ;
*’ Petition for Cértiorari, vat 9, supra n.24; Brick : at 46°37 / supra
n.23. The Petition added: “It gives accused legislatots «Denefits
of all the constitutional guarantees applicable in the trial of criminal
A ‘
>)
casés.. It provides | an impartial tribunal to protect an unpopular.
. Congressman from a politically motivated legislative tribunal. And
it proceeds, on the sound premise that in matters involving wrong-
’ doing outside the halls of Congress, the courts provide’a better forurh
°
present appeal the making of a speech in Johnson is not claitned to be
ao _ 3
tions. under thé federal bribery statute. Itvexpressly’con-
sidered — and rejected — the argument that the Speech
or Debate Clause does not touch prosecutions “founded on
“the antecedent unlawful conduct of accepting or agreeing
ta accept a bribe’.’” United States v. Johnson, supra, 383 © fc
_U:S. at 182...Observing that the Clause, ‘designed to a
~ vent accountability to other branches of. government, ‘
framed in the broadest terms,” id. 182-183, the Court a on
‘its conclusion upon an opinion in a century-old\ English ;
case30 “that the motives or intentggns of members of. either
House | cannot be inquired into by. criminal’ proceedings
with respect to anything they may do or say in the House.”
_. . Id. 183 (italics added). This is hardly the sort of language
which opens the door to bribery prosecutions under one
= statute while closing it as to another.
The thrus@of Johnson is to eee, the examination of
a legislator’s motives under the guise of a bribery prosecu-
tion, under any “general criminal statute: dependent upon
such inquiries * * *.”.. Id. 184. The opinion does not exempt
the federal bribery statute, ‘with its all- ‘inclusive applica- °
tign to any “publig official”. Because of the central import-
for jetecuiaine uilt or innocence... Petition for Certiorari, at 9-10.
£ es
( This peice jusahcanon, has been resurrected here. “See Govt.
Br. 27-29.)
' 8° Ey parte Wason, L.R. 4 OB. 373, 577 (1869). Oi greater
significance to the present appeal was the footnote discussion (383 —
U.S. at 182 n.13) of Strode’s Case, which involved a criminal
prosecution in 1512 of a member of Parliament, for: introducing legis-
lation in which he had a financial interest.. To our knowledge no
other member of Parliament (much less.any member of. Cohgress
prior, to: Johnson) has since been prosecuted in a court ef. law for
bribery’ or -corruption in connection’ with his legislative duties. As
the discussion in Jolinson makes clear, Parliament later teleased,
Strode by a special bill declaring his conviction to have beeri utterly
void and of no effect. The law of Strode’s Case gras legislatively
adopted in 1667 by the formal resolutions of both Houses of Parlia- |
ment. The criminal prosecution of a member for his graft- induced |
vote would be. ais today.
«
° "©
-ance of the federal Sribery. statute ‘to ‘the Government's.
- appeal, and..its oft-repeated. apprehensions as. to: its sur- ~~
vival, it w ould have been a simple matter for this Court to
have identified itas a “narrowly: drawn statute ‘passed by.
‘Congress in the exercise of. its legislative power to regu-
late the conduct of its) members.’ Ide 185., That statute
might have been contrasted’ with/the statute under which
“ Congressman Johrigon was actua ly prosecuted, as ‘if to as-
sure. the: Government that it had a clear Alternative for
prosecuting Congressman without running afoul of *the
' Clause. ,But the Court did not/draw any such distinctions, .
. + not because the federal bribery statute was not a factor in
| Johnson, ut because no such dis@nction \ was warran ed
- We. respectfully submit that thefederal bribery statuté
oe should, not be treated as a wedge between this case and ©
‘Johnson. It ill-behoovés- the GovérnmeRt to disavow ‘on
_ this occasion the comparisons ‘which it so deliberately drew |
a pif Johnson; If the mere difference in labels*! permits the
vernment to prosecute the’ same ‘charges under one |
ce statute. but not the other, then the Speech or " Debate Clause ‘,
“as” ‘an. important protection. of the indepehdencé and in-
tegrity of the AUIS id. 178, is a ae one indeed. :
. Few provisions f our Constitution aré as , sparsely liti-
“gated as. that Clau ‘Id. 179. And yet ‘this is the sixth
time — the fourth during the last five years — that the
Clause has been here for a new reading. We believe that.
this Court has already. spoken with ‘clarity and finality so. ,
that the specific application of its tonnes may be safely *,
\@Bhis Court said-in Vew York Times Co. v. Sullivan, 376
LES. 254, 269 (1964), cited’in Johnsoy at 383 U.S. 182 n.12: “Like.
insurrection, contempt, advocacy of unlawful.acts, breach of the peace,
~ obscenity, solicitation of legal husimess, and the various other formulge-
for’ the repgession of expression that have been challenged in this:
Court, libel can caim ‘rio talismamic. immunity from constitutional:
limitations.” So also, bribery. pe a
ss ccconnited to the wisdom of Federal judges, ‘Havtig: relied. .
-
upon Johnson, the District* Court, should be affirmed on
* that basis without éngaging in a reappraisal of matters so :
‘recently. considered. ice Le an
B. THE: SPEECH OR DEBATE ‘CLAUSE ARS JUDICIAL INQUIRY
‘INTO MOTIVATIONS OF'A SENATOR'S VOTE OR’ DECISION.
1, A fundamental, lack of appreciation for the Speech or _
Debate Clause; as a vital check upon the executive and
judicial branchés, pervades.the Government's entire, posi-
tion. This is nowhere more evidertt. than in: its’ interesting,
well-researched. but unriecessary, monologue upow* th@ his-
toric efforts an Parliarnent-and in the colonial assemblies .-
‘to secure plenary authority. to discipline members for mis .
behavior {Govt. Br. 12-22). We need ‘not look - beyond
Article I, Section 5 of the Constitution to find that either
House is ¢lothed with power: to “ ‘punish its. Members. for .
digorderly Behavior.” And we have very little. doubt that - ;
either House of ° ‘Congress may discipline. a member caught
3 selling. bis vote for financial reward. 32
What we cannot ‘understand: and cannot accept, is ‘the
strange argument that it wasa dual functiori of the Speech
or Debate Clause to- curb legislative abuses as. well- as to
insure legislative independence. On one hand; the Govern- !
ment declares that the “immunity conferred by’ the Clause
» ‘was intended to prevent legislative intimidation by, or” |
‘ accountability © to, other branches of government” (Govt. 4
Br. 20). It éndorses thjs Court’s statement that the _
“insures that legislators are free to represent the ihterest
, of their constituents without fear that they will bé later
called to task in the: courts for that representation.” Powell,
v. McCormack, 395 U:S‘ 486, 503 (1969). On’ the .other,
hand, the Government points to the corruption. and chi-
——— ye
32 See notes 36 and se infra.
-
er
34.
-canery w hich poisgned the halls of eighteenth century
Parliament: the abuses of lea parliamenti: the:amenability —
of venal members to bribe-taking: the praliferation of privi- °
leges, legitimate and bizarre; the John Wilkes episode. The
“second step in its argument is an assertion that the Framers
“were fully aware” of “the — of unfettered’and cor- | —
rupt,use of legislative power” ’ and “were acutely troubled
-. that this power could. be grossly abused and: corrupted”
and worried about legislative | encroachment (Govt. Br,
19- 20). We believe » that: these concerns are plainly mir-
rored in the Section 5 power of each House to * ‘punish its.
- Members for” disorderly: Behavior and, with the concur-:
rence of two thirds, expel a member,” *
The ‘thidy step consists of an assertion that the apprehen- en
- sions of the Kramers over legislative abuses ‘coalesced in
the adoption ok the Speech or Debate Clause." Govt. Br.
20) As'’we shal\ demo strate, the Clause was adopted
despite - — not because - \ of such abuses. Indeed, this
Court. has found it: nee that legislative freedom was
protected by constitutional framers at a time when even ,
_ Jefferson expressed fear of
. ‘Brandhove, 341 U.S. 367, 375 |
fourth step of the Government ar
‘a Shield of legislative immunity is trans
ment of affirmative power, not nierely in™the hands of .
“either House” but available for, use by Congress* Asaree.
islative excess.” Tenney °.
ar). AS we mdve into the
ment, the -Clause as
ed into an instru-
Thus we are: told:
In. providing that speeds or debate in Schaee House.
‘shall not be questionéd in any. other Place,’ ‘it was
thus not’ simply meant’ that Congress* coul . impose «|
sanctions on the unruly législator’or on' one whe vio-
ylated its. ‘rules. of behavior, It-was also meant that
L Congress itself could punish a corrupt ‘and venal mem-:
ber — that it could exercise a _power that had always
1 ee ——been one of the essential factors in the overall struggle
: .
= .
. ° “
es : .—
4 7 . Fs , *, . “—
‘
35
-for ‘legislative freedom of debate. (Govt. Br. 2T)
(italies added). ‘ |
. No aid only: is cited for this nov vel ela , Speech °
or Debate’ Clause, much less for the purely speculative
conclusion that “the Framers. clearly recognized that Con-
. gress would have the authority to punish its members for
-acts of -bribery connected with legislative duties.” -( Govt.
Br. 22). We do not suppose that the Framers, distrustful
| of unicameral legislatures,*3 woduld.have reserved specific _.
_ authority in “either House” inadvisably in Sections 5 or 6
of the Legislative Article.*! But assuming that the Framers
considered punishment of acts of legislative bribery at all,
the conclusion which the Government attempts to‘estab-
lish as the final step in its syHogism is utterly devoid of .
any foundation in history, logic, or precedgg@t. The fallacy ~
‘. of such conclusion is exposed by its very Statement:
It is equally sound to conclude that the Framers had
no objection to, and perhaps even deemed desirable,
congressional use :of its: legislative authority» under :
Article I, Seetion. 1, and the: “necessary: and »proper
‘> clause”, Article I, Section 8. to enact a statute specifi-
cally providing for a trial in the courts of: a member
who takes a bribe: such a statute avoids’ the likelihood.
of a trial influenced by popular*clamor and. the lack of |
impartiality necessarily inhereht ‘in a legislative body
where “all the passions w hich activate: a multitude”
_. may be’ felt. iGove Br. 7 5 wot ye ;
ee —s
The: “Federalist. 1 Now 31, 62 and 63 (Haintiton or " Madison)
(Ford ed. 1898) at 343, 412-43. 419, 423-424",
*4 Section 5 provides that “each House” shall judge the electivns, :
returns and: qualifications of its own-members; that ‘eich House” ’
* my ‘provide penalties to cbmpel the attendance pi absent members :
Mhat “each Mouse” may authorize the rules of ‘its proceedings, punish
members’ for disorderly behavior, and expel members that “each
House” shall keep a journal of Its proceedings ; ‘that “Weither House"
shall adjourn without the consent: of the other.
1 BR
As a matter of historical accuracy, the concept of “a
trial in the courts of ,a member who takes a bribe” would
-have been completely fereign to the Framers. Such a trial
would have been w ithout precedent. -Bribery, corruption.
and venality are evils as ancient as Parliament itself. Never-
theless, in the entire history. of Parliament, there ‘is not~
one recorded instance in which a member was hailed be-
fore a court of law ona ehaege of bribery in the perform-
ance of his legislative duties< Certainly the Government
cites no instance and we are unaware of any." Of course,
bribe-taking members have been punished, severely and
committed to the Tower for- their misdeeds, but invariably
upon the judgment of Parliament itself. - Moreov er, a
-charge. of bribe-taking by a legislator was not an’ offense
The Government cites three Commonwealth cases as holding
“that a legislator was amendable to trialend punishment by the courts
for. taking & bribe in connection with -his official duties.” (Govt. Br.
1s. n.9). Aetually, two of the-cases involved the prosecution of non-¢
legislators for attempting to bribe members of local parliamenty.
Reaina v. White, 13 NSW. Sup. Cr. 322 €1875) : Reging v. Buntina,
7 Ont. Rep. 324-1883). In the third case, Rex 7%. Boston. 33
Commw. E.R. 386 (19223), a legislator-was convicted of aecepting:
bribes,-but for non-legislative conduct.in indueing the government to
purchase certain estates. In FV /ite and Roston the privilege was not
considered: in Bunting the bribers tinsuceessfully attempted to plead
the privilege of the legislators. This Court has acknowledged all three
_ cases as “dealing with the general ‘question of liability of -legist: Hors’
- for bribery in) distinguts hable contexts." United States v. Johnson,
883 US. 169; 180-9 (1066). See Note, 78 Harv, I. Rev. nw,
. “— (1965 ).» :
; *8 For example. in 1677, John As shburham was: exjtelled for receiy-
itig 300 pounds. from French merchants for business done ip the
» House. In 1694. 2 member (Guy) was committed: to the Tower of
London for taking « bribe of 260 guineas, In the’same .vear, Sir
fohn Trevor was ene guilty. of a high crime and misdemeanor’
in having, while Speaker of the House, accepted a gratuity of 1000
guineas from the. City of London after passage of the Orphans Bill;
and was expelled. Another member (Hungerford) was expelled tor
receiving 20 guineas for-his service as ¢hairman-of the committee -an
‘that bill. May. Treatise on, the Law, Privileges.. Proceedings. and
Usage of Parliament 114 et seq. (14th ed. oe 1946 ).
.
known. to the commion law, at least not in’ 1787 when the
Constitution was drafted. Blackstcne; perhaps the most,
respected legal commentator of the pericd:** limited: the
“crime of bribery -to occasions “when a judge, or other
person concerned in the administration, of justice takes
-any undue reward to influence.: his behavior in Office.’ co
Coke likewise regarded bribery as an offense. committed
_by judges: “And, contrary to the insinuations of the Gov-
ernment, the Framers and their contemporaries were not
so troubled by the spectre of legislative corruption as to.
make it an indictable offense. When the First. Congress
met a few years after the Constitutional Convention. the
sole expre@ion of their concern.with bribery was a Statute,
reserving criminal sanctions for judges who took bribes
in exchange for an “opinion..judgment or decree.” Act. of
April 30, 1790, Section 21, 1 Stat. 112. 117. The great awaken-
ing of 1853, When Congress is said to have made it a crime:
for members to accept bribes.” occurred years ‘after the
death of the last surviving participant in the Convention.
As a matter of logic. it borders .on the: incredible to as-:
sume that the protection which,the Framers secured to’
legislators with one hand they surrendered ‘with the other.
After reserving to ° either House” the right to Pumsi its
Po Piccaicues Commentaries are necepted™ as .the most’ satistac~
tory expostuion of the common-law of England. At the time of the
adoption “of the Federal Constitution, it had been, published about
twenty vears, and it has-been Said that more copies of the work had
heen sold in this country. than in England : go that undoubtedly the
Framers of.the Constitution were fanili: inwith it.” Schick v. United
oats, 195 Us. 63,-69 C1904), |
is Blackstone's Conimentaries 139 (Sth'ed. W773). ee
“Beihery is.a great MUSpristan, When ay tain in qidicial pl
takes any fee or pens lan, robe, ar ee gatt. reward or broc: ige of
any person, that hath to do hetore hina Invanyv way, tor doing hrs
othee. orby color of his office, but of the thirig only; unléss it be meat
amd drink? and that of small value.” Coke, 3rd_ Inst. 143 «1 1797).
"Net of February 26, 1853.’c. 81010 Stat. 170, 171, ,
oat,
38.
-Members.for disorderly Behavior” in Section 5, the Con-
‘stitution states an unequivocal prohibition: “for any Speech
or Debate in. either House they [Members| shall not. be
questioned in any other Place.” These clauses are con-
. sistent with one another and were intended to be construed
~ harmoniously.#! In other words, either House could punish
_its members but. for any activity covered by the Speech
or Debate Clause, they were not: to “be questioned in any _
- other Place.”. Since the Framers saw fit “to prevent in--
timidation by the executive and accountability before a
possibly Hostile judiciary,” it can hardly. be assumed that
the same Framers “had no. objection to and perhaps even
. deemed desirable” a system enable cesar to be
“questioned” in the courts. 43 |
+ It is as a matter of cdnstitutional precedent; boweven,
that the Government's argument is most wanting. Indeed,
it is so antagonistic to the fundamental purposes of the
Speech or Debate Clause and to the policy declarations of
this Court that: it is difficult to, understand how it can be
seriously-advanced. What'the Government seeks from this —
Court is a holding that the vote, action, and decision of a
Senator may, be questioned in a court of law; ‘despite the .
constitutignal prohibition, if Congress permits it by statute.
In such a situation, we are informed, “|h]is conduct is sub-
ject to censure only if a grand jury returns an indictment
charging betray: al of the public trust, and the impartiality
of the judicial “tribunal: protects him-from a politically
motivated queens (Govt. Br. 29) -
——& —__ - — -—---—-- --
ine ohe ns wv. [irginia, ‘6W ‘heat. 264, 303 (1821).
42°70 pited States v. Johnson, 383 U.S. 109; 18} (1966 ).
*8 Govt. Br. 22. : : “
“4 This is the identical theme heard in. Johnson. See ‘text accom-
panving n.29, supra.
. g.-
pee ee,
It is aur firm conviction ‘that the Framers deliberately
excluded the grand jury and ‘the judicial tribunal from the
’ legislative arena. We believe that the Clause, as construed
by this Court means simply that the conduct of a Senator
is “subject to censure” in the Senate and “shall ‘nct be
questioned in any other Place.” ;
2. Whatever. doubt, may haye at one time existed. as to
the origins, development and scope of the Speech or Debate
Clause has been settled by the repeated decisions of this
- Court. Powell v. McCormack, 395 U.S. 486, 501-506 (1969):
‘Dombrowski v. Eastland , 387 U.S. 82, 84-85 (1967) ; United.
States v.-Johnson: 383 U.S.’ 169 (1966);.Tenney v. Brand-
hove, 341 U.S. 367 (1951): Kilbourn », Thompson, 103 U.S. —
168, 200-205 (1881). Academic forays. into Parliamentary :
history can add little to the present meaning of the Clause..
Having been examined by this Court on five previous
occasions,’ the Clause now bears the indelible gloss of its
decisions. ; |
The Spéech or Debate Clause is probably the most im-
portant guarantee of legislative independence contained in
- the Constitution. As such, it is a keystone of our tripartite .
system of government and “serves the additional function
of reinforcing the separation of powers ‘so deliberately
established by the Founders.” United States v. Johnson,
supra, 383 U.S. at 178. “The Speech or. Debate Clause.
adopted by..the Constitutional Convention withaut debate *
or opposition, finds its roots in the conflict between Parlia-
ment and the Crown culminating in the Glorious Resolution
of 1688 and’ the. EngljsH Bill of Rights of 1689.” Powell v.
. “McCormack, supra. 395 US. at 502: ‘The importance which
the Framers attached: to its ‘prov isions is summarized in
| Johnson:
40. "4
This formulation of 1689 was the culmination of a .
long’ struggle for. parliamentary supremacy. . Behind -
these simple phrases lies a history of conftict ‘between
the Commons and the Tudor and Stuart monarchs dur-
ing which successive monarchs utilized the criminal
‘and civil law to suppress and intimidate critical leg-
islators. Since the Glorious Revolution in Britain, and
throughout United States history, the privilege has
been reccgnized as an important protection:of the in-
dependence and integrity of the legislature. See, é€.g.,
Story, Commentaries on.the Constitution $866; II The
Works of James Wilson 37- 38 (Andrews ed. 1896).
United States v. Johnson, supra at 178. 3
The latter sources are enlightening because the. authors |
were distinguished members of this Court during its early
days. Justice Story considered legislative freedom a “great
. and vital privilege * * * without which all ‘other privileges
would be. comparatively unimportant or ineffectual.)
In his own evaluation of the Clause, Justice Wilson thought -
it “indispensably necessary” that every legislator “should
‘enjoy the fullest liberty ‘of speech. ‘and that he.should be
protected from-\he resentment of every one, however
_ powerful, to whofn the-exercise of that liberty may occasion,
offense. 46
The legislative privilege is thus regarded as “one mani:
festation of the ‘practical seturity’ for ensuring the inde-
" pendence ‘of ‘the legislature.” United States v. Johnson.
aap as US. at 179. Because of its. importance, “the
45 Quoted in Kilbourn ¢. “Thombsonr 103 U.S? 168, 204 (1881).
eis Cuoted in Powell v. McCormack, 395- U.S.-486, 303 (1969).;
Tenney v. Brandhave,.341 U.S. 367, 373 (1951). It is noteworthy _
that Justice Wilson was not only one of the first justices appointed to
this Court but. also ‘served-in the Constitutional. Convention as “an’
influential member of the Committee of Detail which was ae
for the provisiot » Federal Constitution.” Ten mney . Brandhow
‘supra.
-
; Ya 7 a es
‘legislative privilegé. will be read broadly to effectuate its
purposes * * *.” Id, 180. Liberal treatment has been ac-
corded this provision almost from its very inception. In
Kilbourn v. Thompson, 103'U.S. 168 .(1881), this Court
adopted. the language of an 1808 decision which it regar® .
-as “the most authoritative case in the country on the co!
_.. struction of the provision in regard to freedom of debate .
in legislative bodies, and being so early after the formation
of the Federal Constitution, is of much weight. ” Id, 204.
The authority so revered is Coffin v. Coffin, 4 Mass. 1 | 1808),
which as the best contemporaneous source on the scope of -
the. Clause, is here quoted at length:
-* * * [T]he article ‘ought not to be construed strictly,
but liberally, that the full design of it may be an-
swered. I will not confine it to delivering an opinion, .
uttering a speech, or haranguing in debate, but will ex-
tend it to the giving of a vote,\to the making of a writ-
ten report, and to every other act resulting from the
nature and in the execution of the office. And I would .
define the article as securing to every member exemp-
tion from prosecution for everything said or done by
- him-as a represeritative, in the exercise of the functions,
of that office, without enquiring whether the exercise
was regular according to the rules of the House, or |
irregular and against their rules. I do not confine the °
member to his place in the House: and I am satisfied.
that there are cases in which he is entitled to. this
' privilege when not within the walls of the Rep ceenta
- tives’ chamber. Ad. 27.47 - !
*" The same passage was also queted i in TP enaey v. Rrandhove, 341
- U.S. 367, 373- 374 (1951). Pertinent*to the present Case is another
statement by Chief Justice Parsons: “If a member. * * * be out of
the ch: imber, sitting: in committee, executing the commission of the
House, it appears to me that such member is within the reason of.the.
“article and ought to be considered within the privilege, The body of
which he is a member,’is in session, and he, as a member of that
body, is in fact discharging the duties of his ‘othice. “He ought,
therefore. to be protected from civil or criminal prosecutions for
. everything said or done by him in the exercise of his functions asa.
_
These words, spoken within a few years: after ratifica-
tion of the Constitution, hardly reflect the terrified .fixa-
‘tion with legislative tyranny which the Government .at-
tributes to the Framers. Like Justices Wilson’ and Story,
Chief Justice, Parsons of the Supreme Judicial Court of |
Massaghusetts was doubtless ‘aware that Parliament Had.
weathered corrupt practices during the past century. Nor
were they or their comtemporé dries: blind to the abuses
which had prev -ailed in England under the lex parliament,
which allowed members, their retinues, their servanis, and
their goods to enjoy a multitude of immunities from ordi--
nary legal restraints w hile new “pr ivileges” were. created
at the will of Parliament.'> The Framers were careful to
abelish all prerogativés of mischief and oppression, while
retaining the inherited privilege of speech and debate. a |
This most vital privilege of all “was taken as.a matter of .
course” by -the, Framers, Tenney v. -Brandhove, 341 US.
367, 372 (1951), and -’ ‘adopted by the Constitutional Con-
vention without debate or opposition.” Powell’ v..McCor- ¢
: mack, 395 U.S. 486, 302 (1969); United States v. Johnson,
383 U.S. 169, 18f 11966). — me
Thus ‘it is significant that legislative freedom was SO
carefully protected by constitutional framers at a time
representative in committee, either in debating, in assenting to, or in
draughting a.report.- Coffir v. Coffin, 4 Mass. 1, 28 (1808). =
‘For exaniples,.see Watkins v. United States, 354 US. 28,
IRS8-191 (1957),
{While the Prarhers “of the Corsritction did not adopt the lex
et Couaeeds of the English Parliament. as.a whole, they aie
porate such parts of it. and with such privileges of Parliament,
they thought proper to be applie -d to the two Houses of Congress. *¥*
One of these *|privileges] is ‘that the freedom of speech and debates
and proceedings in. Parli: iment, ought not.to be impeached or ques-
_tiorted in any’ court or, place oyt of- Parliament.” Kilbourn. v-
Thompson, 103 U.S. 168, 201-202 (TR81). : a
*’ Ina letter cited by thé Government Brief at 21, Jefferson wrote
in 1789 that “[t]he tyranny of the legislatures is the most formidable
.
when even Jefferson expressed fear of legislative excess."
“43
Tenney e, Brandhove, ‘supra a 375. It is. equally signifi-
cant, we.think, that eminent. American jarists wise to the
ways of Parliament should have been adament in granting .
“exemption from prosecution for everything said or done”
ina legislative capacity. Coffin v, Coffin, supra at 27. If
“specific obstacles had to be erected against the possible’
abuse of power by the Congress”.- (Govt. Br. 21), such ~
obstacles were not to be placed by judges giving a narrow
construction to the-Speech or Debate Clause, © *
That all “conduct relating to the functioning of Congress
comes within the sweep of the Clause has nevef' been
doubted by this Court. In Kilbourn v. Thompson, 103 U.S.
168 (1881), after quoting” the above passage, from Coffin
and declaring its views to be sound, this Court announced .,
the rule which it has observed to, this day: .
It would be a narrow View of the cohstitutional pro-
vision to limit it to words spoken in‘debate. The rea-
son of the rule is as forcibie jn its application to writ-
dread at present and avill’be for long vears,” This was: ‘not Jefferson's ©.
kist word on the subject, However. *Wherr: a grand jury at ‘Richmond’
publicly criticized members of Congress in 1797, ‘Jefferson fired off
a petition.to the Virginia Hotse of Delegates ; ‘that in order to give.
to the will of the people the influence it ought to have, and the-in-
formation which may ‘enable them to ee it. usefully, it was a
pert Of the commosm law, adopted as the kaw ofthis land, that their
represengatives, im the discharge of their functions, should be free
rom the cognizance or coe reion of the coordinate lak pees, Judiciary
anid executive * * *) °° .
“That * * * for the Judiciary to interpose din \the legis: itive
‘department between the consfituent and his representative, to control
‘ei in the exercise of their functions or duties towards each other,
* *.* to prit the eae itive Into jeopardy of ‘criminal prosecution,
of vexiition, expense, and punishment’ before the Judiciary * * * is
to put the legislative department ander the feet of the Judiciary, is
to leave us.. indeed, the shadow, but to také away the Substance of
representiition, which requires essentially that the representative be
as free@is his constituents would be: * *°*= and is the more vitally
- dangerous when it is considered that grand jurors are selected I
officers nominated and holding their places at the will of the Execu-
tive,” 7 Writing of Thomas Ie fferson 138 ( Ford ed. 1898), quoted
in Luce, Levi slati : Assemblie s S16-318 | 1924).
'
7
, 2
“4d
i
"a
4
“
a
; . 44
; ten reports presented | i? that Body by its committees,
' to resolutions. offered, which, though. in writing, must
be’ reproduced in speech, ‘and.to the act of votin
whether it is done vocally or by passing. between the
tellers. In short, to things generally done in.a session
of the House by one of its members in relation to the
busifess before it. Id. ‘204.51
See also Powetl ‘y.-MeCormack, 395 U.S: 486, 502 (1969); °
Dombrowski v. Eastland, 287 U.S. 82, 85 (1967) ;. United °
‘States v. Johnson, 383 U.S. 169, 179 (1966); Tenney v.*
Brandhove, 341 U.S. 367, 376 (1951). In sum, the Clause
covets all “acts done’ within the a of legislative aa |
tivity. ” Tenney v. Brandhove, supra.”
: Within the coverage of the Clause the jurjsdiction of «|
\. Congress is exclusive.. The concise constitutional declara- ».
\tion that “for Speech or Debate in either
[miembers] shall not be : anaes a in any other :
°
imperative — ‘they shall not. be questioned ‘in. a ;
Place” It concedes ‘no exception. The Clause praclaims
the exclusiv competence of the House to inquire into the
legislative er Representatives and likewise the Senate
to inquire inté*the legislative acts of. Senators. They may
not be questioned, elsew here. »
This blanket ‘cohibition was designed | i“ to prevent in-
’ timidation by: the ‘executive and accountability before a
possibly hostile judiciary.” United States v. Johnson, supr¢
at 181. It is so conceded (Govt. Br. 20), but with the im-
= Kilbéurn’ itsalt anptied the Clause to disallow an action against
’ Congressmen based upon theirsyvotes in favor of a resolution com- ,
manding the arrest of the plaintiff for contempt. Members of legis-
. lative bodies. are held to be absolutely immune from’ personal liability
“for votes cast by them, the underlying motives being irrelevant to the
oe enjoyment of sych privilege. See, e.g., Shellburne, Inc.
v Castle County, 293 F. — 237, 242-243 cD: wet. 1968), é
— or cases cited.
‘“*
i
»
plied caveat that the executive may intinidate: and. the
courts may demand accountability if Congress enacts “a
_ statute specifically providing for a-trial in the courts of a
member who takes a bribe” connected with his legislative:
ects (Govt: Br. 22). We déal elsewhere with this conten-
tion. but its fallacy appears from the prohibition itself.
Legislative power is subordinate to the Constitution and
"may not oveysjde’ an express Constitutional prohibition.
Marbury v. Madison, 1 ‘Cranch 137 (1803). And if the Con- °
- stitution ‘says that: members “shall not be questioned in ..
any other Place”, then “they need not answer in any other
99) 2
_ Place, including, courts.’
3. The prohibition of the Clause is. especially directed
against inquiry by: the. courts. This concern is clearly re-
flected in tracing: the ‘geneology of the Clause. -
The present version of the Clause ‘was formulated ,
by the‘Convention’s Committee‘on Style, ‘but the origi-
nal vote’of approval was of a slightly different formu-, ae
- lation which repéated almost verbatim the language :
of Article V of the Articles of Confederation: “Free-
dom of speech ‘and debate in Congress shall.not be im”
‘ peached or questioned in any court, or place out of
‘Congress “ * *.”: The language of _that- Article: of
which the present Clause is only a slight modification, °°
is in turn almost identical to the English Bill of Rights
of 1689: “Thatethe Freedom of Speech and’Debates or
Proceedings in Parliament, ought not to be impeached
or. questioned in any Court or Place, out, of- Parlia-
ment.” IW. & M., ‘Sess. 2, c. 2. “
_ United States’ v. Johnsdn, 383 US. 16
(italics added }. ’ i . {
Freedom from judicial inguiry ‘ ‘was deemed $0 essential
| for representatives of the people that it w as ‘written into —
Writs “(1966 )
Se ee
“Opinion of Burger, J. (now Chief Justice ) in Po: vell &¥. McCor-...
mack, 395 F.2d 577, 002 (D.C. Cir. 1908), aff - in. ‘Part. (395 U. >.
486 (1969). : oo
: . .
> ‘
” 6 ‘ As. oe
- a’ : . . .
“ - ee = * ;
\ 4, vs
i 8 . d
. - a . . . .
é ‘ . . 4 > ; 46
. . “ye ns, cn. "a
° ‘. ole Y . ‘
“tion.” Tenney _ Brandhove, 341 US. 367, 372° (1951). “So:
did. the’ States rect definite. barriers to all judicial tm-
~peachment -af Idgistators, Article ‘VIII of the Maryland
Declaration of ights. of 1776 proyided that legislative free-
‘dom “ought h¢t to, be impeached or questioned in any |
‘otheecaurt or/Judicature”. Utalies added ).: Equall¥ specific.
i cing judtcial interference was the. Massachusetts
: Bill of Rights of 1780 (Article XXI1) and -the: Conistitution °
\ F a ‘of New ‘Hamp: hire of 1784 (Article XXX).° Each declared |
‘that the. “free om of. deliberation, speech’ and debate,. in.
* either house of theJegislature, is so essential. to the- -rights.
. of.the. people; that. it cannot be the foundation of any: ae-
me
»~ . 4
'. cusation ‘or prosecution; ‘action or: complaint, in any other’
Court. or piace 1 Whatsoever”’ ( italics added ) .*3. These con-
. _ stitutional préhibitions, are ‘indistinguishable . in eet
= hove, supre at 372: .
_ from’ the: federal Clause. As‘this Court has observed, “the.
“ general idea in all of. ‘them, however ‘expressed, must ‘have
sheen the same, ‘and ‘must have been in the minds of the -
ries of* the Constitutional Convention.” -Kilbourn v.
Thompson, 103 U:S. 168,. 202- 203. (1881). All: had their’
source An, the: same struggle for. legislative independence:
_all'were directed : against: ‘the. same end; to.assure that free-
dom against judicial. ‘encroachment. in other words, * ‘hf jree- os
: 4 dom of’ Speech and action in the legislature was taken as a
-,.matter ‘of course by those who severed the Colonies from
- the Crown and founded-‘our aia Tenney ‘D. oo
s 7 : . : ,
“The consistency with | whigh the jodiar}-has nae con-
stitutionally. singled out-for exclusion | again: ‘refutes the .
ee notion that the: Framers, by adopting’ the Clause,
. “had no objection to and perhaps éven deemed desirable" )
= 83 S Tiese! State’ coasniteinielal: provisions are collected and, sum-
2. marized in Tenney v.- Brandhove, 341, U.S: 367, 373-375 (1951).
a. ay Clarke, Parliamentary Privilege in the American
rs . * . Jane” PaaS -
/ . ?
©
\
\
as ‘
the concept of ‘‘a trial | in 1 the courts of a , member: who takes .
a bribe’. (Govt, Br. 22). Such a concept was precisely.
what the Clause sought to eliminate.*! Upon'a. “charge of .
bribery, corruption, malice, ‘sedition or eriminal libel in the
_ performance of his duties, a. legislator. Was to be ques-
tioned :by his House. and not “in any other place. His ‘of
ficial conduct was not to ‘be * “questioned” by a jury or *
peached” or “inquired into” or?made “the foundgtion ‘of
_ any accusation or prosecution, action or complaint’. The’
_. whole object of the Clause, as this Court.has recognized, is’
“to insure that legislators are not distracted from or hin-
dered in the performance of their legislative tasks by being
called into court to defend their actions.” Powell v. Mc- -
Cormack, 395 US. 486, 505, (1969). .“It insures that legis- . |
.lators. are free to represent the interests of: their constit-
uents without fear that they. ill be later called to task pe
_ the coums ania agiee esentation. ‘Jd. 503 (italics added).
. “Legislative i imm nity does not, of course, bar all juaticial
review of legislati
first instance, to’define the scope of the Clause and then
to determine whether the contesied activities fall within
it. But once the activity is found within that scope, the
judicial power under Article i is exhausted and the. privi-
S. - .
Colonies’ 41943). On the‘ eve: of heConstnaticnal Convention, itie
New York legislature passed a Pall _of Rights on January’ 26, 1787,
which ineluded a provision. that legislative proceedings! “shall not be .
impeached or questioned in any court or plice out of the -sénate or
~ assenthly.” Tenney 7 Brandhove, supra at 374 m3. «. :
« ° . - i . =
‘
.
“4 Indeed, the state and. federal’ constitutional. provisions were
framed with “great care to preserve the principle that the-legislature
niust hg tree to speak and act without tear of cfuminal and civil. lia-
Tnlity ' Tenney v! Brandhove: supra 1.33, at 375
pudicral Jranches for what legis lators say ~ do within the Tegislature
must be impossihy le in order to obtain free Giscussion and consequent
“benefits to the public. “ MéeGovern'v. Marts, 182 F. Supp. 343, 346
MDA. 196).
acts.” Ibid. It is for. the courts, in, the:
es Ns Judge Youngdahl has said). “reprisal by the executive or -
3° 7
lege which the Clause confers is absolute. And the courts
-. have had no difficulty in accepting the principle of com- *
_plete immunity. Although referred to as a “privilege” in
Johnson. it is also described in terms of “legislative im-
-munity”,*" as “an absolute ‘shield ‘against all. outside inter-
ference”:** and as “an absolute privilege to members of
* both Houses of Congr ess in respect to any ‘speech, debate, |
vote, report. “or action done in session.”?* The pr®vilege,
_being- absolute, is plain recognition that legislators are and >
“should be protected not only from the consequences of
+ litigation’s results but also’ from the burden of defending
themselves.” Dombrowski v. Eastland, 387 U.S. 82. °85
(1967).
The fact that the same acts, if not privileged. might ex-
pose the offending Congressman to trial and civil or crimi-
nal liability has never been regarded as a basis. far re-
moving the protection of the Clause. ‘This was ‘quickly
established in Kilbourn v. Thompson, supra 103 U.S. at.
200- 201, when this Court flatly declared-that t the defendant
| ane a Ww ould have been liable, for, their Scheme had
50 Powell bil ee 395 ice 426. 503 ¢ 1969) : Don! RT OW ia
a. Eastland, &s8¢ US. 82, 84-83. (1967).° See also Barsky v. Nuited
States, 167 F. 2d 241, 230 ¢1).C. Cir.). cert. denied 334 U. Se, S43
-
(1948) (“absolute immunity’): Shellburne. Inc. do» Nez ‘Castle
County, 293 I. Sup D. 234, 242-(D. ee sil 2 (Vabsctute nai :
from li: ibility for his vote”). ¢
“7 Vankwich, The ee neenity of ‘Conaressional Speech — vie Onigin
Meanina and Scope I. Pa.-L. Rev. 960, 966 (1951). See also
MeGovern v. Mi tre, 182 F. Supp. 343, 346 (1).D.C. 1960) (Clause
seeH “las, a shield against execulive interference with the indivitlual
legislator”), . - ae
_ 8 Barr v. Matteo, 360 US. 364, 369 (1959). See also Cochran
v7, Cense ns, 42° F.-2d 783 (D.C. Cir.), cert. denied 282 U.S. 874
(1930) (Vabsohutely 1 ls Saale > Hentoff v. Ichord, 318 F. Supp.
1173,-1181 (D.D.C. 1970) “tot: al privilege”): Lusk v. Hanrahan,
"244 F.Supp.” 539, 540 (E DD. Ub: 1963) (absolute privilege” ye
“McGovern v. Marts, 182 F: Sip. 343) 346 (D.D.C. 1960) ("Thus
?
the privilege is absolute’: ‘purpose, motive, dr the reasonableness of |
the conduct is irrelevant.” )
ar
49 :
5
they not se | up the protection of the Clause. It’ holds true.
today. _as the Gov ernment in this very case at bar seeks to
. strip a Senator of his constitutional oe by charging
that his action, votes and decision.on postal raté Jegislatign.
were bribed. | -
We submit that: Justice Frankfurter, speaking ‘for the
Court in Tenney v. Brandliove, 341 U.S. 367 (1951), had
such a situation tn mind:
The. claim of an unw orthy purpose does not destroy.
' the privilege. Legislators are immune from deterrents
to the uninhibited discharge of their legislative duty,
not for “their .private‘ indulgence’ but for .the public
good. One must not expect uncommon courage even
in legislators. The privilege would be of littie-value
if they could be subjected to the cost and inconveni-
ence and distractions of a trial ypon a conclusion of the
pleader, or to the hazard of a judgment against them
based upon a jurys speculation as to motives. The
holding of this Court in Fletcher v. Peck, 6 Cranch 87,
'130. that it was not consonant with our scheme of gov-
ernment for a court to inquire-into the motives of |
_ legislators, has remained unquestioned. <r
* * * In times of political ‘passion, ‘dishonest: or Vin-
dictive motives are readily attributed to legislative
conductyand as readily believed. Courts are not the .
place for such controversies. Self- -discipline and the —
voter's must be the uliimate reliance for discouraging. ..
__ or correcting ~~ ees, Id. 3Tt- 378 (italics added’.
In sum..we can find no ~— in any of the prior decisions
of this Court to disturb the action of the District Court:
-C. CONGRESS: CANNOT ENACT A STATUTE DEPRIVING ;
MEMBERS OF THEIR CONSTITUTIONAL IMMUNITY.
‘Since the Speech or Debate Clause plainly exdludes |
ai auaicial inquiry into matters within its domain, such
e
~
inquiry cannot be authorized by'‘a narrowly drawn stat- |
90
ute passed by Congress in the exercise of its legislative
power to regulate the conduct of its members,” United
States v. Johiison, 383.U.S. 169, 185 (1966), except. at the
: éxpense of the constitutional prohibition written into the
~ Clause. . :
The comprehensive power of: Congress to enact criminal .
‘statutes of general application is not in issue here. There
is certainly no, contention. that the power reserved to the
Seriate to inquire into the legislative activities of its mem-
_ bers.or to punish for misbehavior exempts’ a Senator from _
the law governing all. citizens. A Senator femains liable
for criminal conduct in any form, including ats of bribery,
“that is.in no, wise related to the due functioning of the
legislative process.” Id. at 172." This is the essential
teaching of Burton v. United States, 202 U.S. 344 | 1906), on
which the Government places great emphasis (Govt. Br.
25). Burton ‘involved a Senator convicted of receiving
compensation: for performing services in a proceeding be-
‘fore the Postmaster. General. Legislative immunity under
‘the Speech or Debate Clause, being wholly inapplicable
to, the’ situation, was neither invoked by the Senator nor
discussed by the Court.. It. was urged that his conviction’ -
would interfete with the Senate’s authority over its mem-
bers and its pow er to punish and expel, but this Court saw
“no necessary connection between the conviction ‘of a,
Senator of a public offense ‘prescribed by a statute and
the authority of the Senate in the particulars named.” Id.
* 367. It was plain that the discharge of legislative duties
“does not require a Senator to appear before an executive *
department in order to enforce his caiman views, or ice
* The Johnson * ‘decision: does not touch - “a prosecution which,
though as here founded on a criminal statute of general applicatian, .
does not draw, in question the legislative acts of the defendant member
‘of Congress or his motives for performing. them.” id. 383+ at 13.
-
SRE ee ONTO: gy QE
. .
51
views of ‘others, in respect of matters committed to -that
-department for determination. ” Id. 368.
‘U nlike Burton. the discharge of legislative duties cov ered
by the Speech or Debate Clause is directly in. question |
here. Johnson holds, of course, “that a prosecution under |
a. general criminal statute dependent on such inquiries
necessarily contravenes the Speech or. Debate Clause.”
United*States v. Johnson, supra, 383 U.S. at 184-185. And
thus we return to the same basic question: Whether the
~ power of the Senate to regulate the conduct of its members
~ enables Congress to deprive them of their constitutional.
immunity by enacting a statute which permits courts to.
question their motivations, deliberations, votes and. de-.
. cisions upon congressional matters.
In addition to the basic legislative power vested in the
Congress," the Senate and the House of Representativ es,
are each cloaked with separate authority under Section 5
of the Legislative Article to “be the J udge of the Elections, -
Returns, and Qualifications of its own Members,’*! and to
“determine the Rules of ‘its Proceedings, punish its: Mem- ©
bers for disorderly Behavior and, with the Concurrence of
two thirds, expel a Member.’ These, Section 5 powers.
are plenary and, not dépendent upon the broad legislative
grant contained i in Section 1. The power to “judge’’, to ° ‘de-
. termine” and to “punish” is ‘vested in each House, and not
the Congress at large. See Kilkourn v. Thompson, 103 U. Ss."
_ 168, 183 (1881). The Senate, for example, “is fully ‘em-
- powered and may determine such matters without the aid. -
of the House of Representatives or the. Executive or Ju-:
dicial Department.” Reed 1 v. . County Commissioners of Dei- -°
™ ) Article L ton: +
“ Article I. oon 3, Clause d.-
“Id. Clause 2
52
aware ‘Coutiy, Pennsylvania, 277 US. ‘376, 388 (1928)
(italics added).
In exercising its Section 5 power to “punish its Members
for disorderly Behavior”, can the Senate’enlist ‘the aid of
‘the House or the executive or the judiciary? Although the
Senate may certainly join with the House to enact im--
_plementing legislation, such as might be -necessary to ‘se-
cure the attendance of witnesses, it is extremely doubtful
whether the crucial determination itself may be delegated
by statute to the judiciary. This Court has seldom had
occasion to examine the disciplinary power under Section
5. See Powell v. McCormack, 395 U.S. 486 (1969); Me-
Grain v. Daugherty; 273-U.S. 135, 172 (1927); Marshall v.
Gordon, 243 U.S. 521, 536 (1917); Pr re Chapman, 166 U. S.
661, 668-670 (1897); Kilbourn v-'Thompson, 103 U.S. 168,
182, 189-190 (1881); Anderson v. Dunn, 6 Wheat. 204, 232-.
233 (1821). Not. one of ‘these decisions lends encourage-—
‘ment for the proposition, advanced here, that, the” punish-
ment of Congressmen and their expulsion are matters for
the ‘courts to adjudicate in the first instance. Wholly
63 Porell v. McCormack, 395. U.S. 486 (1969), is detail, not
a decision to the contrary: The holding was premised upon a determi- ‘
nation that the House of Representatives, by its own deliberations
and vote, had excluded,— not expelled — Congressman Powell. This -
Court declined to “speculate.what the result would-have been if Powell
.had been seated and expulsion proceedings subsequently instituted.”
Id. 508, Moreover, no view was expressed on, what limitations: may
exist on Congress’ power to expel or otherwise punish a member once
he’ has been seated.” /d. 507 n.27 (italics added). In Powell, the
Court held that the Constitution does not give.the House of Repre-
sentatives Judiciaily unreviewableé power to set qualifications of mem-
bership but that its adjudicative function is limited to judging whether .
prospective members meet: those - qualifications enumerated in the
Constitution. Jd. 320, 547-548. Consistent with this interpretation,
federal courts might still be barred from rev iewing the House's factual
détermination that a member. did not meet one of the standing quali-
fications. It was implicit’ throughout the opinian that the powers con
ferred by Section 5 are beyond judicial cognizance €xcept. where their
exercise violates other constitutional inhibitions ; in all other respects-
the House is “sole judge”. See id. 552 (Douglas, J., concurring).
4
ELE Ah RAO AIT POLE BOGS AGT ALIEN: CEE
53
apart from the constitutional objections arising under the
Speech or Debate Clause, the strong tradition of legislative —
sel f- discipline before and after 1787 argues against any im-
plied power of delegation."!’ It is unthinkable that those .
_who drafted the Constitutidn, after centuries of struggle for.
legislative indepen®ence. would have confided specific but
separate grants to the Senate and -to the House with the ;
expectation that the actual power would devolve instead |
* upon the judiciary. ase : ? ;
The conclusion is iriéscapabie. that the Constitution vests Y
. the power to punish or expel in each House with the
plain implication that it will be exercised there, not ina
courtroom pursuant to a joint Act.of Cong#ess.. Indeed, the
Constitution ‘does not entrust Congress with a general
supervisory power over its two components. Kilbourn v..
_. Thompson, 103 U.S. 168, 183 (1881). _
That instrument, however, ‘is not wholly silent ds to
the authority of the: separate branches ‘of Congress to
inflict punishment. It authorizes each House to cain
its own members. Ibid (Italics added). oe :
" @ 2
In its first encounter with that Section 5 provision, this
Court recognized “that the exercise of the powers given.
over their own members was of such a delicate nature. that
a constitutional . provision: became necessary to assert or
communicate it.” Anderson v. Dunn. 6 Wheat. 204, 233
(1821).°° Matters ‘of such ‘ ‘delicate nature” contemplate
that each branch of Congress will "exercise its own inde-
See episodes summarized in Gent: 3r: 13:19.
" As this Court has said: “Courts are not the places for such . con-:
troversies. Self-discipline and the voters must be the ultimate reliance
for discouraging or correcting such abuses. " Tenney v. , Brandhove,
341 U.S. 307, 378 (1951).
* Certainly the Constitution did. not intend that the. judicial branch
exercise a power which the Constitutional Conv ention expressly -
refused to vest in’ th® whole Congress.
°
«
. a _ 54 >
pendent judgment by ‘imposing punishment on a case-by-
case. basis, rather than by formulation of a rule of law to
be applied to its members in a judicial tribunal. In the
case of Senators, the power to punish.or expel thus’ ‘extends
to all cases ‘where the offénse is such’ as in the judgment of
the Senate is inconsistent with the trust and duty of a
. member.” In re Chapman, 166 U.S. 661, 669-670 (1897)
(Italics.added). Over the years members have been cen-
sured, fined, and expelled on a variety of grounds, 6S but -
the discretion to proceed against-a Senator under Section
5 has always’ remained exclusively in the hands of the
. Senate.
bribe. It cas a.bribe.” «Bowers, The’ Tragic Era: The Revolution’
lfter Lincetn 396 ( Houghton- Mifflin ed. 196 )2}. The scandal touched
the Vice-President, Vice-Presfdent-elect; the. Chairmen of the most.
In short, we submit that the Senate: bls a. p ustedsleguble
constitutional obligation to -décide for itself whether its
members will ° be ‘subjected to punishment or expulsion.
Neither the Senate nor the Congress may constitutionally.
legislate away this vital function,: by a narrowly drawn
—
** Imprisonment may be ‘imposed | by the Senate: in appropriate
| cases. Ailhourn v. Thompson, 103 U.S, 168, 190 ( 1881).
- Inchidirfe the acceptance ‘of berths and emoluments. See II
Hinds’, Precede nts of the House of Representatives $1236 et. seq.
(1907). In 1873, for example, a House investigated the fact that
Congressman Oakes: Ames had distributed a quantity of stock among
influential waters as a precaution against congressional i inquiry into
the affairs of/ Credit’ Mobilier, a railroad holding company. As a.
leading historian has said, the stock “was;. in trth, intended as.a
important committees of the ‘House, and the floor’ leader ef the
minority party in ‘the House. The. shocking disclosures linked. nine
members of Congress to the ‘scheme. The House ultimately censured -
Congressmen Ames and Brooks, after expulsion attempts failed. /d.
396-404." See I] Hinds, supra at $12%6.. There is no -record’ of any
indictments growing out of this sordid episode. This Cotirt once
reviewed a Senate investigation into charges that Senators had been
speculating in sugar stocks during the consideration of a. tariff. bill
“spending before them. /n_re.Chapiman, 166 U.S. 661) 663, (1897): ”
. The charges were hel 6b
. under Section 5; /d.%69. -
6 be “within the jurisdiction of the Senate”
. 55
statutero or otherwise 69 These eonelision: are strengthened
by the realization that Section 5 powers, in a very real
sense, “are not legislative, but judicial i in character.” ‘Barry
_ United States ex rel. Cunningham, 279 U:S. 597, 613
(1929). In exercising such powers, “the Senate acts as a_
judicial tribunal” and its power to adjudge “is in no wise © ;
inferior under like cireumstances to that exercised “by
court of justice.” Id, 616. For example. while acting within
the constitutional limits assigned to it, the Senate’ passes |
. upon contested elections to that body, exclusive of any
tribunal,-including the courts." In determining the rules of | 3
°
8 One writer, addressing himself to the “ ‘narrowly drawn statute”
question posed in United States v. Johnsofi, 383 US. 169, 185
(1966), has concluded that “the clear and irrefutable logic. of [the-
Johnson| decision leads to the inescapable conclusion that Congress
‘must in some way, deal with these problems {ot legislative’ wrong-
doing| itself’ and ‘cannot“delegate away its exclusive jurisdiction to
regulate the legislative conduct oftits members.” Cella; The Doctrine
of Legislative Privilege of. F reedom of Speech and Debate: Its Past...
Present and Future as a Bar to Criminal Prosecutions in the Courts, .”’
2 Surro_k U.L. Rev. 1, 41 (1968). “If the legislature is held to be
the exclusive forum for the trial and punishment tor legislative mis-- |, *
conduct and misbehavior.. then nerious- questions exist as to the ability .
of the legislature to delegate to others. its power to-try-and punish its
own members regardless “of how precisely it may endeay or to. define
the specifie nature of ‘the offense. Privilege, moreover, as we have
seen, inheres in. the individual legislator and not in the collective body.
[It cannot, therefore. be delegated away.” Id. 4] 42,
™ Barry v, United States ex rel. Cunningham: 279'U.S. 597, 619 °
(1929). “See also Jones &. Montague, 194 U.S.- 147,, 153 (1904)... |
(“sole judge”) ; Sevilla v. Elizalde, 112 F.2d 29, 32; 37 (D.C. Cir.
1940) Revers v. Barnes, 474-P. 2d 610 (Colo. E79); Laxalt v.° .
Cannon, 80 Nevs 388, 397 P. 24-466 ( T964) : Odeyard v Olson. 264 -
+ Minn. 439, 119 NW. 2d°717. (1963): Wettengel ‘a. Zimmer man, |
249 Wis. 237, 24 NAV. 2d 504 (1940). “The. many volumes of
election contest cases in which every coneeivable question has been’
_ Taised with. réference to the right’ of persons to sit as members of
Congress, together with the Fact that there are no Court decisions to
we found controlling ‘such matters, bear mute bit forcible evidence
that this: court has no authority to be the judge of the manner in
whicli such members were elected * * *.° Keogh v. Horner, 8 I,
* Supp. 933, 935 (Ss. D. Il. 193+4).. . i
- = . )
oe
J.
‘- other tribunal to review.
proceetlings: in. _sceordande with the same. eres =, the
Constitution w hich authori izes punishment and expulsion,
the Senate may not ighoré constituiional restraints ut,
subject only to these limits, its power under that clause
* is “absolute and beyond the challenge. of any other ody °
or tribunal. . United State Ballin. 144 US. 1, 5 CRBD2).
Within this nondelegable category falls: the power to.
‘punish or,expel. That pow er was specifically identified by
this Couft when it said ° ‘that the powers confided by the.
i Constitution to one of these departments cannot be exer-.
ccised by another.” ‘Kilbourn:v. Fhompson, 103 U.S. 168, 191 |
(1881). In this separation: of powers. context, the authority
to discipline members confided in the Senate may ‘not, be
exercised elsewhere. The. power unquestionably entails.
the informed judgment -of the Senate as a precondition , to
its exercise. Cf.. In re Chapman. 166 U:S. 661, 669-676"
(1897). As is the case of the other. Section 5 powers, the
exercise by the Senate of its power. to punish: ° ‘necessarily
- involves the ascértainment of facts; the attendance of wit
nesses, the examination of such witnesses, with the pow er .
to compel them to answer per tinent’ questions, to deter mine’
‘the-facts and apply the appropriate rules of law,.and, finally
. to render a judgment. which is, beyond the authority of any
*. Barry -v. United States ex rel.
Cunningham. 279 U.S. 597, 613 (1929). oe
So:
f ’
j-
fs ° . , >
- : ©
—_—: ma
¥
71 We do not ‘overlook the fact that. this (uote ition from Barry as?
mM.
Poi
Te carded a Ng
ti 7s. Mi ‘Cor LIC ee
305. A a 4X6,
519 wale
*; (1969),
Tis C aurt indicated that the
lang: ige in Barry must be
qualified igi one
qmportant respect Dut did “not otherwise equestion Its
rxincvige
Barry \",
as moditied by Paz velll means simply | that-only the
Senate
“an
iyitis ite
disci iplincaers
actioh “Against «a member but’ that
stich action is hot automatically immune: from jadicial reviety to detet-
mine
Its Cofstitutionality.
Indeed,
as the Court recognized ir Po well
supra
at n.40,
Parr
vi itself conditioned the exedfise of Senate’ power
“to the restraints imposed by or toiind in the implications ef the
: Jative ‘duties but ° “they, gare hot: ‘be questioned in any sia
_- si oo 2 * . * vk FR een ae it ee OA st ACE ELIMITE IEE
o7 |
\2. Our conciusions with respect to the Senate's power
under’ Sectfory 5 are derived without reference to the pro-
~hibMion agai st outside inquiry - contained ‘in. the Speech
or Debate Clause. If our interpretation of Section 5.
correct) the there is no unnecessary conflict with Section
6. The t ulation of the conduct ‘of Senators, as well es
| expulsion,* may be régarded as functions vested in. the —
- Senate to the exclusion of the judiciary. Under this har- J
_monious construction, and consistent : ‘WwW ith the separation .
of powers doctrine, Senators may .be punished by the
Senate for misconduct in the’ perforiance of their legis-
“Place.”
< This are is vee by a een gtudy completed
‘by the- Association of the Bar of the City ‘of New York.
Referring to United States v. Johnsan, 383 U.S. 169 (1966), *
‘the report inditates the proper relationship between: dis- -
ciplinary power | and legislative privilege:
The judicial rulings in the Johnson case ‘point up the °*
importance of Congress” using its own disciplinary
powers. Such matters as: a_-bribe- induced speech or
. vote are insulated from criminal prosecution as a. part
_ ofa Constitutional scheme to protect the independence’
of the Legislative Branch. .As a corollary.:it was em-
. powered and expected to keep its houses clean by, using °
*. its powers se expel and pee for misbehavior.“ «—
Constitution.” 1d. 279 U. S. at-614. This thoPoughly reinforces our’
own View that the. power to regulate the conduct of .Setiators, United ,
States.z. Jolinson, 383- U.S. 1695 183 (1966), Which is not ‘truly -a
legislative: power of Congress, is subject to the restraints imposed by
the Speech or Debate Cl iuse as to, the questioning ot members out-
side the Senate. . Af
#2 Kirby, Conaress and “the Public Trust 23 (1970). ' The same. .
interrela tionship has been identified,'in earlier conmmentaries. See .
Bishop, -¢ a s onthe Non- Contract ad $§$775-778, at 360-
361 (Ist ed. 1889) es ,
s
“Or expel him. To question a
‘Debate
3. Members of either House. cannot) be | ‘qhestioned in
other - Place” ‘within the- meaning of. the. Speech: a
lause. It- fs. implicit that the Senate can question: :
a member in? ect of his legislative condutt, just as it.
is explicit under Sectio nm > that it is empowered . to. punish
-is. to perform an ad-
judicative . function which “Section 6 ofthe Legislative '
‘Article vests in the Senate to the exclusion of the judiciary. |
As dur previous discussion: makes clear these conclusions
seem unchallerigable. | ‘
nd
-The Government insists that the unfettered power to |
: punish members for misbehavior, including the acceptance
J w
,
of a bribe: in exchange for legislative. conduct, i$ vested - ¥
- in Congress (Govt. Br. 23-24). On this assumption the |.
‘‘ Government argues that Congress can: exercise such power
’ by enacting “a narrowly, drawn statute” empowering the
regular ‘judicial tribunals. to inquire into such behavior.
In this fashion, the barriers erected in United States D.-
. Johnson, 383 U.S. 169 (1966), would be lowered and legis- ;
lative candi would: be opened to ‘executive and judicial :
scrutiny’, a Pe :
-Cancebing the full extent of this assumed power of ate :
_ gress, the argument is so afflicted by a fatal defect that wée.
- need not further examine its premises. The complete an-
. swer is that it is the Constitution, not. the Congress, which. .’
ts the source. of the legislative privilege. As this Coprt said
“most Fecently i in ‘Powell v. McCormack, 395 U.S. 486 (1969):
Our cases ‘make it clear that the legislative immunity: -}
created by the Speech or, Debate ‘Clause performs an
‘important, function in ‘representative government. It:
,. insures that legislators ‘ate free to represent - the in-
_terests’of their constituents without fear that they will
.. be later called to task. for. that ree: Id, 503°
"A :
That insuranée, which protects the slebbinite as s the pri- sf
“mary beneficiary, ¢ cannot ae withdrawn si Congress. Con-°
.
ee “59 ‘
dust within, the coverage of the Claiasest remains immune. :
"As the Government is so fond: of saying,” Congress is not . .
: ith the lex parliamenti of England. Watkins ».
- United Stat
” gon, 103 U.S."
no position to expand, contract or otherwise, vary the limits
354 U.S. 178, 192 (1957); Kilbourn 'v. Thomp- -
8;.199 (1881); Anderson v. Dunn, 6 Wheat. 3
204, 231. (1821). ‘Without such omnipotence’ Congress is in
' of.the privilege vested in its members. Watkins v. United
_ States, supra at- 188: Tenney v..Brandhove, 341 US. 367,
376377. (1991). Just as: ‘Corigress may not acquire power
by an. unwarranted: extension of privilege or by Creating ” ;
“new ones, neither may-it abolish or - abridge a privilege
= secured to. its members by, the Constitution. a4 by :
We again ‘refer to Coffin v. Coffin, 4 Mass, 1 | (1808), “which eae
this Court has‘ ‘acknowledged as the first and “perhaps the
most authoritative case in this country” on the Speech or
Debate Clause.“ ‘Coffin speaks persuasively on the ques-
| : tion of whether ale islative body can constitutionally alter .
the scope of the Clause. In that case, a ‘question arose as
' to whether.the Clause should be interpreted in the light
of a limiting pane passed: ‘by the Massachusetts legis- :
a
73-Govt.. Br. 15-16, 22 n.22, 26. See ao Brief of United Suntes,
at 24 n.21, 34-36, United. Statesg’. Johnson, 383 U.S. 169 (1966).
“One of the most disgraceful aspects of the John Ww ilkes affair,
discussed in the, Govt’s. Brief (at 16-17, 19-20), was the exercise by
the royally-controlled- House of Commons of the lex parliamenti to
depriye Wilkes af his legislative privilege and g@féereby assure his’
conviction by the King’s .Bench, for seditious libel. See Powell-.v.
McCormack, 395 U.S. 486, 527-531 (1969) As a leading historian
+ has written, Commons * ‘withdrew the shield of ‘privilege in order .to _ |
justify a judicial decision contrary to law and usage, and ‘then, not . ,
“content with expelling the obfioxious member,. proceeded illegally to
deprive. the electors of Middlesex of their free choice of a representa-
- tive.” Taswell- -Langmead, — Constitutional History 652 (10th bee
ed. 19465.
e
® Kilbourn ‘v. Thompson, 103 U.S. 168; 204° (1881). -The con- |
‘struction placed upon. the Constitution by judges who~ were con-
: ‘temporary with: its formation is not mierely entitled | to very great
oo ‘ : ie
= ~
RD apps 0 TEE 9 RB ng oe Ce ee ee ee ee ee Seen ney eee
a
+
Mt
jdtore? ' Responding for a | unanimous Cat, Chief Justice
-Parsoris said: hee ee RE | wet
%
“In considering this. article [of the Constitution], i it ap-
pears to fhe that the privilege sécured by it is not-so
‘ much‘the privilege ofthe House as an orgailized body,* :
‘as of each individual mefnber composing it,.who is. ‘}
- -entitled to this privilege, even. against’ the declared i
will of the House. ‘For he does not:hold this privilege
at the pleasure of the. House; but derives it from the.
» will of the people; expressed in the Constitation,.which
_is paramount to the will of either. or botf branches. of _
_the legislature, * * * Of these privileges; thus secured to .
: each member, he cannot be deprived, by a resolve of -
-- the ™ house, or by an act. of the’ legislature. Id. 27.%6
Since the coristitutional protection afforded by the Speech A i
OT Debate Clause is infended to secure to the people the:
right to representation free from: judicial or executive _in-. e
' _terference, it is clear that Congress canriot waive this pro
__hibition by an enactment subjecting its: members to pro- ©
_ hibited questioning any more than Congress can alter any
other part of the Constitution by legislation.: Marbury. v.
- Madison, 1- Cranch.137, 177 (1803). Congress cannot em-/
power courts by statute to question the tegislaters any more a &
than it can empower courts to attain other forbidden ends. ~
For’ example,-the Constitution says: “No Person shall be
convicted of Treasori unless on the Testimony of two Wit-
same — Act, or on confession in open» |
‘Here the language of the constitution is addressed
especially to the courts. It prescribes directly for them,.
a rule-ef-evidence not to be departed ‘from. If the-
legislature should iat that rule, and declare-one_
weight ; “it is aknoet conclusive.” : Faltbank v. United States, 181
US. 283, 309 (1901); Burrow-Giles Speen Co. v. Sarony, —
111 U.S. 53, 57 -(1884)..
78 See n.69, supra. - ae oe
Li! Consttiution, Article III, §3, Clause 1.
e-
SPAS SEs STI eg OLE RE RS 7
; “aise ; ." :
; ‘ o . .
‘ ™ by o
Bee ane
. ® <
; Pita Nee .
. a * eat . <
° /
-
_ viction, must the constitutional principle ‘Yie}d 46 the |
legislative i ‘Id; 179.
*. @e
se tt is simnflarly inepnceigsbie to. us. that legislative iny
“munity can be subordinated to a. well-intentioned Act of
Congress- abolishing legislative immunity in certain. in-
stances while retaining’ it in others. An executive charge ©
oor venality would thus become the touchstone of judicial
accountability..s However ‘ ‘narrowly drawn” the-¢ncroach- ©
ment, it would necessarily erode the principle that Con-
~gressmén should not. be ‘ ‘distracted from or : ndered ie.
the performance of their legislative tasks by being called
into court to defend their actions.” Powell ». McCormack,
395, US. 486, 505°( 1969). Under. such a statute the privilege —
: secured by the. Clause would be ‘contingent updn a grand
ty jury’ s evaluation of unworthy purpose or corrupt motives |
- = precisely ‘what this Court has declared to be constitu-
tionally © impermissible. “The privilege. would ‘be of. little . *
_valueif [Congressmen] could be subjected to the ‘cost and
inconvenience and distractions of & trial upon a conclusion®
__ of the pleader, orsto the hazard of a judgment against them,
_based upon a jury’s speculations as to motives.” (oe w:
. -° witness, ora polttedibnis out of éourt, ‘sufficient for con-
a . a3 id ie
: Brandhove, 341 U.S. 367,877 11951) ——
‘When constitutienal power impinges upon some basic
value secured by another provision of the Constitution,
such power must yield. As this Court — recently in |
I+ Williants v. Rhodes; 393 USS. 33 - (1968):
"+ ** (These granted pelgers are always subject to the .
limitation that they niay not be exercised in'a way that .
_vidlates other specific provisions of the Constitution.
| For example, Congress is granted broad power to “Lay ~
and collect Taxes”, but the taxing power, broad as it is,
may not be invoked in such a way as to violate the
‘Privilege against self-incrimination. Id, ail
¥
vee tage Betis
Nor can ‘Congress constitutionally warrant a judicial in-
- . -quiry into. matters of conscience privileged. ‘under ‘the.
Speech or Debate: Clause, any mare‘than it can take away | |
or @eplace” any other constitutional privilege. Giving “full
play | to the powers conférred by Section 5 to. discipline |
" Members, this Court would be “no less ‘obliged to heed the -
limitatioris placed upon those powers by the Constitution’s |
* other commands.” Haynes v. United, States, 390 U.S. 85, 98
(1968) .» See Apt ekes v. — of State, 378 U.S. 500, :
509 { 1964).
We do = ieinaciine that 3 a Oni could: be action’ or
expelled by. his colleagues forfsnburdening himself of an’ .
3 impassioned. harrangue on an unpopular cause, much less
placed on trial in a court of law under a delegation ‘of such ©
- assumed power. Cf., Bond »v, Floyd, 885 U.S. 116 (1966) .7
~“ “Legislators have an obligation to take positions on contro-
i rae te —
versial political questions so that their constitients can be
fully informed by them, and be better able to assess their *y
qualifications for office, also’ so’ they may be represented |
-in governmental debates by the person ‘they have elected. :
to represent them:” Id, 136-137. In formulating their posi- . |
ions_and in voting on-matters-pending-before theni, legis:
lators cannot be deprived by Act of Congress of that “Free-
dom of speegh and action-in the legislature * * * deemed
so essential for representatives of the people that it ,was
written into *.* * the Censtitution.” Tenney v. Brandhove,
341 U.S. 367, 372. (1951). Eee tes
.Tq deny to Conigress the aisthnicity to legislate away the. }-
privilege of ‘its members is not, to-disparage its comprehen- |
. Sive oe prssintss powers under Sections i and 8 or the powers:
+. 18 See. Powell v. SicCormech, 305 U-S. 486, 522 (1969): (Douglas. |
ae concurring ). “Members of Congress have the same right to speak
1970).
as anyone else.” oS 318 F, Supp. 1175, 1179 er
%
i vases to its coordinate branches ander Sectio \5. If'any -: de , 5
doubt remains on the subjett;.one need’ look no further” CE
"than Powell v. McCormack, 395 -V.S: 486 (1969), Which so. ~~~
‘recently | held that. the plenary authority to judge the: quali- RAP: q
‘fications of members does pot permit. legislative action to ©. o o
.exclude any. peyson, ‘duly: elected: by his; constituents, who‘ © | 4
‘meets: all the qualifications prescribed in the Constitution.
Id, 522. -For Congress to prescribe additional “qualifications.
by statute would constitute a usurpation of ‘power: Like- .
‘ ee: the other exclusivé and adjudicative powers ‘Vested in:
i the House ‘and: the ‘Senate by Section ‘5 are qualified . by —
_, other constitutional provisions in general and by the pro- 3
_ hibition-of f the Speech or Debate Clause in particular: Thus
‘§ the’ Senate may judge the elections and “render a jddg-
' ment’ which is beyond the authority. of any other tribunal
to review” under Section 5, “subject only to the restraints Cad
; “imposed ‘by or found in the implications of the Constitu-
tion.” ‘Barry v:. United States ex rel. Cunningham, 279 U.S.
597, 613, 614 (1929). Similarly, each House may‘determine _
—itserules’ of proceedings, and its.’ power in this respect is
- “absolute and beyond the’ challenge.of any-other body or. .
a _-tribunal”;yetit “may not not by its rules ignore constitutional _
restraints or violate fundamental. rights.” United States
_». Ballin, 144 U:S. 1, 5 (1892)... We perceive no-reason why
‘the _assumed power to regulate the conduct of Senators -~ ~
_ should not be limited by the same instrument from which
i such eseeter is derived. :
s
>. > Ms . : - - ,
ses. al a ie — " - %
ot
within 4 §
a. _4--On- aS ares the Government's
position is impaled on the separation of powers doctrine. 3
Johnson establishes that the Speech or Debate Clause, apart
- from preserving the legislative privilege, “serves the addi- se
a tional function .of reinforcing the separation of | _powers SO
deliberately established by the Founders.” United States
v. Johnson, 383 U.S. 169, 178 (1966). Moreover, “the in-
.
-
“ stigation of criminal charges against criti¢al or r disfavored -
~ legislators’ ‘by the. executivd in a judiciat forum was the
hoa chief fear Promptifg the long struggle for. parliamentary
Cs privilege in ngland and,. fn the context of the ‘American
: ' system of séparation of powers, is' the predominate thrust
~ of the Spéech or Debate Clause.” Id.:182. The importance .
of the Clause in the “tripartite systém. of Government can -|
per scaréely_ be minimized. “The Clause is the only constitu-
3 . ‘tional provision wherein: the ‘doctrine of separation of «
“ powers is explicit and igs history indicates that any Matter _
__ concerning either House of Congress: should b& e2
_ and adjudged i in. the House to which it relates, and not else-
» where.” . Stamler 2 v. Willi : “Supp. 734, 738 (N.D.. TL
_ 1968 8), rev'd ort ot er grourids 415 F. 2d 1365, (7th, Cir. 1969),
eG, The express - constitutional prohibition Hgainst utside s ee
_ questioning of Congressmen is an éxplicit exception to the -
Fis general. grant of judicial power to. the courts-in Article III
ae er Constitution. This’ denial: to the judiciary of a:
function Which is essentially adjudicative is by- no means
unique to the’ ‘Speech or Debate. Glause. In addition. to the‘
Section 5 powers discussed supra, the Senate “shall have ‘
_ thé sole Power se impeachments. 80 We doubt that .
“4
oe Senate, in the exercise of its sole power, could combine,
me with the. House of eprésentatives, which has “ ‘the sole
~ Power of Impeachment”,* ‘! to pass. a statute “delegating
- such ‘power to ‘the courts.8? It is also beyond the com- -
Lg ® Supportive of this conclusion: are, e¥., Schaspi, Judicial Revie
.and ‘thes Political Question em d bre pien ol a 75 YALe bo .
*-518, 540 (1966) ; Wechsler — eutral Principles gnstitu-
- tional fies 73 “HaRv. L: Rev. 1, 12 (1959). Compared . 5
Pe McCormack, 395. U.S. 486, 1354 (1969). °
; 89-<Constitution, Article I, §3, ia See Kilbourn v’. _ Thompson,
103 U.S: 168, 190’ (1881). ie ,
- 81 Constitution, Assticle I, §2, Clause 3 -3 :
| 82.Cf., Chandler v. Judicial Council of Tenth Cheuis, 308 US. 74,
136- 137, 140-141 (1970) (Douglas, : pe —— a See n.S4, infra. °
ta a : ee
Oe
-- §53, 580 (1933). (court’s itali
: petence of Canin to exiahha courts. to give advisory épin-.
ons, e:g. ‘Muskrat v., United, States, 219: U.S. 346 (1910), 5 =a
or to decide oor cases, United. States v. ‘Evans, 213 - S. ae |
ca (1908). Ce | ee
—cause “they are incapable of recetviig | age American In-
* surance Company v. Canter,.1. Pet. 511, 546 ( 1828). It. isla |
‘fundamental limitation, implicit in the division of. powers, -: . Bos
: “that a power definitely assigned .by the Constitution to .
‘one department can. neither. ‘be ‘surrendered nor delegated | _iMed
“by that’ department, ‘nor vested’ by statute in another dee -
_ partment or agency.” Ce sinnamy, v/ United Statts, 289 U.S.
“See. United - States -v.
_ Brown, 381 U.S. 437, 443 71 si: “Kilbourn v. Thompson,
103°U.S. = (1881). | ae es cae Sr ee
«6. ‘The Government argues here, exactly: as it did five -
years ago in ohnson,*3 that “{slound considerations of.
Policy ' sup rt the authority of Congress to. provide for —
judicial trials of corrupt members” (Govt. Br. 26-27): It is
said’ that “legislative machinery -is. not geared to resolve ‘- ¢ aby
the sensitive issues of guilt or innocence”; that the punish- > ~ !
- ment is ‘too light; that a trial by, the Sense “is aptto-bein- —
fluenced by political factors extraneous to. considerations | 3
of ne | and that “politically independent judges and
juries” are more suited to the task of ruling upon “blame-
: worthiness” (Govt. Br. 27-28). The Speech: or Debate
‘Clause is vindicated ‘by judicial Proceedings, —
_. the Government because: } aa )
‘ a See n.29, supra, and accompanying text.
. a - 9
eo
; - the nation themselves ? +
gh RS 7
‘His conduct is subject té censure only: if a grand jury
returns an indictment charging betrayal. of the public.
-. trust, and the impartiality f the judicial tribunal pro-
_ tects him frem a politicall motivated judgment. Con-
. cofmitantly,- the use of the: judicial process prgmotes |.
public. confidence in the_ integrity of Congtess. since? }
. such.a procedure evinces a deliberate legislative de-
cision to try one. of its own in a nonpolitical forum ~
- over which it has no fe” (Govt. Br. 29) (italics
ans added). fee
Se ay
These arguments. do hot improve with age. ‘Indeed, they
' come 184 years too late.84- These remonstrations in op-
position to thé Speech or Debate Clause, and the history
and: principles of legislative independence on which it. is
based, were not heard jn 1787, were rejected in 1966, ‘and
" should - not. be reconsidered now. The adoption of the a
Clause “os a matter of course by those who severed ‘the :
fy Colonies from the Crown and founded our Nation” “with-
om Against such objections the Constitutional Conv ention desigtonta |
thé,Senate as the appropriate forum for the, trial of impeachments.’ °’
The Federalist. Nos., 65, 66 and 81 (Hamilton) (Ford ed, 1898), |
at 433-446, 342: 543. To the detractors of legislative trials, who —
championed ts ponpolitical” judicial court of impeachments, Hamilton:
> gave this reply (1d, -No. 65, at 435):
+ “The Convention, it appears, “thought the Sénate the most. fit-
depository ‘of this’ important trusts “Those who can dest discern’ the
intrinsic difficulty of the thing will be least hasty in condemning, that -
opinion, and will ‘be most inelined to allow dye weight to -_ ag
ments: w hich may be supposed to have produced it. - | :
“What, it. may: be asked, ‘is the true spirit of the institution
‘itself? Is it not. designed as a method of NationaL INQUEST. into
_ the conduct of public men? If this-be the design of it; who can so
properly be the inquisitors for the nation as:the he sdeagiovacitech of
“Where else than in the. Senate coul shave ‘ele, found a tribunal [;
sufficiently dignified or sufficiently ind pe dent? .W hat other body
would be likely to*feel confidence enough +a its owm situation’ to.
’ preserve, unawed and uninfluenced, fhe “Mec sary’ impartiality be-
tween an indivitlual accused and the representatives of the people, ‘se
his accusers?” (Italics in original.) --
_ 85 Famnee’ v. Brandhove, 344°U;S. 367, 372 (1951).
~
| out discussion ne wlihout opposition,”
% ing refutation. of any judicial’ comp¢te ce in’ the arena
- served: by’ the’ Clause. It i is. inconceivable hat the Consti-*
also suffer €on
cal forum oyer which it has no control.” In evaluating the -
—
‘stands’ as a iat
tution, with its definite’ assurance ‘that members ‘of either 6
-Hotise “shall not. be questioned in any other Place,” would -
n, members over to:“a ‘nonpoliti-
imaginative guilt-fixing scheme concocteu by the Govern-
ment, how ironic it seems that the Senate i is given no voite
at all in proceedings against fone of its’ members!
This. sceneaily was-not the plan ‘created by the archi<.
‘tects of our Constitution. Legislative immunity (with jts |
corollary prohibition against judicial inquiry). was adopted
to reinforcé, “the separation of powers’ so deliberately es-
tablished by the Founders.’ ies United. States v. Lohnson, 383 af
U:S,169, 178 (1966). +
» This “separation of powers”. ‘was obvioialy wa ‘insti-
tuted with the idea that -it would promote apa
‘mental efficiency. It was, ori the iomoieatd egy,
asa’ ‘bulwark: against tyranny. ST.
‘Tf smooth-functioning judicial machinery was ‘excluded
that legislators are called upon .to deliberate and make
> political decisions which Invite suspicions and allegations:
of improper motive. It is their responsibility, as elected ;
* from the realm of the Clause, it-was with the realitatign c
representatives of the people, to be. influenced at every"
turn, Owing loyalty” to constituents of. varying persua-
‘sions, and obliged to satisfy their needs and to serve their |
"special intere&ts, they hold. themselves. open to all manner’ _
of suggestions, methods, ‘and techniqués.. They are ap-
proachable and they. ake approached, -often in secrecy and
under circumstances. ambiguous enough ones excite the sus-
“86. nited States v. ' Joliuson, 383 U. S, 169, 177 (1966).
oe United States w. Brown, 381 US, 437, 441 (1965).
og
of
,
ARR Shi aa La eae vey
- -
a
ee
we .
ae > ee nag 2 LE oe eee o
a.
| picions ‘ofa aeeehs jury, slash instigated “ an unfriendly
: Government attorney developing “inferences”, from facts
‘ susceptible of different meanings. ae Ce 2 a
©
A
Political conduct calls for political jodgments: 88 It is’
: manifest that the Framtrs deliberately es¢hewed. i inquisi-
tions in the courtroom in favor of unlimited freedom of ©
assurange of -an. electorate served. by independent law-_
*“\_makers. To that end the Speech ” or: Debate Clause em-
bodies the public policy of our Nation arid should be liber-
> rally construed. Cochran B. Couzens, 42 F. ‘2d 783, 784 (D.C:
Cir..), cert. denied 282: US. 874>( 1930). We! — with |
Justice Frankfurter, that:
_~ Tn times of political passion, dishonest or » Windictive
_ .‘ motives are readily attrilquted vo. legislative conduct
«and as readily beliéved. Courts are nou the place for”
- speech and actiort, by Congressmén as. the most* effective —
such controversies. Self-discipline and the veters must —
. be‘the ultimate. reliance for discouraging. or correcting”
such: abuses. 89 . = oo »
é 3 :
6. To the extent that a provision. afi the Constitution re-
quires justification at all as a precondition “to its liberal*”
application, - we ‘submit that ‘“sound. considerations. of
- policy” point away: from the Government’s position. Un-
like all officers gf the executive and, judicial -branch, wiih _
~~ ‘the lone exteptions - ‘of the President’ and Vice President, ©
members. of Congress are elected to office. They must of
88 Barsky < - United States, 167 = 2d ‘241, 250 (DC. Cx, cert.
denied 334 U S..843 (1948). It has, béen said “that, the political
nature of. the. privilege. calls for a politically. determined penalty.
Nate, 78 Harve. Rev. 1473, 1474 (1965). . 2 *
Tenney ¢. Brandhove, 341 U.S. 367, 378 (1951). As Chiei |
Judge Sobeloff observed in the John son case, it was the House and
the Senate which.“the .Founders thought could be trusted: to deat -
fairly with an accused,member and at the sarhe timie do so w ith proper
“regard for their own integrity and dignigy,” United States cv. Johnson, ,
337 &. 2d 180, 190 (4th ir. 1964), aff'd 383 U.S. 169° (.1966,).
’
—
\
i
a . . , oo . :
snecessity rely heavily upon gifts in the form ‘of political .
* campaign contributions “to finance the constantly rising
costs of political Campaigns requiring access to the various
_ forms of mass comMunications media. This, as well as an
or awareness that .a Senator may be swept out of office at
any election, thas made it mandatory for them to. trade
votes, compromise, defend special interests, and look after
* their’constituents.° 7%). SK sae
‘ : ( si te . |
‘The acceptance of a gift or a political campaign: con-.
tribution by a member of Congress ‘is not inherently un-.
ethical or, dishonest even if ‘it beats some relationship to
2
- “In fundainental respects, however, the congressional problem |
differs from that of the executive. It is too easy to say glibly that-
itules governing the administrator should govern the legislator. The
Congressmin’s representative status: lies at the heart of the matter.
As a representative, he is offen supposed to represent a particular _ -
- economic group,.and in-many instances his own ecohamic self-interest —
is closely tied to that group. ~Ahat is precisely why. it selectéd him.
‘It is common to talk of the Farn? Bloc, or‘the Silver. Senators. We -
* would think edd a fishing state ‘Congressman. who was not mindful.
of the interests of the fishing industry — though he may be in the
fishing business himself and though -his..c:impaign funds come in
..,part trom this source. This kind oof. reptéSentation-is considered in-
evitable and, indeed, generally applauded, «Sterile application of an,
_ abstract rule against acting. in situations involving self-interest Would
prevent the farmer Senatgr’ frem_votiag,on farm legislation or the
Negro congressman, from Speaking on ‘civil rights bills. At some.
point a purist ‘attitude toward the evils of conflicts of interest in Con- ‘
gress runs afoul’ of the basic. premises of Amierican representative
government. ,
_-ment salary. Forced to keep his base and to spend time in his home
district: he unavdidably incurs heavy and regular travel expenses. °
Campaign costs soar as campaign techniques turn to mass ‘communi-
cation media. --And the Congressman must always be prepared to sail
on the-next ebb of the political tide. These facts, taken together with
the myth that membership in Congress is sll a part-time job, ensure
that Congressmen will" keep up ger outside economic connections, .
and that ‘they will insist upon the hecessity and justice. of their doing
_ 80.” The Asseciation of the Bat of the City of New York, Conflict
.of Iwterest and Federal Service 13-16 (1960). See Note,.78 Harv.
L. Rev. 1475-1476 (1963). : a |
we ; an : _ oa
, / :
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.“Furthermore, no member of Congress can subsist-on his govern- @&
: P : :
| GHEE ano, DALAT DS SE ROTTS TEP AGL NI I He ee gsm
an. “official act such as his vote. ‘Positions taken’ with the
hope and eyen the immediate prospect of campaign con-
: tributions must -be countless. Who in the: United States
- Senate has not been influenced in the: performance of his
legislative. acts b
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