# Appellees Brief — United States v. Brewster > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0061%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1972 - **Citation:** 408 U.S. 501 ## Text a2 . - . - . “” 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 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. © Se mp @. 4 - » - é ft : _ 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. : 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 ~ 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- | 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 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. 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.” 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 . ® . > 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- ~ ! - 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 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 forded under existing statutes indicates that there need not be an absolute immunity to bribery prose- cutions, oy | | Note, supra at 347-348 (italics added). ; ee a It is evident that the author had in. mind ah ideal tojbe | * pursued, not’ a. goal already attained: All’ “existing stat- - utes’ ’, obviously: including §201, were conspicuausly placed in the ‘unacceptable categony.’ Without pausing to. contest the author’s notion that Congress can‘impair the. consti. .. tutional’ privilege by tight definitions of. bribery, we reject -[ -as unfounded any suggestion that §2Q1 is defined with such |. precision.as to qualify asa “narrowly drawn statute”, For } : example, the Note condemned its corpanion, 18, U.S.C. $203, punishing ‘conflicts of ‘interest, as ‘constitutionally f _vague for reasons equally applicable to $201. Wess ‘(itl allows conviction for ana eemént to Teceive coin- _pénsatiom even when the bribed-service has not’ been - “performed anf@even when consideration has not passed. _ Thus the statute leaves the jury free to convict essen- . | tially’ upon evidence - of intent only. Standards: for . Sores proof of intent are rather uncertain, and a Congress- man might fear legitimately.that honest conduct could — be misinterpreted. Every conversation with-a constitu. | ent interested in having hig Congressman support legis- ‘ Jation. or urge . — in executive policy. wager be "> suspect. Id, aid hee” | Turning to "$201 itself, ‘the Note declared. that its. pro- visions “present vagueness problems similar. to those en- | countered under the conflict of interest provision. * Id, 347 ae 76. : . : r - : ‘it is obvious that neither the. Note nor Johaeon nla. plated ‘$201 as a “narrowly drawn statite”: _ Congress may | have been invited to-enact new legislation ‘containing a. “tight definition of bribery” so as to overcome vagueness problems depicted sin the Note. ‘Assuming that Congress — fs may constitutionally do so, it has not yet responded te the | invitation and: ‘$201 still remains a wide-ranging “genera , ‘~e 2 ‘ « ‘ ; . abe ved ; Ae = 79 Se eee e eer b of ore Fe oo A - ~ . . "criminal statute. ” “United States v. ‘Iohnson, 383 U. s. 169, 185 (1966). cee AD ae ei : Historically, the. ieitenad belhery: statute has ate con-. -‘strued “in the broadest possible manger.” United States v. - Glazer, 129 F: Supp. 285, 286 (D. Del. 1955). See also < United States v. Birdsall, 233 °U.S., 223, 230-231 - (1914); . Parks v. United States, 355 F. 2d 167; 168 (6th -Cir.. 1965); ' United States v. Raff; 161 F. Supp.276, 279 (M.D. Pa. 1958). According to the courts, legislation of this type is the bse ee " antithesis of a “narrowly: drawn statute”: If this statute be viewed solely from the staindipeint Se : of grammar. and phraseology, it is quite striking ped Ae ‘many broadening words are used in the statute: : any official capacity,” “any department or eens” -“on-any question, matter, cause, or proceeding”, which - may at. any time be pending, “which may .by law be ~ 5 ’ brought beforé him.” Consider: the number of dis- * =| junctive or alternative persons, actions, or ‘sitiAtions” ; referred to: “an officer or employee of, or person att- * ~ ing for or on: behalf: of the. United States”; “any de-- ok ', partment or agency”, “decision-or action”, “any ques- = -._ - ‘tion, department or agency”, “decision or action”, “any: .°. ° - question, matter, cause, or proceeding which may at ~ - “any time ‘be. pending, or which may by law be bréught - |. °. before him”, “in his official capagjty,. or in his place - ” of trust ‘of profit”.. There is no verbal requirement that the matter: be pending before thé official at, the tirne of the bribe. It is sufficient if it ‘ ‘may at any time be pending”, or if it “may by#law be brought before * him” ‘at some time in the future. - Certainly, in the face of such sweeping language and thie purpose it was designed. to accomplish, we find no — reason- to find. any’. intent on the part .of Congress’ that the statute must be narrowly construed, exclude any .person or any conduct fairly within the broad 2 statutory: ambit. ‘To this,statute (and its companion, °__ _ , 18 U.S.C:A. $201), the federal courts have properly ~ 9 ‘given 3 an oo liberal interpretation. . ieee cae . Spy aan Gee Sep lad Pa sO | ° 3 .- , Wilson v. United States, 230 F. 2d 521, 524-(4th Cir.), cert denied | 351 U. S. 931. (1956) (italics in original). —. - When §201, was enacted in its present form. as part of the. 1962 revision, it did” not restrict the broad sweep of these interpretations: ° ° . “The bill does not limit in any way the broad inter-. : pretation that the courts have given to the bribery - statutes: rather, the intent is to insure that this broad _ interpfetation’ shall be given universal application.” ’ - House Rep: 748, Comm. on the sney ‘Sith Cong., . 1st Sess,“17 (1961). .) A reading of $201, its definitions and substantive lan- guage, and its interpretation by the federal courts negates. ‘any supposition that it can be viewed as. “narrowly drawn” - under any’ reasonable definition. -If- anything, its termi- ~ nolegy is more sweeping than the provisions of 18 U.S.C. $371, the “general criminal] statute” held ineffective to’sup- | port proceedings against Congressman Johnson. Nor can’ we. believe that Congress | meant by enacting $201 ‘to re. . strict the freedom of Congressmen | acting: within their . traditional sphere of legislative activity.. Cf., Tenney v. Brandhove, 341 US. 367, 376 (1951). Reliance by the Gov- ernment upon a generai-criminal statute so lacking in spe. 7 _cificity’ ‘and ‘so susceptible of unconstitutional application, ° wifh a consequent chilling effect: upon legislative conduct. _ninderlines the insubstantiality of this appeal. “9. “It is: interesting that. the Government should draw an ‘analogy between the federal bribery statute, 18° USC. $201, and legislation providing for trial of witnesses who _ behave contumaciously. before a congressional investiga- . tory committee. -Because Congress has inherent power to ; punish a nonmember for contempt, in order to protect its - institutional integrity, the Government asseris that Con-_ ment,.of the power, to- discipline its members (Govt. Br. 25-26). id .To equate judicial proceedings for contemptuous be- hav ior against witnesses with judicial proceedings against Congressmen is to miscomprehend. completely the Speech or Debate Clause.. The fallacy in the argument is so ap- _ parent as to warrant no further discussion. But what is’ especially noteworthy is that Congress, in providing an * alternative method of exercising its ‘own power, to punish for contempt, has enacted legislation which — in stark contrast to 18 U. S.C. $201 = — exemplifies what indeed might -be regarded. as a “narrowly drawn statute.” - . In 1857, Congress enacted a statute, one section of which declared it to be.a misdemeanor, punishable. by. fine and imprisonment, for a witness summoned by either House or’ any committee to refuse to. answer questions ‘upon any matter under inquiry. Act of January 24, 1857, c. 19, $1, 11 Stat. 155, now codified as 2 U.S.C. $192. Another sectiog@. , of the same statute,”* now codified as 2 U.S.C.- $194, states the manner in w hich: the courts. acquire jurisdiction over - | the contemnor. In its present form it’ provides as follows: - Whenever a w itness ‘summoned as mentioned in’Sec-.- : tion. 192 fails to appear to testify or, fails to produce * any books, papers, records, or docuniénts, as required, or whenever any witness so summoned refuses to an- swef any question * * * and the fact of such failure _ is reported.to either House while’ Congress is in sés- ‘sion, * * * it shall be the duty of the said President - of the Senate or the Speaker of the House, as the case. _ ’ may be, to certify, and the shall’ so certify, the state- * ment of facts aforesaid: under the_seal of. the Senate or House, as tlHfe case may be to the.appropriate United. | States attorney, whose duty it shall be to bring — matter before the grand jury for’ its action. — The provisions of $194 leave. absolutely no doubt that ae witness cannot be exposed to judicial proceedings w ithout ‘ \-=— * Act of January 24, 1857, c. 19, $3, bl Stat. 155. 3 < 82 . affirmative action — report and certificate — by the ag. i grieved: ‘House. In: re Chapman, 166 U.S. 661, 667 (1897) Unlike the federal. bribery statute, it does not entrust matters to the:unbridled discretion of the executive or‘ to -the suspiciohs of a grand.jury. The latter’ is denied all authority to inquire into contempts before either House of -- Congress unless and until the House of Congress itself has | acted... Practice under $194 has demonstrated ‘ ‘beyond any doubt that the House and the Senate have.consistently considered, and occasionally debated af length, resolutions authorizing the Speaker of the House or the Président pro tempore of the Senate to certify under the statute. Votes™ have often been cast against such resolutions?” Wilson v. United States, 369 F. 2d 198, 201 ee Cir. 1966.). ua) - As the Wilson case: makes slew. the federal courts will . not entertain a citation under $194 where it is obyious that the certifying House has not considered the ciiation on: its merits. In Wilson the action of the Speaker of’ ‘the House was held invalid and a conviction was rever sed be- cause the Speaker failed to make appropriate inquiry of the House’before certifying’ to the United States attorney. The court held that the Speaker was not under a “manda- tory” duty to certify until the Hotise involved had consid- ered on thé merits a report.of the committee before w . the witness had.appeared. A thorough review of legi tive history disclosed a desire on the .part of each House to mentor contempt citations as a meneek on hasty getion” on 6 x parte Frankfeld, 32 F. Supp. 915, 916-917, (D.D.C. 1040), Seetion 104 “requires a certification of the facts to the appropriate United States Attorney who is charged’ with bringing the matter before the grand jury.” thereby signifying “that the Sen ate has ~~ elected to, have the contempt punished’ asa misdemeanor.” United es a. Costella, 198 FY 2d 200, 203 (2d Cir.), cert. denied JH U.S. 874 (1952). a For example of such a debate prior toa céttifving resolution, see [nited States g. Ruamely, “345 US. 41, 47-48 (1953). . f% 3? oo? ™ 3 and to promote “reflection within the legislative branch” upon matters certified. Id. 203. In short, $194 embodies a deliberative ‘concept which is utterly lacking here: . [Prosecution would not be begun without the addi-, _ tional scrutiny within the legislative branch, a scfu- tiny that would at least embrace examining ‘the suf- . © ficiency of the statement of faets of alleged contempts, and consideration whether the incident consti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0061%3A06. Public record. Not legal advice.