Gravel v. United States – Oral Argument – April 20, 1972

Media for Gravel v. United States

Audio Transcription for Oral Argument – April 19, 1972 in Gravel v. United States

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Warren E. Burger:

— continue.

Robert J. Reinstein:

Mr. Chief Justice, may it please the Court.

As Your Honors will recall before the recess yesterday, we were discussing, whether or not, publication of a subcommittee record by Senator Gravel is protected by the Speech or Debate Clause.

We then demonstrated that the clause has always been read broadly to cover all necessary functions of legislators.

That the informing function for Congress is precisely just such an essential function of legislators and that the publication of the subcommittee record is a classic example of the exercise of the informing function.

There is much historical evidence for this proposition.

William H. Rehnquist:

Mr. Reinstein.

Robert J. Reinstein:

Yes, Your Honor.

William H. Rehnquist:

Is it possible to sustain your position by simply dealing with the privilege that you assert as a testimonial privilege without reaching the question of whether there is a privilege from criminal prosecution itself apart from the testimonial privilege?

Robert J. Reinstein:

Yes, Your Honor.

We are not arguing in this case that anyone is unaccountable except Senator Gravel.

We are not arguing that aides are unaccountable or that printers are unaccountable for what they did.

We have all along throughout this proceedings, Your Honor, treated this as a matter of testimonial privilege.

Our contention is that the Grand Jury cannot inquire into the privileged legislative conduct of Senator Gravel.

Now whether anyone can be invited or prosecuted is another matter.

If that occurs, the Court would then deal with it.

William H. Rehnquist:

Is it necessary to sustain your position to hold that Senator Gravel is immune to criminal prosecution?

Robert J. Reinstein:

Well, Your Honor, if Senator Gravel were engaging in privilege conduct, then it necessarily follows that he himself is immune from criminal prosecution as well as inquiry.

It does not necessarily follow that anyone else is, but as the clause is always been construed, the privilege for the legislator himself is both with respect to inquiry and with respect to accountability.

Now if for example, Beacon Press were prosecuted, the Court would then have to face the question as English Courts have had to, of whether printers of parliamentary proceedings to assist Senators are immune.

The English courts have said, yes, but that question is not presented in this case.

Byron R. White:

But the privilege you’re asserting would be inquiries related to the testimony — to the Legislative Act?

Robert J. Reinstein:

That’s correct, Your Honor.

Byron R. White:

If there were a separate prior act, that the Senator had been engaged in or the aide had been engaged in, that preceded the Legislative Act, but was connected with it, your privilege claim wouldn’t reach that I take it?

Robert J. Reinstein:

No, Your Honor, Our privilege is just with respect to activity which are legislative acts.

For example, we do not consider stealing to be a Legislative Act.

We do consider the holding of a subcommittee hearing —

Byron R. White:

A third person could be asked whether an aide or a Senator improperly removed something or stole something?

Robert J. Reinstein:

Yes Your Honor.

He could be asked whether a Senator stole something.

Byron R. White:

And —

William O. Douglas:

You can’t steal anything in the public domain, can you?

Robert J. Reinstein:

Well, whether or not, it’s a difficult question of whether or not it’s a crime.

I was thinking of something, stealing perhaps a car, for example, when you’re talking about stealing government property, you do have a difficulty of who the government property is —

Byron R. White:

That wouldn’t be a question to —

William O. Douglas:

But these are loaded questions.

I mean, you say yes then you’re stuck with the answer.

Robert J. Reinstein:

Well, no Your Honor, there’s no claim here, that’s Senator Gravel or anybody working for him stole the Pentagon Papers.

William J. Brennan, Jr.:

Well, isn’t there an issue of the source, either the aide or the Senator?

Where did that come from?

Isn’t that issue in this case?

Robert J. Reinstein:

Your Honor, the first time we saw that issue in this case was in the Solicitor General’s reply —

William J. Brennan, Jr.:

Suppose it is, and the inquiry goes to that they were improperly obtained before the aide joined the Senator’s subcommittee?

Robert J. Reinstein:

Before this – the aide joined the —

William J. Brennan, Jr.:

That’s right, before.

Robert J. Reinstein:

Yes.

William J. Brennan, Jr.:

Would there be any doubt in your mind that that inquiry could go forward?

Robert J. Reinstein:

No, that inquiry could go forward.

William J. Brennan, Jr.:

Even though the papers are related to or their use at least, related to the legislative function?

Robert J. Reinstein:

That’s correct.

Now the acquisition of the papers by Senator Gravel, we consider to be, excuse me, another story, unless he participated in a theft, but when one is talking about the mere receipt of the information by a legislator, that would fall within the category of legislative acts, but we have never said, that Dr. Rodberg cannot be inquired into for what he did before he joined Senator Gravel’s staff.

In fact —

Byron R. White:

Or what he did while he was on the staff, but wasn’t related to a Legislative Act?

Robert J. Reinstein:

That’s precisely correct, Your Honor.

The District Court found as a fact that the purpose of the inquiry, Dr. Rodberg, was to ask him about the preparation for the subcommittee hearing, the holding of the hearing and the publication of the documents, the subcommittee records.

That finding was not challenged by the Government on appeal and it wasn’t for the very simple reason that Senator Gravel possessed the documents, many days before he met or even heard of Dr. Leonard Rodberg.

Dr. Rodberg was hired especially well after the Senator received —

William J. Brennan, Jr.:

I gather, you don’t question either Mr. Reinstein, that if we had an act which related — which was not legislative because it was in the approach side of the executive department, someone in the executive department, you don’t say that that comes within the cover of the Speech or Debate Clause?

Robert J. Reinstein:

No, Your Honor, we do not, that was made clear in the Johnson case.

Interceding before executive agencies is not a Legislative Act because the legislator is going outside of his domain and he is interfering into conduct which is vested by law and by the Constitution of the Court and branches of the executive and the judicial entities.

William O. Douglas:

(Inaudible) First Amendment —

Robert J. Reinstein:

I beg your pardon, Your Honor.

William O. Douglas:

Then you would be squarely in the First Amendment?

Robert J. Reinstein:

There might be some First Amendment cases, but they would not be within the privilege.

Byron R. White:

Well, is your claim that indirectly, in with respect to the questions that maybe asked to Dr. Rodberg, is your claim that he may not be asked questions that he himself is immune under the Speech and Debate Clause or is it that, it’s necessary to protect him, to protect — to forbid the questions in order to vindicate Senator Gravel’s Speech and Debate privilege?

Robert J. Reinstein:

Mr. Justice White, we do not think that Dr. Rodberg has any independent privilege or anyone else in this case.

We think the privilege is Senator Gravel’s and in order to forbid inquiry into Senator Gravel’s legislative acts, we think it cannot be done through the interrogation of those persons who assisted him in the performance of those legislative acts.

Just like the Attorney Client privilege, that belongs to your client, no one would say, it’s the attorney’s privilege, but it can be defeated by questioning the attorney.

The (Inaudible) privilege is exactly the same.

Warren E. Burger:

How can you determine the scope of the privilege until you know what question is to be put.

I am speaking now with reference to the assistant, the aide, the staff member?

Robert J. Reinstein:

Well as I said, Mr. Chief Justice there was a finding by Judge Garrity and Judge Garrity based that finding on some evidence was introduced by Dr. Rodberg.

Our allegation is the fact that they were not denied by the Government, not only that but the Government went ahead and said, we will make these allegations the basis of our legal assumptions and refused to deny it.

We did offer the government an opportunity to specify that the inquiry would go into non-legislative activities.

We asked the government to make such a specification.

The government declined to do so and instead the government just proceeded in that way.

Warren E. Burger:

Well but, the point, I am raising to you is this, may it not be that many questions might be put to him that would be concededly beyond the privilege and that he would have no objection to answering?

Robert J. Reinstein:

Yes, thats why we’ve asked for protective orders, only prohibiting those questions which are within the privilege.

Warren E. Burger:

Well, then someone’s got to define the privilege of course?

Robert J. Reinstein:

Yes, Your Honor, that’s why we’re arguing the publication case here.

Warren E. Burger:

Yes, but that definition has got to be decided with reference to each question, isn’t that not true?

Robert J. Reinstein:

Well, Your Honor, a protective order which says that, if Dr. Rodberg may not be asked questions about preparation for the hearing and the holding of the hearing and the publication of the record which seem to me be pretty easily enforceable.

We did ask for a specification of questions in advance because of the kind of enforcement problems that we have, because Senator Gravel isn’t there.

But we were persuaded by the District Court and by the Court of Appeals, that a protective order would be adequate.

The dilemma of course is, that it is Senator Gravel’s privilege and he must have some mechanism of enforcing it.

He can’t rely on other people to make a decision to perhaps risk contempt in order to vindicate his own privilege.

Now the specification technique of — to which I am alluding has been used by the Government before in privilege cases, such as husband-wife privilege case and as a matter of fact there was a fairly specific specification in the Caldwell case of what kinds of questions were going to be asked to Mr. Caldwell, but we think that a general protective order dealing with the acquisition by Senator Gravel on the receipt, the preparation for the subcommittee hearing, the holding and publication is cleanly sufficient.

Harry A. Blackmun:

Mr. Reinstein, I was interested in your comment a little while ago that the Senator apparently hadn’t known Dr. Rodberg to this day.

Yesterday, I asked Senator Ervin a little about the acquisition the Dr. and the staff.

Who is he, is he a PhD?

Robert J. Reinstein:

Yes, Your Honor, he is a doctor.

Harry A. Blackmun:

Do you feel inclined to expand inclined to expand a little bit on his sudden accusation to the Gravel staff?

Robert J. Reinstein:

Well, Your Honor, I don’t think it will be proper to go into it very deeply.

I will say that Dr. Rodberg’s credentials are set out in an amicus brief, which he has filed.

Senator Gravel was interested in finding someone who had specialty in Foreign relations.

This is not at all unusual to hire someone specially.

It doesn’t make much sense, we don’t think to hire an aide six months before you need him.

Senator Gravel looked very hard for someone with Dr. Rodberg’s credentials and he hired him at that time.

All of this occurred after Senator Gravel obtained the material.

I’m very reluctant to go into it any deeper because we are in very delicate position that apparently the Grand Jury would like to find out this information and we consider a lot of privilege.

Now what the Solicitor General is suggesting —

Harry A. Blackmun:

Do you concede, however, that he is not on the payroll?

Robert J. Reinstein:

Your Honor, I would — there is no evidence in the record that Dr. Rodberg is not on the payroll, and I would prefer not to get into the financial arrangements which have been made.

There was an affidavit by the Sergeant-at-Arms who is the official record keeper of the Senate, that Dr. Rodberg is one of the staff of Senator Gravel.

Senator Gravel’s staff by the way is not very large.

I think he only has six aides.

Thurgood Marshall:

Well, is it your position that it makes no difference whether he is on the government payroll or not?

Robert J. Reinstein:

That’s right, Your Honor.

We do not think that the Grand Jury can inquire into the Privilege Acts.

The Congress in turn interrogating people who assisted him, whether they happen to be employees of his or not.

There is a particular —

Thurgood Marshall:

It doesn’t matter — it doesn’t matter whether he is a employee or not, it doesn’t matter whether he is paid or not, does it?

Robert J. Reinstein:

No, Your Honor.

If the Congressman asks someone for advice on how to vote on pending legislation, the position of the Solicitor General is that this person can be subpoenaed before the Grand Jury and asked what advice did you give to the Senator and what did the Senator tell you.

We think that will be a blatant violation of separation of powers and of the Speech or Debate Clause.

Potter Stewart:

Well, you don’t need to go that far in this case because as I understand it at least, it — there’s no question but what — he was an aide to the Senator?

Robert J. Reinstein:

That’s right, but we’re —

Potter Stewart:

But you don’t need to go as so far as to say that if he asks the President of a big corporation how should I vote on this and maybe in connection with the advice gets $10000 along with it that, that’s under the Speech and Debate Clause.

You don’t need to go that far at all.

There’s — there’s no issue as whether or not he was an aide as I understand it, am I mistaken about that?

Robert J. Reinstein:

No, Your Honor that’s correct, there’s no issue on that.

However, there is also a proposed interrogation of people who assisted the Senator in printing the record.

Those people historically have been considered very important in assisting Senators and Congressmen in performing their informing functions.

We don’t think that they could be interrogated either.

Your Honor is quite correct in the hypothetical that you pose that, that will be very different, but that’s because barrage undetected by the Clause, so it’ll be a reason for that.

Your Honor, I see my time is up.

Warren E. Burger:

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

First in supplementing the response to Mr. Justice Blackmun’s question, I think it may be said that, Dr. Rodberg is the physicist.

In my view this case does not involve any fair application of the Speech or Debate Clause.

The case has now been argued before the Court for nearly an hour and no one has yet referred to the text of the Speech or Debate Clause.

It appears at the bottom of page 2 and the top of page 3, of the government’s principal brief here.

Of course, I know it is familiar to the Court, although it has been involved in a surprisingly small number of decisions of this Court.

But it seems to me, relevant and appropriate, that before proceeding further with this case, we get back to the bedrock.

What does the Constitution say?

The Senators and Representatives, nobody else, the Senators and Representatives shall receive compensation and they shall in all cases, except Treason, Felony and Breach of the Peace, which covers almost everything, be privileged from arrest during their attendance at the session of their respective Houses, no effort to give a sweeping immunity to Congressman or Senators, 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.

Now there are three groups of words of limitation in that provision.

The Senators and Representatives, not the Senators and Representatives and those associated with him and those who assist him and members of their family and staff and servants as it used to be in England, and which they we’re trying to get away from, and speech or debate.

Now speech or debate is not everything they say, everything they do, and finally in either House.

It is suggested that our argument here, and I must confess I have a little feeling like, arguing that no law means no law, but it is suggested that, our reference to stylistic precision which is the phrase we use in our brief.

This is a case where it seems to me, that the language was very carefully written and very carefully intended.

It is suggested that, this is simply the language of the committee on style.

They didn’t mean any such limitations and that that there is evidence by the language which had been used by the committee on detail, which was the only place in the convention where the matter was considered.

There surprisingly there is very little available in the history of the convention, but let’s look at the language which had been used by the committee on detail.

This appears at the bottom of page 92 of the big red brief, Senator Gravel’s main brief.

Now the committee on detail and which is what the convention voted for wrote, freedom of speech and debate in the legislature.

Well now who engages in speech or debate in the legislature, no one but Senators and Representatives.

Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place, out of the legislature.

And I would suggest that there is no significant difference in meaning, between the phraseology of the committee on detail and that of the committee on style.

The committee on style did make it a little more elegant, but it did not limit it beyond what had been adopted before.

Erwin N. Griswold:

Now the significant fact in this case with respect to this language, is that the Senator Gravel is not being questioned by anybody in any place.

The Constitution and the privilege granted by the Constitution to Senators and representatives is being fully compelled with.

There is an analysis of this clause, which as far as I know does not appear as yet in any of the opinions of this Court, but which I think clarifies it’s meaning and application, and on the basis of which the privilege itself, and the several cases which have been decided about it fall very well in the place.

Questioned, is the keyword at the end of this constitutional provision, and questioned may be read in two senses.

First, as I have just indicated with respect to questioning Senator Gravel.

Perfectly clear that Senator Gravel cannot be questioned about any speech or debate which he has made.

It’s not necessary here to determine the limits of speech or debate, because Senator Gravel is not being questioned.

No subpoena has been issued against Senator Gravel.

There is no suggestion that he is being questioned, but the word question can also be read in another sense, that is of being subject to charges in which reliance is put on evidence of speeches or debates by the member.

But Senator Gravel is not being questioned in this sense.

He has not been charged with anything.

He is not on trial, there is not a question of the use of evidence of other persons with respect to a speech or debate being directed against him.

He has not been indicted, he has not been summoned, he is not subject to charges, and I would suggest that when those conditions exists, the Speech or Debate Clause is fully satisfied.

This case is not like the Johnson case, in this Court.

The Johnson case was an indictment of a Congressman, based upon facts arising out of a speech which he had made in the house of representatives.

And the Court held that evidence with respect to that speech could not be introduced in the trial against Johnson without violating the Speech or Debate Clause.

It was not merely that he could not be someone than required to testify, but he could not be required to answer a charge based upon the speech which he had given.

That is not involved in this case. Senator Gravel had not been summoned and required to testify.

He is not required to answer a charge based upon the speech, but this case is like the Johnson case in the Court of Appeals for the Fourth Circuit before it got here.

You will recall that there were two Congressman who were indicted, and two private individuals, and they were all indicted for conspiracy, and for engaging in certain acts or in aiding or abetting those acts.

And it is true that the Court referred on page 176, in the Johnson opinion to the fact that, the constitutional infirmity infecting this prosecution is not merely a matter of the introduction of inadmissible evidence and Senator Gravel in his brief says that that’s a decision that this evidence is inadmissible, and therefore can’t be acquired.

Well, we agree that it is inadmissible against Senator Gravel, if there ever should be any sort of a charge against Senator Gravel.

But the Johnson case in the Fourth Circuit, involved two persons who were not Congressmen and their convictions were sustained in the variable opinion of Chief Judge Soboloff.

I’ve read it again a few days ago, and it is a remarkably fine opinion and this is the language which is used with respect to them at page 193 of 337 F2nd.

Count one of the indictment is unconstitutional, as applied to defendant Johnson, but as none of the privileges of Article 1, Section 6, pertain to the defendants who are not members of Congress, their attack on the first count unlike Jonson’s is not sustained.

Now it is true that that this Court did not review that decision, and expressly left open its propriety and the decision in the Johnson case itself which involved only Congressman Johnson, but I submit that the decision reached by the Fourth Circuit Court of Appeals in Chief judge Siboloff’s opinion is a sound construction.

Potter Stewart:

That the case involved a conspiracy, about to give and accept a bribe, didn’t it?

Erwin N. Griswold:

It involved both the conspiracy to give and accept — well, it involved both the conspiracy and the substantive offense.

Potter Stewart:

Of bribery?

Erwin N. Griswold:

There were five or six accounts of the substantive offense of — as I record Mr. Justice , conflict of interest rather than of bribing (Voice Overlap) and appearing before the executive branch of the government.

Erwin N. Griswold:

As you will recall, the case went back to the trial court.

Congressman Johnson was convicted without the use of the evidence of the speech.

That conviction was affirmed by the Fourth Circuit Court of Appeals and this Court denied certiorari.

It is also true that the two other persons in the Johnson case were not aides.

They were private citizens, although they were actually aiding Congressman Johnson and I suppose he could have put his finger down, somebody and said you’re now my aides and since no payroll provision was involved, they could have been the same, but there is no suggestion that they were nevertheless, I repeat my suggestion for the Court’s consideration that Article 1, Section 6 does not provide any protection to anyone except Senators and Representatives.

It does not provide any protection to aides.

I know of no decision of this Court which has held that aides or third persons are entitled to any benefits under the Speech and Debates Clause.

Perfectly plain that Congressmen and Senators are entitled to great benefits under the Speech and Debate Clause and there is nothing in this record which in any way impairs the privilege which is given to Senator Gravel by the Speech or Debate Clause.

He is not being subject to question himself.

He is not being required to answer to charges based upon evidence relating to a Speech or Debate.

Potter Stewart:

How about executive privilege which unlikely Article 1, Section 6 is only to be — is only to be found in the implicit provisions of the Constitution?

Surely that protects more than the President, the Vice- President, doesn’t it?

Erwin N. Griswold:

In the first place the limits of the executive privilege are not easy to state.

As far as I know rarely have ever been considered by this Court and as far as I know have never, it has never been suggested that they would prevent the indictment of an executive aide for the commission of a crime or that they would prevent his being subjected to inquiry by a grand jury.

Potter Stewart:

As to what the aide told the President or the Vice-president?

Erwin N. Griswold:

There might be some limitation on the nature of the questions that could be asked but there is no — I don’t know of basis upon which it could be said that he could simply refuse to appear before a grand jury because he was an executive.

Potter Stewart:

It seems to me that your argument in a way boils down to the proposition that a privilege that is explicitly recognized and protected by the Constitution is narrower privilege than one that is not such as executive privilege?

Erwin N. Griswold:

There is I think, Mr. Justice another privilege analogous to the executive privilege, not based on Article 1, Section 6 but simply based on the same principles as those involved by this — applied by this Court in Barr against Matteo where you will recall an employee, an executive employee having no direct connection with the President was held privileged from liability for slanderous remarks which he included in a letter which he wrote in good faith in the course of business.

And I would have no doubt that aides to Congressmen and Senators are subject to the same kind of privilege with respect to civil liability which was involved in Barr against Matteo.

I think there may well be limits as to the extent to which an aide can be questioned with respect to — for example, did you write speech, matters directly related to Speech or Debate.

I do not know the extent of those limits and I don’t think that they are involved in this case.

William J. Brennan, Jr.:

Where — from where — what do they derive from Mr. Solicitor General, whether — what — from what did those limitations derive?

Erwin N. Griswold:

They would have to be on a common law basis of some kind derived out of — well either common law or derived out of conceptions of separation of powers the limits of which are far clear to me.

William O. Douglas:

What (Voice Overlap)) that the secretary and Congressman Johnson would have testified to of these things putting (Inaudible)

Erwin N. Griswold:

I believe that is involved in some of these cases of prosecutions of Congressmen and Senators and this is never been — I hate to say, it’s never been suggested, but it is never been held that such evidence is not admissible in a criminal charge against a Congressman or Senator.

William O. Douglas:

Well we said in the Johnson case that any person who helped the legislator in respect to Speech and Debate cannot be inquired if the object to attack legislator’s motives speaking —

Erwin N. Griswold:

Cannot be inquired with respect to a charge against the Congressman or Senator.

I don’t think that it is —

William O. Douglas:

Well if you’re a prosecutor it depends how you’re making a case, get the staff of the Senator or the Congressman, put them on the stand and they know everything goes on in office?

Erwin N. Griswold:

But there is no suggestion here that there is any effort to make a charge against Senator Gravel.

William O. Douglas:

Well we don’t know?

Erwin N. Griswold:

It is perfectly plain —

William O. Douglas:

(Inaudible) session, is it not?

Erwin N. Griswold:

If there is any effort to make a charge against Senator Gravel, he has complete protection under Article 1, Section 6.

William O. Douglas:

Even though they get the testimony from —

Erwin N. Griswold:

Even though they get the testimony from any place, Senator Gravel cannot be required to — cannot be questioned in any other place with respect to anything which is fairly a Speech or Debate.

William O. Douglas:

Why does this group that he works with, have immunity?

Erwin N. Griswold:

But there may be many other people involved in this.

This is an effort through a grand jury to —

William O. Douglas:

We’re just looking at one now and why isn’t he inside of it?

Erwin N. Griswold:

Because he is not a Congressman or a Senator.

William O. Douglas:

But they finally get at the —

Erwin N. Griswold:

Mr. Justice I suggest that is a pure inference on which there is no basis.

There are many other people involved in —

William O. Douglas:

We hear in the brief in the Senate yesterday that the, there may be disciplinary actions against the Senator?

Erwin N. Griswold:

That’s entirely up to the Senate.

William O. Douglas:

I know, what I mean to say is to say Rodberg is non-actor and this is —

Erwin N. Griswold:

So far as the Executive Branch of the government —

William O. Douglas:

(Voice Overlap) other things —

Erwin N. Griswold:

So far as the Executive Branch of the government is concerned, there is Senator Gravel is not being required to answer in any other place with respect to a Speech or Debate.

He is not himself subject to questions which I think is one aspect of the — shall not be questioned in any other place and he is not himself the subject of charges.

Byron R. White:

Mr. Solicitor General, do you object to the limitation that the Court of Appeals put on the witnesses not to testify or not — they could not be forced to testify about the purposes and motives of the Senator?

Erwin N. Griswold:

Yes Mr. Justice we — I do.

Byron R. White:

If you aren’t interested in ever moving against the Senator, why would you — why would anybody want to inquire about the Senator’s motives and purposes?

Erwin N. Griswold:

Motives, I don’t know.

The —

Byron R. White:

I don’t know, what that word means?

Erwin N. Griswold:

What I think–

Byron R. White:

What that word means?

Erwin N. Griswold:

Mr. Justice is that there should not be any limitation on the inquiry which can be made of Dr. Rodberg or of the Representatives of the MIT press and the Beacon Press.

Byron R. White:

But what about possible damage would there be to the government if they couldn’t ask witnesses about the motives and purposes of senatorial conduct if the government absolutely concedes is immune?

Erwin N. Griswold:

Mr. Justice it could be in a wholly different case.

The motive was to get revenge against somebody else.

Having found that the motive was to get revenge against somebody else that might lead to another witness which would provide evidence as to what was being done.

The motive may be relevant in the process of investigating a criminal charge.

Byron R. White:

Against somebody else?

Erwin N. Griswold:

Against somebody else and this is a case where it seems to me and in fact there is something rather whimsical about this whole situation.

The government is charged that it should keep its own house in order, it should protect the privacy of its papers.

If the papers are stolen, they can be credit and nothing can be done about it.

Then the government seeks to undertake a regular organized, centuries old proceedings through the Grand Jury and the Grand Jury is made up of citizens to inquire into the source of what may have been a crime.

The receipt of stolen property, the violation of undertakings of one kind or another.

I am not suggesting that Senator Gravel did this.

I am suggesting that it is entirely appropriate to inquire into the question whether any of these offenses which Congress has laid down by law have been committed and that there is no reason why Dr. Rodberg or anyone else should have a privilege to refuse to respond to questions relating to those matters which may lead to charges against other persons than Senator Gravel.

There might even charges against Dr. Rodberg or against the other people.

Of course Dr. Rodberg has the privilege against self incrimination which he can exercise any time he thinks it is appropriate.

But I know no basis upon which it can be said that they cannot even be asked about this because it collaterally relates to something done by a Senator when there is no suggestion then any charge can be brought against the Senator or that he can be required to answer with respect to it in any other place.

William H. Rehnquist:

Mr. Solicitor General —

Thurgood Marshall:

Mr. Solicitor General, am I correct that you wouldn’t be able to question the Senator as to where he got the papers from?

Erwin N. Griswold:

Well, Mr. Justice we are not able to question the Senator about anything insofar as it relates to speech or debate.

Thurgood Marshall:

Well, this was related you agree to speech and debate?

Erwin N. Griswold:

I am not contending to the contrary, it is a little tenuous.

Thurgood Marshall:

That’s good enough for me, but you say that you could ask the secretary where you got them from?

Erwin N. Griswold:

Yes Mr. Justice, yes.

Thurgood Marshall:

That’s your position?

Erwin N. Griswold:

Let me take this case.

This is an extreme case, but perhaps to tests it.

Suppose there is a close debate, a close vote coming up in the Senate.

The best estimates are that it will be 48, 47, but you can’t be quite sure.

And the Senator goes to his aide and he says, you go out and kidnap Senator X and you treat him kindly and take care of him, but just don’t let him come to the Senate vote.

Now, this is obviously a legislative matter directly related to a legislation and the aide goes out conducts the detention of the member whose vote is not wanted.

Erwin N. Griswold:

Now, it seems to me inconceivable that it can be said that the aide is not subject to inquiry by a grand jury as to what he did and as to why he did it.

Thurgood Marshall:

Well, I think we misunderstood each other.

I didn’t infer any criminal action at all.

Erwin N. Griswold:

I am sorry Mr. Justice?

Thurgood Marshall:

I didn’t infer any criminal acts at all?

Erwin N. Griswold:

I know but I am suggesting, I am suggesting a criminal action.

Thurgood Marshall:

Well, kidnapping is criminal, isn’t it?

Erwin N. Griswold:

Yes, I say I am suggesting a criminal action.

I am saying its a criminal action, but the language makes no differentiation between criminal or any other kinds of action.

Thurgood Marshall:

Well, then let me put it this way.

Erwin N. Griswold:

And if you would —

Thurgood Marshall:

You can ask a Senator where you got the material you used in your speech?

Erwin N. Griswold:

Yes Mr. Justice.

Thurgood Marshall:

You can —

Erwin N. Griswold:

Yes.

Thurgood Marshall:

— you can ask his secretary?

Erwin N. Griswold:

Yes Mr. Justice.

No, I can’t the Senator, I am sorry.

You can’t ask the Senator.

The Senator cannot be questioned in any other place, but you could ask his aide where he got the material.

Thurgood Marshall:

(Inaudible)

Erwin N. Griswold:

That’s —

Thurgood Marshall:

(Inaudible) exact same —

Erwin N. Griswold:

You could ask him exact same question because the privilege to Speech and Debate Clause does not protect anyone except Senator and Representatives and they shall not be questioned in any other place.

William H. Rehnquist:

Mr. Solicitor General I think the executive branch over a period of time and as I understand has taken the position that there is executive privilege for the President’s top aides in order that he may have the benefit of their disinterested advice, they can’t be questioned as to advice they give him.

Would you concede that Mr. Rodberg as an aide would have at least that degree of privilege?

Erwin N. Griswold:

Mr. Justice, I think he would but not under Article 1, Section 6.

William H. Rehnquist:

But as to some other principles —

Erwin N. Griswold:

Under some implication arising out of the separation of powers I would think he would have some kind of privilege there the limits of which are not clear to me and which of course I think would vanish the moment there was a charge of crime with respect to and I suspect the same would be true with respect to —

Potter Stewart:

Back to what, now the moment there was a charge of crime with respect to what?

Erwin N. Griswold:

Even the speech you debate.

If for example the question to be put to the aide is did you deliver $5000 from X corporation to the Senator for your speech, I think its the —

Potter Stewart:

Well that’s different, but how about just a charge of crime against John Smith, the President of Smith Corporation or deal confined to a charge of crime against the President or the Vice-president or the aide himself?

Erwin N. Griswold:

I would make it crime of any sort.

Potter Stewart:

Of any sort by any one?

Erwin N. Griswold:

That’s right.

Potter Stewart:

Then the executive privilege vanishes?

Erwin N. Griswold:

It is the function of the Grand Jury to inquire into crime.

Potter Stewart:

I think the assertion over the years has been little broader than that, hasn’t it of executive privilege?

Erwin N. Griswold:

I don’t know of any where it has been asserted to arise against a substantial charge of crime and let me point out that we are not without overtones of crime here.

There may well be receipt of stolen property and other charges which it is appropriate for the executive department, not merely appropriate but it’s duty to inquire into.

The speech of debate was I suggest again has no application to non members by it’s terms and it has never been applied to non-members by this Court, never.

I think —

William O. Douglas:

Then really it amounts to (Inaudible) because as a practical matter you can visit, prepare the case through the staff of the Senator or Congressmen?

Erwin N. Griswold:

You can, but you can’t charge the Senator or Congressman to it amounts to a great deal.

The Senator or Congressman is immune from either being himself questioned or from being charged with respect to his speech of debate.

That’s what this Court decided in the Johnson case and we fully accept that and I don’t regard that as of no consequence.

The Senators and Representative are immune from prosecution with respect to there speeches or debate.

They are immune from several liability with respect to their speeches or debate.

They can’t even be required to respond to question with respect to their speeches and debates.

That is a great and historic privilege which ought to be maintained, which I fully support, but which does not extend to any other persons than Senators and Representatives.

Warren E. Burger:

Mr. Solicitor General under the Johnson case, would it be theoretically at least true that if an indictment charged a member of either House with some crime related to making the speech, making the speech for a bribe for example, that the member could if he wanted to take the risk simply refuse to appear, refuse to answer and let the case go against him by default and then stand on the privilege?

Erwin N. Griswold:

Well,Mr. Justice in Powell and McCormack, there is a footnote in the opinion of the Court which says that the member is required to answer and the raise the privilege.

And I should think if I were advising a Congressmen or Senator that I would suggest that he get counsel and that the proper representations be made to the Court.

Warren E. Burger:

That’s why I put in the term feel theoretically he could even refuse to answer if you take the literal language of the Speech or Debate Clause?

Erwin N. Griswold:

Yes if you take the literal language he could and I suspect that if you add a strong enough, clear enough case that a Congressman or a Senator could be successful in doing that, but I wonder a little why he would want to when all he has to do is to appear in the Court through counsel and do raise the privilege, citing the Johnson case.

William O. Douglas:

At the start of the argument, you suggested that we read the Article 1, Section 6.

In following your argument that I’m wondered if perhaps you would have (Inaudible) but it denies because it doesn’t talk about indictment, it says shall not be questioned?

Erwin N. Griswold:

I agree Mr. Justice.

William O. Douglas:

It’s much broader than —

Erwin N. Griswold:

And I have tried to say there are two ways in which he can be questioned.

One is to sit on the witness stand and be asked questions himself and he can’t do that.

And the other is that he be required to answer in some way, with respect to what he has done.

Now the most natural way for that, would be by way of indictment or a criminal charge, and Article 1, Section 6 protects him from that.

But it also protects him against civil liability for slander or anything else, and it would protect him from being required to appear as a witness in somebody else’s case to testify as to what he said in a speech or debate.

He is himself protected in full against being questioned in any other place, but I see no basis for saying that any one else is protected by Article 1, Section 6.

William O. Douglas:

But if you draw the lines of, say that the staff cannot be summoned then you’re protecting him?

Erwin N. Griswold:

And you’re protecting, you’re protecting a lot of other people far beyond the —

William O. Douglas:

May be so —

Erwin N. Griswold:

— requirement of the constitution and —

William O. Douglas:

I think it’s not indictment, part of this is just (Inaudible) and —

Erwin N. Griswold:

Yes, Mr. Justice and of course, a Congressman, Senator runs that risk from the press and from the constituents who may have write libelous things about him.

As long as Senator Gravel is not himself required to answer in any place, I think that the privilege is fully vindicated.

I’m not making — there is a passage in Jefferson’s Manual which is the great worth in this area written by the man who one of great founders of, he was not at the constitutional convention and the manual is the foundation of all of the procedure in the House and Senate, this appears on page 24 of our brief.

It was probably from this view of the encroaching character of privilege that the framers of the Constitution and they have cared to provide that the law shall bind equally on all and especially that those who make them shall not exempt themselves from their operation, have only privilege Senators and Representatives themselves from the single act of arrest in all cases, except Treason, Felony and Breach of the Peace during their attendance at the session of their respective Houses, and in going to and returning from the same and from being questioned in any other place for any speech or debate in the House.

And I would like to suggest, that the decisions of this Court with surprising consistency support our position that the Speech or Debate Clause, provides no privilege to aides.

Perhaps the first case involving this matter is Kilbourn against Thompson, which was a suit against the speaker of the House and against the sergeant-at-arms of the House, and the House had by vote decided that Thompson was in contempt and had ordered him to be arrested and the Speaker issued a warrant directed to the sergeant-at-arms to arrest Thompson.

Thompson got habeas corpus and he sued the Speaker and the sergeant-at-arms and this Court held that the suit must be dismissed as to the Speaker, he was protected by the Speech or Debate clause and it held with the suit could be maintained against Thompson.

Although he was not just a aide to a Congressman or a Senator, but was one of the officers of the Senate.

He was not protected by Article 1, Section 6 and we know that resulted in a judgment for $20000 in favor of the plaintiff and which was eventually paid out of the Senate’s funds.

And then we have more recently, the case of Dombrowski against Eastland, which was a suit against a Senator and against the chief counsel of his committee.

And the Court held that the suit could not be maintained against the Senator at least facts alleged on that case, but he held that it could be maintained against the chief counsel of the committee and the case went back for a trial against the chief counsel.

And more recently we have Powell against McCormack, which was Congressman Powell’s suit against members of the House of Representatives, the Speaker and other members, and against the doorkeeper and other officers of the House of Representatives.

And the Court held that the speaker and the other members could not be sued, they were protected by Article 1, Section 6 of the Constitution, but it also held that the officers of the House of Representatives who were only doing what they were told, were subject to being questioned in the courts and were the basis for a declaratory judgment which this Court send the case back to the lower court to consider and to enter.

Byron R. White:

Mr. Solicitor General, positing that or assuming that publication of documents in a committee hearing would be criminal except for the fact that it was in a committee hearing and that the Senator or Congressman himself couldn’t be prosecuted for that act of putting the secret documents in a committee hearing record.

You would say that the aides who aided and abetted him and who participated in that act could be prosecuted for that?

Erwin N. Griswold:

Yes, Mr. Justice.

Byron R. White:

Yes.

Erwin N. Griswold:

If the sergeant-at-arms of the Senate who obeys the Speaker’s warrant can be sued, if they doorkeeper who didn’t pay Senator Powell, Congressman Powell can be sued, I know of no reason why an aide is not subject to the full responsibility of the criminal law.

Warren E. Burger:

Mr. Solicitor General — finish.

Erwin N. Griswold:

And if commits a crime, I know of no reason why he cannot be prosecuted for it and in particular, I know of no reason why he cannot be questioned about it, unless he chooses to raise the Fifth Amendment which is available to anyone.

Warren E. Burger:

In Dombrowski against Eastland, who was the particular aide with that this Court said had no immunity?

Erwin N. Griswold:

He was the chief counsel of this subcommittee.

Warren E. Burger:

He was the legal advisor to the chairman and of the Judiciary Committee and to the entire Judiciary Committee, was he not?

Erwin N. Griswold:

Yes, Mr. Justice.

Warren E. Burger:

And then this Court held he had no immunity, is that right?

Erwin N. Griswold:

He was the duly appointed long time established and properly paid.

The chief counsel of the committee which was involved in the —

Potter Stewart:

Mr. Sourwine wasn’t it —

Erwin N. Griswold:

Mr. Sourwine.

Potter Stewart:

I thought was the internal security committee —

Erwin N. Griswold:

Yes.

Potter Stewart:

Not the judiciary committee?

William O. Douglas:

He wasn’t questioned though was he?

This was — the question was alleged (Inaudible)

Erwin N. Griswold:

He was being questioned to the extent of being liable criminally in the courts of Louisiana and civilly in the Federal courts.

Potter Stewart:

And it involved a constitutional claim I mean part of claims.

Erwin N. Griswold:

Yes.

Potter Stewart:

Based of the plaintiffs — a person’s constitutional —

Erwin N. Griswold:

Yes, that I know no any reason why that rises higher than —

Potter Stewart:

And so of course to the Powell case?

Erwin N. Griswold:

Then the duty of the Executive to enforce law.

Warren E. Burger:

And when Mr. Sourwine got to trial day in those cases, then he would be required to take the stand and to answer questions, would he not under the civil case?

Erwin N. Griswold:

Yes.

Yes, Mr. Justice.

Byron R. White:

And to pay a judgment in particular that there was one recovery?

Erwin N. Griswold:

There was — we know that there was a recovery in Kilbourn and Thompson.

I have tried to find out what actually happened in Dombrowski and Eastland and apparently it went back to the lower Courts and was finally dismissed for want of prosecution.

But I don’t think that effects the fact that Mr. Sourwine was held to liable if it had been pressed and that he would have been required to answer.

After all what’s involves here, is an effort to inquire into the question whether the crime has been committed.

Erwin N. Griswold:

If a crime has been committed by a aide or by a third person and it may well not be as a result of the investigation that it will be concluded that the aide committed any crime.

It may well be that his evidence will lead to someone else who may have committed a crime and that there may be appropriate basis for bringing charges against some third person.

And I repeat, that there is nothing in the Speech or Debate Clause or in any decision of this Court which prevents the inquiry of aides or third persons as to whether a crime has been committed.

If there is evidence that a Senator has committed a crime not connected with Speech or Debate, he can be prosecuted.

It was so decided in the Johnson case and decided here in the Johnson case because the Court made it plain that the case should go back and that Senator Johnson could be tried for a crime committed while he was Congressman.

If there is evidence that a Senator has committed a crime which is adequately connected with Speech or Debate, he cannot be prosecuted, he can only be subject to the discipline of the Senator.

Byron R. White:

But I suppose if Senator in preparation for his Speech or Debate committed a crime such as —

Erwin N. Griswold:

Well, that’s why I (Voice Overlap)Mr. Justice which is adequately connected with Speech or Debate.

I don’t know what the limits are.

I think they ought to be rather broad.

If — suppose a Senator by his own hands goes out and steals a material which he when uses in a Speech or Debate, I don’t know whether he would be exempt from prosecution for the theft.

It is my position that if he directs his aide to go out and steal material for use in the Speech or Debate that the aide is subject to prosecution, that the aide has no privilege under the section — Article 1, Section 6 and that the Senator cannot extend an umbrella over him because the Senator has a privilege.

With respect to the Senator we make no other contention that he can be subject only to the discipline of the Senate with respect to a matter which is adequately connected with Speech or Debate, but there is a nothing in the Speech or Debate Clause which protects either an aide or a third person from prosecution for any crime he may have committed.

William O. Douglas:

I have just re-read Dombrowski and there is not a word in there Mr. Solicitor General that indicates that Sourwine could be put on the stand and questioned respecting Senator Eastland’s motives and purposes or implications or complications of project?

Erwin N. Griswold:

That he could be?

William O. Douglas:

There is not a word that can be —

Erwin N. Griswold:

No I suggest — no I don’t say there is —

William O. Douglas:

This was a shell of a case and we sent it back to the trial?

Erwin N. Griswold:

The decision however is that Mr. Dombrowski can be sued.

I agree there is no decision there as to the extent to which he can be questioned but —

William O. Douglas:

I think this is a first time when we had that?

Erwin N. Griswold:

As far as I know this is the first time that you actually had that question.

As I was saying, we think that there is nothing in the Speech or Debate Clause which protects either an aide or an third person from prosecution for any crime he may have committed.

As I have already said an aide or a third person is entitled to the privilege against self incrimination, but such a person, a non member is not entitled to any privilege under the Speech or Debate Clause.

Potter Stewart:

Tenney against Brandhove was a state case, wasn’t it?

It came from State Legislation?

Erwin N. Griswold:

Tenney against Brandhove involved a committee of the California Legislation.

Potter Stewart:

Therefore was not covered by the Speech and Debate Clause of the Constitution.

What do you suppose the constitutional basis to that decision was?

Erwin N. Griswold:

I don’t know that it is a constitutional basis Mr. Justice.

Erwin N. Griswold:

I think that analytically it is a construction of the Civil Rights Act of 1871, under which the suit was brought and it was held that the held Civil Rights Act should not be construed to provide for a liability of a member of a State Legislature.

Now, I have no doubt that in the background to that question of construction were some constitutional considerations, derived out of no particular clause of any Constitution but derived it seems to me I can say out of constitutional history.

The State Legislatures just like Congress are the lineal decedents of the British Parliament.

There were Centuries of controversy and the struggle between Parliament and the Crown with respect to the privileges of the two Houses.

At various times, particularly the 18th Century, the privileges got really out of hand.

The history shows that members sold the right to be a servant of a member in order that the servant would not be subject to suit in civil cases.

That was abolishment to before 1789.

That history I think is part of the reason why the privilege was limited to Senators and Representatives, but in the — Tenney case the decision was, that they could not be subjected to civil liability and let me point out again that this is a suit against amendments, not against anybody else.

Potter Stewart:

It was not — let me point out again but may that it could not have been under the Speech and Debate Clause?

Erwin N. Griswold:

It was plainly not under the Speech and Debate Clause.

I recognize that, nor does it purport to be an interpretation of the California Constitution.

Potter Stewart:

No, no (Inaudible) of this Court’s business?

Erwin N. Griswold:

And I think you will find and I read it as carefully as I could with just this in mind I think you will find that it really boils down to being a construction in the broad sense not of any particular language, a construction of the Civil Rights Act, on which the suit was based and to hold that Congress in passing that Statute could not have intended that it provide for suits against members of State Legislatures for doing what they regarded as their Legislative duty.

William J. Brennan, Jr.:

Mr. Solicitor General —

Thurgood Marshall:

What do you say about Senator Ervin’s point that when that Section, Article 1, Section 6 was adopted, Senators and Congressmen didn’t have any stenos evidently?

Erwin N. Griswold:

I am on the first place Mr. Justice I doubt if it corresponds with the facts.

I expect that many members of Congress had I recall John Quincy Adams went to Russia with his Father John Adams.

Thurgood Marshall:

Well, may be I wasn’t fair the staff were not as elaborately —

Erwin N. Griswold:

The staff were not as elaborate as they are now and I don’t think that —

Thurgood Marshall:

As I understood is argument, you couldn’t argue that they were deliberately excluded?

Erwin N. Griswold:

Mr. Justice I think you can, because of this history about the extension of the privilege far beyond members in Parliament which came to be recognize as a great abuse and was completely eliminated by Parliament and then the Colonies, shorty before 1789 and I doubt very much that the distinguished gentlemen of the first Congress operated entirely on their own.

It’s perfectly plain they didn’t have as many constituents as present members have, they didn’t have electronic and other aids available.

They didn’t have a volume material pouring in on them with which they had to deal.

William J. Brennan, Jr.:

Mr. Solicitor General, I gather it’s not doubted that the purpose of the Speech or Debate Clause was not protect Senators or Congressmen, that its purpose was to assure the people of the independence and integrity of their Legislators, wasn’t it?

Erwin N. Griswold:

Well, I think primarily Mr. Justice nevertheless the history —

William J. Brennan, Jr.:

Well I know, but that’s the purpose, wasn’t it?

Erwin N. Griswold:

No, the history of the Speech and Debate Clause is to protect the members not entirely but it large they were the members who were being arrested and put in the tower and Senator Ervin talked about Congressman, the Senators being intimidated.

Now perhaps one reason you want to protect Congressman and Senators from being intimidated —

William J. Brennan, Jr.:

Well, may I put it this way, certainly our cases, our opinions in this area have said, have they not, most recently Johnson, that the purpose of the Clause was not protection of the Congressman or Senators, but was as I have indicated to guarantee the people the independence and integrity of their legislator?

Erwin N. Griswold:

Yes Mr. Justice.

William J. Brennan, Jr.:

That’s what we have said.

Now accepting that for a moment, in the present context of the operation of the Congress, it’s impossible I gather even the Executive branch would agree I am sure, to carry on its function without the assistance of aides, isn’t it?

Can you imagine a Senator today by himself performing?

Erwin N. Griswold:

No Mr. Justice, but I don’t think that it follows that the —

William J. Brennan, Jr.:

Well, know what I want — what I am trying to get to if you accept the premise of the purpose of the Clause as I have stated it, then if the aides don’t have the benefit of it as I think was argued yesterday, the Clause becomes —

Erwin N. Griswold:

If you are guided only by that purpose, you would of course give a very squeaking application, I can’t say construction, a very squeaking application of the Speech or Debate Clause, you would ignore in either House, you would ignore the Senators or Representatives, I don’t know what else that you would ignore, but I find no basis for that.

I think the public can be —

William J. Brennan, Jr.:

Well I suggest that to the extent that we have put that emphasis on the purpose of the Clause to use your word, it has already been ignored.

Erwin N. Griswold:

I think that the purpose can be adequately maintained by guiding absolutely against the Senator or representative being questioned in any other place with respect to any speech or debate.

And I know of nothing in our history to indicate that Congressman and Senators have not been fearless or that they have been restrained in their action because they think that the Executive branch and the Judicial branch —

William J. Brennan, Jr.:

Well I accept the real hazard is that their independence and integrity or at least their independence, if you are right and that aides are not also protected, his close aides, the hazard is that the pressures of the Executive Department can deny the people the independence or offers a hazard of denying the independence which was the purpose of the protection?

Erwin N. Griswold:

Well Mr. Justice I think that is putting it in an unreal and if I may say so in inappropriate way.

I don’t know how many aides there are of Congressman and Senators.

There are 535 Congressman and Senators.

If they average 20 each which is probably low, that would be ten thousand people who would be entitled to all of these immunities.

I suspect that it’s more than — I suspect that is closer to twenty or thirty thousand people when you include secretaries and other persons.

I find it very difficult to think that either the founders intended or that it can fairly be found within that quite precise language of the Speech or Debate Clause that there was to be a large mass of people not merely in the capital, but all over the country because many of these aides are back in the Home Districts who are protected against being questioned in any place.

The way it is asserted that Dr. Rodberg and these outsiders should be protected here.

As I have said no case, and I repeat, no case has ever given such a privilege to an aide.

Moreover the privilege applies only to speech or debate in either House and many of the questions which might be asked here relate to matters far outside of either House.

Senator Ervin referred yesterday to the Massachusetts, the early Massachusetts case of Coffin against Coffin.

It is rather fun to read that case as you might guess from the name it arouse out of Nantucket.

There is nothing to indicate whether the two parties were brothers or otherwise related, they may not have been.

It involved action on the floor of the House of Representatives in Massachusetts, in Boston where there had been a hope with respect to establishing a new office of notary public in Nantucket and question was raised as to who would be named for the office.

The House voted to establish the new office which was undoubtedly a legislative business and then it developed that while other legislative matter was going on and still on the floor of the House, but had an area aside over beside the Speaker’s bench, the one Representative came to Mr. Coffin and said, that they were going to name another Mr. Coffin and this Mr. Coffin said, what that criminal?

And don’t you know that he was involved in that bank robbery down there.

Now it is perfectly true that Coffin against Coffin is regarded and rightly regarded as one of the leading cases in this area.

Again it is written by theosophical persons, the then Chief Justice, all the other judges were well known Massachusetts figures.

There is a long discussion of speech or debate, but the result of the case is that Mr. Coffin was held liable for a judgment of the $2500 which in 1804 was no inconsiderable amount.

Because the Court held that this matter happening on the floor of the House but to decide and after the vote had actually been taken did not relate to a speech or debate in either House.

Erwin N. Griswold:

The case is of course of great historical significance, but its decision I think is on the side which we advance here.

Warren E. Burger:

Mr. Solicitor General, do you think Congress could enact a statue giving some kind of limited privilege to its own staff members without running afoul to any Constitution?

Erwin N. Griswold:

Well, Mr. Chief Justice that’s a nice question.

I am just running through my mind the arguments on both side.

Perhaps some day this Court will have to answer it.

I don’t myself feel qualified at this time to answer it.

Certainly, the Congress should have great power to legislate with respect to its own activities, not merely power to protect, but I think also power to put out, that is power to say the contempts of Congress shall be tried in the Courts as has been the practice for a long time.

I think without meaning to argue another case that Congress can provide that crimes committed by Congressman can be tried in the courts.

So, I think that quite an argument can be made that not because of any express power, but something arising out of what Chief Justice Marshall said it is a constitution we are expounding.

That if Congress did that in sufficiently limited terms it probably would be done.

William J. Brennan, Jr.:

Well I thought you suggest —

Erwin N. Griswold:

But, it is not here.

William J. Brennan, Jr.:

You suggested earlier, didn’t you Mr. Solicitor General that there was some kind of common law privilege, very-very narrow one and that you sought even the aides might today.

Erwin N. Griswold:

Yes and I think Congressman.

William J. Brennan, Jr.:

Well I suppose if there is then the Congress —

Erwin N. Griswold:

Congress might spell that out in more detail.

Potter Stewart:

But, certainly Congress has power to enact evidentiary rules and laws for the Federal Court to establish privileges or to abolish common law privileges —

Erwin N. Griswold:

Yes.

Potter Stewart:

— as long as they are not constitutionally based.

Erwin N. Griswold:

Yes.

Potter Stewart:

No question about that —

Warren E. Burger:

State legislative had granted such immunities to doctors and lawyers and ministers?

Erwin N. Griswold:

Yes, and I suspect that Congress at least in the federal courts, I don’t know whether Congress could enact it with respect to evidence in the state courts.

Now there is one final point here to which very little reference has been made.

We have not only aides but we have third parties.

Here Representatives of the M. I. T. Press and the Beacon Press, and I would say that a fortiori they have no privilege not to testify.

It maybe that their testimony cannot be used against the Senator but it can be used against them and it can be use against other non-members.

Only a Senator or a Representative is protected by the Speech or Debate Clause.

And in particular, the Speech or Debate Clause has nothing to do with republication.

In the first place, I don’t want to concede that we are really dealing with republication here because as I understand the situation that most of the 47 volumes of the Pentagon papers were not read by Senator Gravel, after all it’s seven million words.

Erwin N. Griswold:

He read some of them and he then introduced the others into the record.

They were never published as a part of the record.

Indeed, what’s involved here is Senator Gravel’s effort to get them published and they were published by the Beacon Press.

What I suggest to you that that may well not be a republication, but maybe not protected as the republication of material which has been published as a part of a congressional activity.

In an event, the Speech or Debate Clause —

Potter Stewart:

Your suggestion is that it’s an original publication?

Erwin N. Griswold:

A private publication by Senator Gravel which is not a publication of the congressional materials.

Here the chairman of the committee refused to authorize the expenditure, the funds for the reporter and they have not been published by the Congress and Senator Gravel has caused them to be published elsewhere which I suggest is not privilege under any conception of the Speech or Debate Clause.

Potter Stewart:

How much, if any, was in the congressional record?

Erwin N. Griswold:

I don’t know how much was in the — as far as I know none is in the congressional record.

William J. Brennan, Jr.:

How much of the exhibits published?

Erwin N. Griswold:

How much of —

William J. Brennan, Jr.:

How much has been published?

Erwin N. Griswold:

All of those four volumes I believe, as far as, I know the four volumes have never been published.

William J. Brennan, Jr.:

That is the 40 what the 40 odd —

Erwin N. Griswold:

There were 47 volumes.

William J. Brennan, Jr.:

And 43 have actually —

Erwin N. Griswold:

And I understand that 43 of them published, most of the 43 of them published by defense department.

And let me finally close by saying that there is no First Amendment question, here.

No one is trying to stop publication, it’s been done, the material has been published.

William O. Douglas:

So punishing publication might be a serious as kind of estoppal?

Erwin N. Griswold:

There were prior efforts to try to stop it but as far as Beacon Press is concerned, it has published it and the majority of the Court in the New York times case, made it quite plain though there could be publication, the consequences of that publication remain for consideration, and they might be criminal and they might be —

William O. Douglas:

That was left open, wasn’t it?

Erwin N. Griswold:

That was, that was left open and that Mr. Justice, is what we are trying to explore here to see whether there was any crime committed in connection with the publication of these materials, and we are trying to obtain evidence on that subject and I repeat, I do not see that the First Amendment is involve in anyway because the material has been published, the speech has been made, the presses have rolled, the situation now is what are the consequences of that and we believe that we are entitled with the evidence of these persons who have been subpoenaed in this case.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Fishman.

Charles L. Fishman:

Mr. Chief Justice, and may it please the Court.

If I may, I would like to go right to the heart of the claim of the Solicitor General.

As I understand that is that the assertion of a possible illegal act raised to the Justice department, the power to imply into a legislative proceeding, that as I understand that it is our view.

Effects of that —

Warren E. Burger:

Would you define what legislative proceeding you are referring to when you use the term now?

Charles L. Fishman:

It doesn’t seem to make a difference whether it’s a committee hearing, a debate on the floor, or an attempt by a member to inform its constituents.

He made no distinctions as I understand it, but specifically here we are talking about a committee meeting and a publication of the committee transcript.

Warren E. Burger:

By whom?

Charles L. Fishman:

By Senator Gravel, and but I am leaving this —

Warren E. Burger:

So the official channels of Congress or elsewhere.

I understood the statement was made that the committee, the Congress of the United States, the Senate in particular refused the funds for publication —

Charles L. Fishman:

That’s not true, Your Honor.

That is not true.

I invite Your Honor to the record where in the District Court that assertion was made on the basis of a newspaper article.

District Judge Garrity denied the use of that article for the purpose which the government tried to use it.

The only purpose was an assertion in that article, that Senator Randolph was upset with Senator Gravel and refused to pay for transcript.

Warren E. Burger:

Well, it must be well known whether or not the committee has actually published one of the usual reports, embracing all this material?

Charles L. Fishman:

Well, two things sir.

In the discussion on the floor of the Senate with respect to that matter, Senator Randolph and Senator Dole both conceded that, that was not a problem in the subcommittee, and indeed as Your Honor knows, most committee reports are not printed in the United States covers.

It’s the rare report that actually ends up being printed.

The appropriations committee meetings almost never, never published ultimately by the GPO.

So really what we have here is nothing different in which you have normally and customarily before either House of the Congress, which is a committee transcript was compiled.

It was not printed officially in the sense of the government printing office printing it, but it was printed rather by Beacon Press.

Now as we have shown in our brief, a three-page footnote, that kind of publication is normally and customarily done with respect to committee reports of the United States Congress.

Potter Stewart:

Comittee reports are transcript of the committee hearings?

Charles L. Fishman:

Yes, sir, both are involved there as —

Potter Stewart:

Which footnote, what page you are on, can you tell me?

Charles L. Fishman:

You just give me one moment, Your Honor.

Potter Stewart:

Sure, (Inaudible) let your colleague —

Charles L. Fishman:

Fine.

But it’s a rather extensive footnote and I might add that we were limited of the time in which we had to do it.

That was what we got out of the library of Congress called a catalog.

There were we found out, after the brief had to be submitted, it’s footnote 119 which states on page 86.

It also covers page 86, that goes on and on.

Charles L. Fishman:

I might add that since then Mr. Chief Justice, we have discovered that every available congressional report is on microfilm in a variety of both private and public sources.

And anyone who wishes, can purchase any single report or an entire proceedings of every single Congress from the first Congress through the last Congress, either partly or to some extent through the library of Congress.

So it seems really clear from the history of what has happened in this nation that the fact that Senator Gravel went to Beacon Press as opposed to government printing office makes their difference.

Indeed the Solicitor General does not argue than it does, either in its brief or here today.

His position I assume is that had Senator Gravel gone to GPO and his subcommittee chairman said please publish this report and the GPO did publish the report, that nonetheless the grand jury could still conduct the same inquiry.

Warren E. Burger:

But as I understand the inquiry that the Solicitor General said the government wants to make is to determine whether any crime was committed in the acquisition of those documents?

Charles L. Fishman:

Well, again Your Honor, the District Court made a finding of fact.

That finding was that the purpose of the subpoena to Dr. Rodberg was to question Dr. Rodberg with respect to preparation in the conduct of the subcommittee meeting.

That finding of fact was not appealed Your Honor and is not before this Court.

In the District Court, when the question came up with respect to the subpoena of Mr. Webber, which is the other party that was actually — the subpoena is before this Court.

At Page 128 of the Appendix, the government asserted that the primary purpose for calling Mr. Webber was, if may quote, “I must in fairness conceive that other areas of interest to us are ancillary so to speak or originated from the contact made by the Senator’s representatives.”

The basic purpose that they wished to question Dr. Webber as they stated in the District Court was about the conversations that Dr. Webber had with Senator Gravel and with his aides with respect to the publication of the subcommittee transcript.

It was not with respect to acquisitions.

Those were the findings of the District Court.

So I don’t think that the government at this late date can come to this Court and say really we are only interested in the original theft of the documents.

That question has been now been foreclosed.But even if it were —

Warren E. Burger:

Mr. Fishman, for your accommodation, to just your argument, we will enlarge your time three minutes so that you can —

Charles L. Fishman:

Thank you, sir.

I appreciate that.

Warren E. Burger:

— plan it accordingly.

Charles L. Fishman:

I appreciate that.

But even if it were, Your honor, we have never claimed that the privilege applies to anything other than legislative acts, never.

Senator Gravel is subject to subpoena, as is Dr. Rodberg, as is Dr. Webber, as anyone else, with respect to non-legislative acts.

The stealing of the papers we say is a non-legislative act and we have no objection, the Senator has no objection, to appearing before that grand jury and testifying with respect to his knowledge which he has none incidentally, about the stealing of those papers.

What we maintain and we have maintained throughout this entire proceeding, what the basis of the dispute has been, is to the extent to which the executive may come to this Court and seek its subpoena and contempt powers to inquire into legislative acts, and there as Mr. Justice Rehnquist suggested, we have asserted a testimonial privilege to prohibit inquiry of legislative acts, but only legislative acts.

All of the examples of the Solicitor General did not involve legislative acts, certainly kidnapping is not a legislative act and we would have no objection to inquiry involving non-legislative acts.

William J. Brennan, Jr.:

Well I gather Mr. Fishman the limitation against inquiring the motives and purposes, you feel — was that —

Charles L. Fishman:

That’s where receipt would be prohibited Your Honor, inquiring to receipt would be prohibited.

William J. Brennan, Jr.:

And that for — you want a broader protection than that, don’t you?

Charles L. Fishman:

I’m not sure if I follow —

William J. Brennan, Jr.:

Well, the facts — didn’t take Court of Appeals in the protective order, limit inquiry of Dr. Rodberg or the the other witnesses, and to anything that is more on motives or purposes?

Charles L. Fishman:

That’s right, but there was beyond that.

They limited the questioning of Dr. Rodberg beyond that Your Honor.

What they failed to do was to extend the prohibition against inquiry to those who assisted Senator Gravel.

William J. Brennan, Jr.:

Are you satisfied with the limitations?

Charles L. Fishman:

No Your Honor.

William J. Brennan, Jr.:

(Inaudible) what I am thinking?

Charles L. Fishman:

No, Your Honor.

I think it’s sort of false sir, because no one can understand it, that’s what the basic part of it is.

William J. Brennan, Jr.:

You mean, you don’t understand what the motives and purposes are?

Are there other things you don’t understand about it?

Charles L. Fishman:

Well, that’s one of the problems certainly.

I would like to, in that vein go to another problem that keeps on popping up if I may which is we have never asserted an immunity from accountability although the Solicitor General keeps on bringing us back to that.

I can’t emphasize enough that our position is that if a crime has been committed, those who committed them are accountable.

It’s merely a question of where the accountability occurs.

Byron R. White:

How about a court?

Charles L. Fishman:

In court?

If Dr. Rodberg, and I am using as an example, committed a crime and it was a non-legislative act, there would be no problem.

He could be tried and convicted in de novo process.

If there was some question —

Byron R. White:

What if in preparation for a senatorial speech or a committee hearing, he committed the crime.

Charles L. Fishman:

Well, than this Court would have to decide whether or not to follow the —

Byron R. White:

What’s your position?

Charles L. Fishman:

Well, it’s really a case of the alternate first impression in this line I suppose.

We have (Inaudible) Your Honor and it’s our position as we came to it that this Court should follow the English line of West and Walter and hold that those who assist, whose assistance is absolutely necessary could not be held accountable but of course this Court could hold it the other way.

Byron R. White:

What’s necessary in preparation for legislative act, I mean is criminal activity necessarily to prepare for a legislative act?

Charles L. Fishman:

Well, it’s that part of the problem of the cases Your Honor that they arose based on the libel and slander cases which are criminal in England, and it’s a lot easy to say that that’s protected, then it would be, say stealing.

Certainly, stealing, the answer is no.

William H. Rehnquist:

Under your theory, would the question necessity be finally determined by the Senator himself or would that be subject to any sort of judicial review?

Charles L. Fishman:

No, I think that this Court ultimately has to determine the scope of Clause.

Charles L. Fishman:

We have never maintained that Senator Gravel himself can determine the scope of the Clause.

This Court has to determine the —

William H. Rehnquist:

Is this a necessity of a particular act or the performance of a legislative function, is that something that the Senator is the final to determine on the Clause?

Charles L. Fishman:

Well, I think comity requires that this Court give a good deal of consideration to the position of a member or indeed the body in that situation, but ultimately I think this Court has the responsibility of drawing the line.

Ultimately, it must fall to this Court.

Warren E. Burger:

Let me be sure, I got your one statement unclear Mr. Fishman.

Well, I understand you to say that a grand jury could call an assistant through a senator and ask where he got a particular documents as a foundation to determining whether they were stolen.

Charles L. Fishman:

No, Your Honor.

I said the acquisition, as we have to draw the line simply because when you are going to acquisition, you have to go into things like his intent.

Warren E. Burger:

Well, if the fact is that they were acquired by breaking into a building at midnight and stolen out off a shelf which was blown up, you mean they can’t inquire to them?

Charles L. Fishman:

No, they certainly can, Your Honor.

I may have misunderstood you, Your Honor.

What I was suggesting was that at the point when the material reaches the legislative body, acquisition for the legislative body, once it brings it to its (Inaudible), the inquiry must stop, but anything that occurred prior to that time, certainly, the grand jury may inquiry into.

Warren E. Burger:

The first step in that inquiry might be to ask someone who has possession, where did you get them and then go to that source and to the one before, tracking it down to the person who actually broke down the door and blew up the safe?

Charles L. Fishman:

So as long as that is not of the Senator or of the aide or of anyone who assisted him in the legislative process, I see no problem with that.

Thurgood Marshall:

Take this case.

Charles L. Fishman:

If i may Your Honor.

Excuse me.

Thurgood Marshall:

Senator Jones, gets up on the floor and reads a top secret document from an executive office, and when the executive office checks on it, they find the safe is broken into.

Now how do they go back to finding out how the Senator got that document?

Charles L. Fishman:

They could inquire.

Thurgood Marshall:

Of whom I am not talking what I am talking about about who?

Charles L. Fishman:

They can inquire, I suppose, of anyone and any who was involved at any point, up to the point were that material was received by the Senator or his aide.

Thurgood Marshall:

Well, wait, whom would you question?

Charles L. Fishman:

Well, it depends on its fact situation.

I mean there are situation, I suppose, which one person just tucked it under his arm and walked away.

Thurgood Marshall:

I mean, under normal circumstances you have asked the man who had it, how did he get it, wouldn’t you?

Charles L. Fishman:

Certainly.

Thurgood Marshall:

So you can’t ask the Senator how he got it?

Charles L. Fishman:

That’s correct.

Thurgood Marshall:

So where next do you ask?

Charles L. Fishman:

I don’t believe you could ask the aide where he got it either.

Thurgood Marshall:

So that’s a crime that can’t —

Charles L. Fishman:

No, that situation arose in 1938 in England, as Your Honor may know in Sandys case, in which a member of the British parliament received battle of the order plans.

We are not talking about historical too but battle of order plans, the defense of Britain, the defense of the air, in the aircraft defense and the English Parliament held that Mr. Sands (ph) was not inquirable in any other place other than the House of Parliament.

Potter Stewart:

But that’s the British parliament, the parliamentary premises and here we have over here, we have Constitution of the United States.

Charles L. Fishman:

To the some extent, that makes our argument stronger, I believe.

Potter Stewart:

To some aspects, but I don’t think it makes that case, binding on us either?

I had — in reading your brief, a long brief — when I came to footnote on Page 124, I thought that I had finally got your submission as to the scope of what you are asking which is just this.

Senator Gravel does not seek to protect any aspect of or actor in the Pentagon Papers Case, other than his acquisition, not his source’s acquisition of them.

His staff’s preparation of the papers for the subcommittee hearing and Beacon Press’ preparation of the papers for publication and it’s all about publication and distribution of them.

I thought finally, I’ve got into encapsulated summary of what this brief is all about?

Charles L. Fishman:

I am sorry it took so long to get there, Your Honor.

Warren E. Burger:

Am I wrong, if there was three pages from the end of the brief, it’s in the footnote.

Would that be about it in answer to this colloquy that you have had this morning?

Charles L. Fishman:

Yes, and without question that is our position.

We don’t think we have to go beyond it, and we don’t wish to go on it.

Byron R. White:

Well, you can say to the (Inaudible) say prior to the acquisition (Inaudible) did you have any conversations with anybody about it?

Charles L. Fishman:

Prior to what, sir?

Byron R. White:

Prior to the acquisition of these papers, at any period of time prior to the acquisition by the Senator’s office of these papers, did you have anything do with the papers or did you have any —

Charles L. Fishman:

Independently of the Senator’s office, the answer would be yes.

Byron R. White:

Yes and it said then a theft on March 1, you could say where were you on March 1?

Do you know who stole the papers?

Charles L. Fishman:

I think that would be perfectly inquirable.

We have no objection to Dr. Rodberg asking that question, there would be no privilege asserted there.

Byron R. White:

And did you know prior to the acquisition that you are going to acquire it?

Charles L. Fishman:

Well, did you know prior to the actual acquisition, that the Senator was going to acquire them, I suspect that would be barred.

That’s where you touched on the legislative process, that’s where you crossed that very difficult line, and you started into a sphere of legislative activity.

Warren E. Burger:

Your time is up now, Mr. Fishman, thank you gentlemen.

The case is submitted.