Gravel v. United States

RESPONDENT:United States
LOCATION: Senator Gavel’s Office

DOCKET NO.: 71-1017
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 408 US 606 (1972)
ARGUED: Apr 19, 1972 / Apr 20, 1972
DECIDED: Jun 29, 1972

Charles L. Fishman – Argued the cause for Gravel
Erwin N. Griswold – Argued the cause for the United States
Robert J. Reinstein – Argued the cause for Gravel
Sam J. Ervin, Jr. – Argued the cause for the Senate of the United States as amicus curiae
William B. Saxbe – Argued the cause for the Senate of the United States as amicus curiae

Facts of the case

In 1971, Senator Mike Gravel received a copy of the Pentagon Papers: a set of classified documents concerning U.S. involvement in the Vietnam war. Gravel then introduced the study, in its entirety, into the record of a Senate Subcommittee meeting. Gravel also arranged for the private publication of the papers by the Beacon Press. A federal grand jury subpoenaed Leonard Rodberg, one of Gravel’s aides, to testify about his role in the acquisition and publication of the papers.


Did the subpoena of Senator Gravel’s aide violate the Speech and Debate Clause of Article I of the Constitution?

Warren E. Burger:

We’ll hear arguments next in number 71-1017 and 71-1026, Gravel against the United States and United States against Gravel, consolidated.

Sam J. Ervin, Jr.:

Mr. Chief Justice —

Warren E. Burger:

Just let the crowd to clear a little bit.

We have got all the power lawyers in Wahsington based Senator.

Senator Ervin.

Sam J. Ervin, Jr.:

Mr. Chief Justice and may it please the Court.

The facts out of which this case arouse are extremely simple.

Senator Gravel is a long time critique of American involvement in Southeast Asia.

On June 29, 1971, he convened the meeting of the sub-committee of the Senate of which he is chairman.

After convening the meeting, he made a speech in the meeting in which he quoted extracts from the so called Pentagon Papers.

After so doing he inserted the Pentagon Papers in their entirety in the record of the committee’s hearing.

He had — was assisted in preparing for this meeting and for these activities by his aide, Dr. Rodberg.

Subsequent to the presentation of the Pentagon Papers to the committee, Senator Gravel, acting through Dr. Rodberg, undertook to find a publisher for all these papers to give then wider dissemination and —

Harry A. Blackmun:

Could I ask you, tell me a little bit about Dr. Rodberg.

Was he hired that very day by the Senator?

Sam J. Ervin, Jr.:

Yes sir he was hired that very day by the Senator, but the lower courts have found that he was an aide to the Senator and that question is not in controversy.

Harry A. Blackmun:

Was he on government payroll or not?

Sam J. Ervin, Jr.:

I believe there is some evidence in the record that he was employed.

His name was entered on the record of the department, but it was not entered on the records of the financial clerk.

There is however an old controversy about his being an aide to the Senator — to Senator Gravel.

Warren E. Burger:

Was this circumstance arising simply out of the fact that it — this was a very hasty development?

Sam J. Ervin, Jr.:

Yes, it seems to been done rather on the spur of the moment.

As a result of the fact that then some cont — some recent Pentagon Papers have some controversy in other areas about publication — about papers of the Pentagon Papers.

Now in this effort to find a publisher, Dr. Rodberg consulted with the witness Webber, it was mentioned in the record and also upon — on behalf of Senator Gravel an agreement with the Beacon Press of Boston to publish the Pentagon Papers which had been inserted in the committee records, in a book.

The government issued what I call a John Doe grand jury investigation in the district of Massachusetts.

For the avowed purpose, having the grand jury investigate whether someone had violated the criminal statutes which put — make on certain divisions to the crime, or want to retain any government records with intent to convert them to his own views.

Our statute which makes it a crime to gather and disseminate national defense information on under circumstances and the statute which makes it a crime to conceal or remove government records and also tell whether a conspiracy had been formed to violate any of these statutes.

There was subpoena issued for Dr. Rodberg at the instance to the government.

There was a subpoena issued for Webber.

A witness who had the — had some contacts with an unsuccessful effort of Dr. Rodberg to procure the publication for Senator Gravel and the book and then there were two subpoena duces tecums issued to the Beacon Press to require it to produce before the grand jury any documents which Senator Gravel or Rodberg had given them.

Sam J. Ervin, Jr.:

Now, the controversies, three — there is a controversy here between the government on the one hand and Senator Gravel on the other.

Senator Sachs (ph), and I do not hold a brief of Senator Gravel.

We appear hear solely in behalf of the United States Senate.

United States Senate takes this position that a Speech or Debate Clause of Section 6 of Article I of the Constitution says in affect to the other branches of the government, the executive branch and the judicial branch, you must keep off this legislative rights.

I use this expression because I was impressed by the greenest of the grass as I came over to the Court this afternoon.

The Senate does not take the position that it — holds no brief for Senator Gravel.

It merely holds — takes the position that every thing that Senator Gravel did, at least short of the publication, was acted within the general domain of the legislative branch of the government and that the Senator Gravel is not accountable to the executive branch and that he’s not accountable to the legislate — to the judicial branch of the government for any of his legislative activities.

William J. Brennan, Jr.:

Senator you said short of publication, is that saying —

Sam J. Ervin, Jr.:

I said – I’m going to come to that separately.

I don’t think — I think I’ll deal first with the action in the committee and then deal with that as a separate matter.

Warren E. Burger:

While we have you stopped Senator, with the immunity that you have just suggested to be broad enough so that no inquiry could be made judicially or otherwise into whether meeting was a valid meeting under the Senate rules?

Sam J. Ervin, Jr.:

The court implied to held that in the case of Tenney against Brandhove where the court quoted at length and with complete approval the decision of the Supreme Judicial Court of Massachusetts in the case of Coffin against Coffin which was handed down many, many — right after 1800 and they held that it was immaterial.

If the man was acting within what was traditionally the legislative activity, it made no difference whether these activities were regular or irregular under the rules of the legislative body of which he was a member.

Warren E. Burger:

In other words, that would be the business only of the Senate?

Sam J. Ervin, Jr.:

Oh, certainly, that is our position.

In other words, that this is something that is beyond as far as anything that transpired within the scope of the Speech or Debate Clause of the Constitution.

It’s something of which the executive branch, or the legislative — judicial branch having a constitutional power whatsoever —

William J. Brennan, Jr.:

And that inquiry or discipline or both is something exclusively for the Senate?

Sam J. Ervin, Jr.:

That’s right.

In other words, the Section 5 of Article I, the preceding Section to the Speech and Debate Clause expressly says that each House shall determine the rules of its proceedings, may punish members of disorderly behavior and with the concurrence of two-thirds expel a member.

And our position is that whether even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that that is a matter for the judgment of the Senate and no other power in our government has right to make any official pronouncement on that subject.

William J. Brennan, Jr.:

Senator the Congress, both Houses of the Congress enact legislation, which authorizes the judicial branch to make an inquiry, is that statute constitutional?

Would that statute be constitutional?

Sam J. Ervin, Jr.:

If we authorize an investigation?

William J. Brennan, Jr.:


Sam J. Ervin, Jr.:

I doubt it very seriously.

I doubt whether the Congress can confer upon the judicial branch of the government with example — I don’t think it fall upon executive branch the power to prosecute a Senator, a Representative or upon the judicial branches the power to the judge —

William J. Brennan, Jr.:

Or an aide?

Sam J. Ervin, Jr.:

In its function of the government.

In other words I think it’s totally, as the Germans would say it’s about both so far as in a branch of the government in the House of which the party is a member.

Warren E. Burger:

Senator I am not sure it’s relevant here but you may shed some light on it for me.

Suppose in — a session of the Congress was held here, extraordinary kind of meeting, a libel was committed on an individual.

Could that individual in a suit for libel or slander, should it be that broad, could he question the validity on —

Sam J. Ervin, Jr.:

Not if it happens within the domain of the executive branch of the government.

That’s been settled, that’s settled in —

Warren E. Burger:

Well then that would be the question in the case whether it was within the legislative function?

Sam J. Ervin, Jr.:

But the decisions are to the effect and I don’t think there is any great controversy between (Inaudible) on this point.

The decisions are to the effect that anything that happens within the area which is alloted to the legislative branch of the government and which is traditionally done in that branch is subject — it could be subject to liability.

Now there is a distinction made between the immunity of the legislator and the immunity of his aide.

The legislator is absolutely immune even when he engages in a the non constitutional acts, such as for example, they have spoken for the non-constitutional resolution of bill, he is absolutely immune, he cannot be summoned to court.

The aide however, can be asked for to talk – an action for tort if — unless two things concur.

The aide must be acting within the scope of his employment by the legislator and the activity of the aide must occur within the general domain of the legislative branches of the government.

If those two things are concur, the immunity to the aide is exactly like the immunity of the legislature, and it is held by the court below, I think quite wiseman has held in other cases that that is so (Inaudible).

The government takes a very peculiar position in this case, it takes a position at the Speech and the Debate Clause, protects a legislator only in three respects.

First, it protects him against criminal prosecution for what transpires within the scope of his legislative action.

Second, that it exempts him from the civil liability and third that it exempts him from being the person to be dragged before a Grand Jury by subpoena and in the person interrogated by the Grand Jury, that’s the position of the Solicitor General and he takes a very strict construction of — he should place that on the fact that the clause says for any speech or debate in either House, they, that is legislators shall not be questioned in any other place.

He says that, the only people mentioned as the legislators. Now that reminds me the argument that was made in the Court in Venice when Shylock demanded his pound of flesh.

He said that its nominated in the bond, I am to get my pound of flesh.

Well my reply to the argument of Solicitor General is that same as posture made.

It’s also impliedly nominated in the bond that all you get as your pound of flesh, you don’t get a drop of blood, and this — this bond in this case could not possibly to be subjected to the interpretation that the government places upon it without taking the life of blood of the Constitution because this clause was imposed in — it was placed in the Constitution for a two-fold purpose.

The first purpose was wrath on that experience in the England and there in England, the Quito and the Stuart kings have the members of the parliament held in the court, prosecuted, convicted and sentenced to jail falsely, making speeches on the floor, making speeches in parliament which was displeasing to the crown and so in the Bill of Rights of 1688, the provision was incorporated that members of the parliament should not be called upon to answer in any court or in any other places except for parliament for their activities as members of the parliament.

And so that was brought in down prosecution for that reason and as so well stated by Justice Harlan in the Johnson case for an additional reason.

He quotes in his very fine opinion in that case, a statement of Madison and Federalist Papers on the separation of the powers of the government.

And after pointing out how the powers of the government are separated by a written Constitution in this country, Madison says that the next important thing is to have some practical methods by which to enforce the doctrine of the separation of the powers and prevent one branch of the government from trespassing upon the domain of the other.

And in the Johnson case, it is said that the Speech and Debate Clause was one of the practical obstacles created by the Constitution to forbid the trespass by the other branches of the government upon the domain reserved by the Constitution to the legislative branch.

Now manifestly, if you take the interpretation this Court would place upon this false of the Constitution, the interpretation for which the government contends, it would make the clause virtually worthless because it would allow even aides of these Senator, or third parties to testify the Senator’s conduct within the scope of his legislative activities.

Now the purpose of this clause as the Court held in the Johnson case is to keep legislators from being a accountable to the other two branches of the government and to keep them from being intimated by the other two branches of the government.

The Solicitor General suggests that or having the — the Senators conduct testified to by his aides or by third persons has no more deterrent effect on his legislative action.

Then having him the subject to the criticism of his constituents.

Well I submit that that it’s not a valid, that shows it’s not in accord with the facts of legislative life.

Sam J. Ervin, Jr.:

I have spent about six years serving in the legislature of North Carolina and altogether I have served almost 19 years in the Congress in one House or the other and I have to testify this Court that among the most timid creatures I have ever met are legislators and they can cope with an isolated criticism of their constituents who have right under the Constitution incidentally to criticize them and they can cope with the criticism of the press which has right criticize their conduct.

But I don’t know anything that would come nearer scare the poor Senator or poor Representative to the death than to have either the executive branch of the government with all the might, governmental might which the executive branch possesses, or the judicial branch of the government with all of the respect which the judicial branch enjoys as an impartial body, of holding a Senator or a Congressmen accountable not for the legislative acts that they have right to review and exercise a judicial power to measure their constitutionality but to have the power to pass officially in any way, all of their conduct as a legislator, that would absolutely destroy the independence of the legislative body.

And that was precisely the reason I think the Court said in the Johnson case, that this was intended to keep legislators from being held accountable to the other branches of the government or intimidated by the other branches government.

I respect to submit that the question is whether the Dr. Rodberg is exempt, is the answer to the decision of this Court in the Johnson case where a Representative was prosecuted for conflict of interest, the conspiracy.

And this Court said the language of the speech or debate clause clearly proscribes at least some of the evidence taken during the trial exclude extensive questioning without concerning how much of the speech was written by Johnson himself, how much by his administrative system and how much by outsiders representing the loan company.

The government will try to ask specifically about certain sentences in the speech.

He has taken the stand there in his own behalf that the reasons for that inclusion and his personal knowledge of the facts and materials supporting those statements.

In closing our argument the theory of the prosecution was very clearly depended upon the wording of the speech in addition to questioning the mammoth preparation and the precise ingredients of the speech, the government inquired into the motives for giving it.

The constitutional infirmity, in fact, this prosecution is not merely a matter of introduction of inadmissible evidence.

The attention given to the speech of substance and the motivation was not an incidental part of the government’s case which might have then aborted by omitting certain lines of questioning or excluding certain evidence.

Warren E. Burger:

You can finish Senator.

Sam J. Ervin, Jr.:

Then the Court concludes, we see in our State from the conclusion, that an (Inaudible) Judicial inquiry made in the course of a prosecution by the executive branch under a general conspiracy statute, violates express language of the Constitution on the policies which under — I believe my time has expired.

Warren E. Burger:

Thank you.

Sam J. Ervin, Jr.:

I am sorry, I didn’t get time to allude to the question that —

Warren E. Burger:

I think you have a question over here.

Harry A. Blackmun:

Senator may I ask just for information purposes, is there any limit on the number of aides a Senator or Congressman may have as to number?

Sam J. Ervin, Jr.:

I think there are two practical limits.

One is his allowance to compensation of legislative aides and another is his office space he has got.

I don’t exhaust my allowance but my office space is so limited I couldn’t find another chair for giving it another one to sit on [Attempt to Laughter].

Harry A. Blackmun:

But, it is here an aide such as Dr. Rodberg is not on the payroll, the first of those provisions has no significance?

Sam J. Ervin, Jr.:

No sir.

Harry A. Blackmun:

What’s to prevent the Senator from having 150 Dr. Rodbergs?

Sam J. Ervin, Jr.:

Well I think it would be impractical.

I think that sounds to have many probably ought be removed for mental incapacity.

[Laughter] I think as long as the Senator is getting assistance from the man — performance of any of his senatorial functions or what he conceives to be a senatorial functions at, there is no limit.

Warren E. Burger:

Can you illustrate that a little bit Senator?

Suppose he calls on Professor of Economics at some University, doesn’t hire him, doesn’t appoint him, just write some of letter and says, would you give me your views about this, would you regard that person whom he is consulting as with in the immunity of the Speech or Debate Clause?

Sam J. Ervin, Jr.:

Well frankly, I would give it a liberal amount of interpretation do that.

I think anyone who assists a Senator in the performance of his legislative functions is exempt —

Or compensation?

Sam J. Ervin, Jr.:

Or compensation.

Or a Congressman?

Sam J. Ervin, Jr.:

Or Congressman, yes.

William J. Brennan, Jr.:

Senator could you say in just a sentence perhaps what is the Senate’s position on the republication question?

Sam J. Ervin, Jr.:

The Senators themselves probably if you wrapped up to both of senators, it would be divided on —

I myself take the position that that would be covered either by the Speech or Debate Clause or by the First Amendment.

Mr. Justice Douglas wrote a marvelous opinion in the Rumley (ph) case and Richard Rumley (ph) was someone before the un-American activists, I hope his is not being charged off.

William J. Brennan, Jr.:


Sam J. Ervin, Jr.:

He was someone for the un-American activists committed the House unless called upon to divulge to the committee, the names of all of the persons who had both of — his books he published them above quantities.

He refused to produce them and was prosecuted for contempt of the committee and this Court held that he was protected by the First Amendment and the majority of the Court held in the opinion by Justice Frankfurter that the prosecution was unsupportable because the committee was not authorized by resolution going into this activity to conduct this investigation.

But Mr. Justice Douglas and while I think one of the finest opinions he or any other member of this Court has ever written, he said he meant the constitutional problem.

Justice Frankfurter said if they place the interpretation only resolution that the committee did have the power to compel the publisher, to disclose the names of the purchasers of his books, that would raise the serious constitutional question.

Mr. Justice Douglas wrote an opinion in which Justice Blackmun concurred, in which he says (Inaudible) than to the constitutional questions.

Respondent represents a statement of the American Press some may like what he publishes, others may disapprove.

These tracks maybe the essence of wisdom to come to others that point of view and philosophy would be on that.

To someone else that words may be harsh and impulsive, to others they may carry the hope of the future.

We have publisher who through books and pamphlets seeks to reach the minds and hearts of the American people.

The aim of the historic struggle for free press was to establish and preserve the right of the English people to full information with respect to doings or misdoings of their government.

Well, that is not cited in the brief, it occurred to me last might, but I think this on that point.

I think that some that – that Woodrow Wilson said one of the most important functions of Congressman, his important function he has a duty to inform his colleagues, the duty to inform his constituents, the duty to inform the general public about he thinks the government is being run.

They now use not only the with congressional record and the committee reports, but in many instances Congressmen use a radio and a television, they are right books on the subject and I think that this Speech and Debate Clause is broad enough to cover any activity where a Senator or Congressmen attempts to inform either his colleagues or his constituents or the general public and I think it’s protected by the Speech and Debate Clause.

But, I think if he is not protected by the Speech and Debate Clause, then he is protected by the First Amendment because everybody gets a right to comment on the government under the First Amendment.

And I think that if you could summon even third parties and the Court held in this case you couldn’t summon third parties to testify to the meeting of the committee, but I think if you summon third parties that if you do not transgress, regardless the third party should testify that action of a Senator or Congressman and inform his constituents, that is covered by the Speech and Debate Clause, but it is not covered in that by is right as a citizen under First Amendment because if you intimidate a publisher or a publisher acting for Senator, by asking him to the divulge names of the purchasers of this book just equals as intimidating having official inquiry made by the government as to the circumstances under which they agreed to publish the book.

Warren E. Burger:

Thank you Senator Ervin.

Senator Saxbe, you have 10 minutes, we’ll charge the extra time Court [Attempt to Laughter] and add that to Solicitor General’s time.

William B. Saxbe:

Mr. Chief Justice, may I please the Court.

I want to join with Senator Ervin in thanking this Court for allowing us to orally argue this case, representing the Senate as amicus.

I think it is particularly important to note that this is the first time the Senate has, as a body appeared before this Court.

The gravity of this case and the potential impact of your decision on the doctrine of separation and power that brings the importance of this case and the Senate to you today.

The Senate brief is not an ordinary amicus brief I might add.

William B. Saxbe:

It is a statement of the Senate understanding, the meaning of the Constitution.

We respectfully hope that our statement will aid to Court in the determination of this case which carries this great weight in regard to the legislative branch and its ability to serve the people that it represents.

Our brief is filed on the half of Congressional privilege.

It is not a defense of Senate Gravel or his aide and specifically not a defense of their conduct which established the fact pattern of this litigation.

Many Senators, including myself, feel that the junior Senator from Alaska deeply abused the rules of the Senate.

We feel strongly that his actions, while possibly adhering to the letter of the rules certainly violated the spirit of it.

Senator Gravel’s actions were reprehensible.

I am in agreement with every Senator who thinks that he did an outrageous thing, but I believe it is for the Senate to decide whether he be punished and to inquire as to the conduct would necessitate punishment.

If the Senate (Inaudible) demurrer the executive still could not use the subpoena and contempt power of the Judiciary to punish him because of the Congressional privilege we believe that’s provided by the Constitution.

Any punishment or a sanction is for the Senate and the Senate alone to meet out.

A Grand Jury inquiry is barred under Article 1, Section 6 of the United States Constitution commonly known as the Speech or Debate Clause.

Its purpose and historical use is not to reward members of legislative branch with immunity but to allow them to perform their duties and obligations of elective officers.

Each member of Congress must decide for himself which issues require ventilation and how can best inform is constituency.

It’s not for the executive to challenge, or for the judiciary to judge a member’s choice of issues, to publicize or other methods of ventilation to his constituency regardless of whether they may be considered ill-advised.

The Senate acts as a whole or in part may not prove the exercise of privilege by Senator Gravel in this case.

And I am here to represent that part of the Senate which vehemently disagree with his actions but join him in the assertion of the congressional privilege.

The executive or judiciary branch cannot dictate the bounds of congressional privilege if we are to retain meaningful separation of powers, whether its necessarily board in concept of congressional immunity.

The Constitution provides the members of Congress, may not be questioned in any other place, or any speech or debate or any action surrounding a legislative and informing functions.

The Constitution does not allow the executive to second guess a member of Congress as to what his legislative duties are even if the judiciary agrees by testing his congressional privilege by grand jury inquiry.

Byron R. White:

Senator, if the government indicts someone for wiretapping and indicts two people for wiretapping, and one of them is given immunity and he testifies that he was hired for the wiretap by a Senator in order to aid the Senator in his legislative duties to get information to conduct a hearing, would you think his co-defendant may be convicted or –?

William B. Saxbe:

If the Senate and he is referring to a Senator, he is employed by him?

Byron R. White:


William B. Saxbe:

If the Senator said yes, this man —

Byron R. White:

The Senator doesn’t say anything, there are just two men who have been hired and one of them says we were hired by a Senator to tap a wire, not (Inaudible) of the statute?

William B. Saxbe:

I don’t think it can be extended in that manner in any way.

It can only be extended by the Senator or by the body itself.

Byron R. White:

Alright and if the, if the testimony is that they were hired by the aide to the Senator, could the aide be convicted for wiretapping —

William B. Saxbe:

I don’t —

Byron R. White:

Or for the conspiracy to wiretapping?

William B. Saxbe:

I don’t think that you can extended beyond the first degree at that point.

William B. Saxbe:

I don’t think that it could be extended to a wiretapping.

I have searched my mind on this, a very difficult position. Suppose its June of 1944 and a Senator discloses to the enemy the D-DAY landing dates in France.

Byron R. White:

Well I take it that Senate’s position is though is that the Senator could not convicted for a wiretapping?

William B. Saxbe:

I think that, that with follow if it was in performance of what he felt to be his constitutional duty.

Byron R. White:

Well, no body questions about what he desired to have information, that was very relevant to his legislative duties and he was quite willing to break — to not comply with wiretap law in securing information?

William B. Saxbe:

But, I think that the —

Byron R. White:

Would you say that he was immune or not?

William B. Saxbe:

I would say that he would be immune if he could successfully tired in to his legislative duties.

Now, he can be arrested for running through the traffic light out here in front.

Byron R. White:

I suppose, if they got to Senator in his aide and the third party in the act of breaking in a building somewhere, they could arrest all of them?

William B. Saxbe:

Absolutely, just as running through this traffic light out here.

Byron R. White:

Even though the information that he were going to get on to the file somewhere or was going to, it’s going to be introduced in on committee hearing?

William B. Saxbe:

That would be a difficult thing to determine, but the Senate and the Congress itself —

Byron R. White:

Well, let’s assume an aide and the Senator and a third party had thought seizing a — caught in the act — one of them caught in the act of breaking into the building, the only thing is the other one has already gone with the guts and that gets back to the Senator and he introduces it into a legislative hearing.

So, there is no question that the material that was stolen is used in a legislative hearing, it is no question about it and it also relevant to the subject matter of the committee.

May be aide be convicted or the third be convicted?

William B. Saxbe:

I can foresee that there would be certain circumstances, primarily in criminal law where the Senate would have to deliver up one of there member and aides because he so stepped outside the scope of any reasonable Senate activity that he would have to be prosecuted.

William J. Brennan, Jr.:

Well, Senator may that not be in this very case, an issue of source of the Pentagon papers?

William B. Saxbe:

I don’t think that they can get to the source of the Pentagon papers through Senator Gravel.

Now this is the nub of —

William J. Brennan, Jr.:

Well, how about the aide?

William B. Saxbe:

I don’t think that you can strip the aide of Senator Gravel’s immunity in this particular instance.

Now, as to the Senate’s responsibility in following through on this, yes, I feel that there is a responsibility.

William J. Brennan, Jr.:

But exclusively with the Senate?

William B. Saxbe:

But exclusively with the Senate and with the Senator’s aide in this particular instance.

Now, I can foresee Criminal Acts, as Justice White has raised, where the Senate would have to deliver up one of their members to the regular procedures of the courts.

Warren E. Burger:

But when you say, deliver up to, is open season, in fact they don’t have to deliver him really — you mean he is not covered by the immunity?

William B. Saxbe:

He is not covered by the immunity and he might appeal by saying, this is something that I need in my committee.

I’m breaking into this room, to get this and then of course, if the Senate rushed to his defense and said this is a very thing that we have a great need for and it’s important, I can see a weakness in the case, but I don’t think that particular thing would happen.

Warren E. Burger:

What you are saying perhaps is, that house breaking is house breaking and members of Congress have no immunity to that?

William B. Saxbe:

And the members of Congress do have the responsibility of living up to keeping their own House in order and I hope that they will do a proper job thereby.

Thurgood Marshall:

Senator suppose somebody steals government records, breaks property in order to get it and bring it to a member of Congress and tells him what he has done, and the member of Congress puts him on his staff, is he outside?

William B. Saxbe:

I think that the present case is, I can see the —

Thurgood Marshall:

No, my question has no relation to present case?

William B. Saxbe:

Well, I think in the particular instance, that he has to be employed at the time and I was going to say that in the present case, the question has arisen in our minds as to whether there was an attempt to close Dr. Rodberg with this immunity after the fact and I think that there is something that the Senate could well look into.

But in this man through his stealing and takes him and then there is an attempt to cloth him, I think it would fall by it’s own weight.

Thurgood Marshall:

Senator my point was that this administrative aide, I don’t want to rank him in anyway, without the consent of the Senate, Senator or Congressman, goes out, breaks out locks, steals property and brings it in.

One, suppose the Senator said, “Look he shouldn’t have done that” or suppose the Senator said, “fine,” either way, is that aide protected?

William B. Saxbe:

He is not protected for the acts that were performed prior to being clothed by this and I would think that Senator would have a responsibility.

If he knew that he violated the law, to immediately notify the proper authority.

William H. Rehnquist:

Senator Saxbe at one point during your argument you adverted to a D-Day situation.

Could you elaborate on that at all?

William B. Saxbe:

I think that this is a worst type of situation that I could imagine, or a man would disclose information that would compromise the armed forces and they actually feature this character.

I think even in that case, it would fall upon the Senate to punish and to move against this Senator who has violated his trust.

I think that in the worst instance of this nature where he took his advantage to classified documents and disclose them, that he still would be subject to the punishment of the Senate of the United States or the House of Representatives as the case maybe.

William H. Rehnquist:

And only to that?

William B. Saxbe:

And only —

William O. Douglas:

But that raises the question Senator whether everything that stand classified is out from it under the First Amendment and that’s a very large question?

William B. Saxbe:

Yes and one that has been carefully avoided I might add.

[Laughter] The classified nature of the information is not the real issue of this case.

I don’t think.

Warren E. Burger:

Thank you Senator Saxbe.

Mr. Solicitor General, would you prefer not to divide, is counsel going to engage only in rebuttal.

No Your Honor we have —

Warren E. Burger:


Excuse me, Mr. Reinstein, you may proceed.

You might want to plan your argument by having in mind that we will have about 7 minutes now and whatever the balance is in morning.

Robert J. Reinstein:

Mr. Chief Justice and may I please the Court.

As Senators Ervin and Saxbe have indicated, there are really two basic issues in this case.

One issue is that scope of the Speech and Debate Clause, that is the kinds of activities for the member of Congress which are privileged under the Clause and the second issue was whether the grand jury can conduct an inquiry into these activities if they are privileged.

Robert J. Reinstein:

I would like to spend the time remaining today, to talk about the first issue and in particular on the question of publication.

First of all it is far too late today and indeed by about 300 years to argue that the free speech privilege of legislators encompasses only speech and debate in the literal sense.

The privilege has never been construed that way in America or in England.

On the contrary it is always been construed broadly, to cover all functions of legislators, which are necessary to fulfill goals of representative government and according to Kilbourn case codified that by saying, those customary actions of members of Congress which are relative to the legislative process.

Obviously house breaking for example, isn’t related to legislative process, it would not fulfill any goal of representative government, even under some kind of claim that the Senator needed the information.

But, the standard that we were suggesting is the broad standard of the Clause, those activities necessary to fulfill goals of representative government, is we think the only kind of standard which meets the purposes of the Clause and the Senator Ervin said, so well, those purposes are enforced to preserve separation of powers and to enable a representative to discharge its obligations to the electorate without fear of either Executive or Judicial intrusions.

William J. Brennan, Jr.:

Well I guess basically, it is because there is value to the people as people in the independence of legislators?

Robert J. Reinstein:

That’s right, Your Honor.

The Speech or Debate privilege —

William J. Brennan, Jr.:

You can phrase it in separation of the powers in other terms, but that’s what’s at the bottom, what it is?

Robert J. Reinstein:

That’s right Your Honor, it’s to secure the rights of the people in representative government.

It is not (Inaudible) of an office and has nothing to do with the status of the individual.

It is to preserve the rights of the people.

Warren E. Burger:

Another way to say that I suppose is that it’s to preserve the integrity of an independent legislative body, isn’t it?

Robert J. Reinstein:

Yes Your Honor, both the independence and the integrity of an independent legislative body.

Therefore, the Clause does cover broadly all of those necessary functions and we think it is also a little too late in the day to argue that the informing function of Congress does not fall within that category.

In our system of government the because of the sovereignty of the people, because of the necessity of securing the rights of the people, Representatives have a duty, they have an obligation to inform their colleagues and their constituents and the public at large, about matters of public importance and specifically as Woodrow Wilson said in his classic study on Congress, specifically about executive conduct in both domestic and foreign policy.

This obligation does not only derive from the fact that the people must be able to have this information in order to govern themselves intelligently, but it is also from a perception about the very operation of the Legislative process and that is the people must have this information in order to inform — in turn inform their representatives of their well considered views on pending and potential legislations.

What this is an interplay and I think Your Honors that practically every Congressman from the birth of the Republic has recognized this that there must be an interplay between a representative and the people and that this interplay is the bed rock, the heart of our system of a representative government.

Warren E. Burger:

Would you think that’s right enough so that the committee of the Congress for example, could subpoena all of the contingency military and defense plans from the department of defense where the joint chiefs of staff come over and testify about their contingency plans?

Robert J. Reinstein:

The question there Your Honor in the securing information for the subpoena power of Congress, is whether or not there is an executive privilege implied in Article 1, to prohibit this power, to prohibit the scope of the subpoena.

This is never really been decided by this Court.

There is of course an article 1 enumerated executive privilege.

It has been implied in the constitution by – at least as has been arguably implied because many Presidents have asserted the privilege and one would get into a conflict there between two constitutional privileges.

One the privilege of Congress to obtain information and the second the privilege of the executive branch so withhold information from Congress, it’s a difficult problem.

We don’t have any kind of conflict of that sort here.

What we have here is a member of Congress, who has information critical of executive conduct in foreign policy making not available to the people of United States through the holding of the subcommittee and through the publication material.

And this is exactly the kind of conduct that is fallen within the mainstream of the hardcore purpose of the Speech and Debate Clause.

The privilege both in England and America arose in order to allow unrestrained criticism by members of Congress of the administration.

We don’t have here a civil case, where an individual claims that his constitutional rights are being violated, willfully by a member of Congress.

Robert J. Reinstein:

Those cases have been before this Court.

Normally you have a case here of bribed Congressmen, who argues a separation of power theory in some attenuated fashion.

What we have here is a situation of United States Senator who is criticizing the executive about matters of overwhelming public importance, and if this kind of conduct is not protected by the Constitution then the promise of the Speech or Debate Clause which is as Mr. Justice Brennan and the Chief Justice have said, to preserve the independence and the integrity of the legislature, than that promise is illusionary.

Now I don’t want the Court to think that we are making a novel argument here.

In fact the free speech privilege of both England and America we think that there is overwhelming evidence to support the proposition that these privileges were designed specifically to enable members of Congress to inform the electorate about executive behavior, and specifically through the publication of committee records.

The English Bill of Rights resulted from a notorious prosecution of the Speaker of the House of Commons, who assert — who had privately printed and distributed a committee record, accusing the King of malfeasance in office and that led to the exile of James II and the enactment of first free speech privilege and historians are unanimous and concluding that the very purpose of the codification was to bring publication within it.

Warren E. Burger:

Well do you have to go beyond the Speech or Debate Clause for purposes of your case?

Robert J. Reinstein:

No Your Honor we do not think so.

The Court of Appeals felt that there might be a common law privilege akin to the executive privilege, but we think that the Speech or Debate Clause itself is adequate and that no additional privilege need to be implied or created out the common law.

In our own country Thomas Jefferson and James Madison both articulated the view very eloquently that the free speech privilege covered communications from a member of Congress to its constituents in the form of newsletters or anything else.

There was a Grand Jury investigation during a reign of the (Inaudible) laws fairly similar to this one, the claim of the executive laws that members of Congress were giving aid and comfort to enemies of the United States and Jefferson condemned that investigation as a blatant violation of privilege.

Warren E. Burger:

We will resume there in the morning Mr. Reinstein.