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?

Media for Gravel v. United States

Audio Transcription for Oral Argument - April 20, 1972 in Gravel v. United States

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

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.