McAdams v. McSurely – Oral Argument – March 01, 1978

Media for McAdams v. McSurely

Audio Transcription for Opinion Announcement – June 26, 1978 in McAdams v. McSurely

del

Warren E. Burger:

We will hear arguments next in 76-1621, McAdams against McSurely.

Mr. Easterbrook, you may proceed when you are ready.

Frank H. Easterbrook:

Mr. Chief Justice and may it please the Court.

This case is here because 10 judges of the United States Court of Appeals for the District of Columbia Circuit divided five to five on the question whether there was more than merely colorable substance to an allegation that John Brick, a senate investigator violated respondent’s rights when he took copies of some of their papers in 1967.

We do not pursue here the question that divided the Court of Appeals.

We argue instead that the speech or debate clause bars respondent’s suit whether or not Brick erred.

William H. Rehnquist:

Mr. Easterbrook, I do not know whether you were in Court yesterday night when my brother Brennan asked counsel to the proceeding case how the appeal came from the District Court to the Court of Appeals.

I have the same curiosity here.

It seems to me, this is really just an appeal from a motion for denial of summary judgment?

Frank H. Easterbrook:

It was your Honor.

The original panel that heard the appeal from the denial of summary judgment wrote several pages explaining why this was an interlocutory order within the meaning of Cohen against Beneficial Finance.

William H. Rehnquist:

They equated it to a kind of double jeopardy?

Frank H. Easterbrook:

They equated it – they essentially followed the analysis of this Court followed in Abney, that is that since the speech or debate clause creates a right not to be questioned in any other place, and since the process of discovery in trial is the kind of questioning that the speech or debate clause forbids, if it applies here.

Then there is a right to an interlocutory appeal to have that question resolved before discovery and trial.

The En Banc Court adopted that and we do not understand that respondent’s dispute of that analysis.

William H. Rehnquist:

We are not bound of course by the party’s stipulations or agreements on a jurisdictional platform?

Frank H. Easterbrook:

No, of course not, Mr. Justice Rehnquist, but we think it does follow from Abney.

John Paul Stevens:

Under that ration — the Abney rationale, could we consider any kind of immunity claim other than one predicated squarely on the speech and debate clause?

Frank H. Easterbrook:

Probably not, Your Honor, not at this stage and indeed that was the basis of our appeal.

This case grew out of the 1967 seizure of respondent’s papers by Kentucky officials.

Respondents have not contended that the federal government or the Congress played any role in the initial seizure.

After the seizure, a three-judge District Court declared unconstitutional the Kentucky statute pursuant to which the seizure had been made and it entered an order which I will call the safekeeping order, directing the Kentucky State’s attorney to keep custody of the documents.

A senate subcommittee was then investigating urban riots.

It acquired information that appeared to indicate that respondents had pertinent information and John Brick, the senate investigator went to Kentucky to investigate.

John Paul Stevens:

Would you say again what the First District Court litigation was?

Frank H. Easterbrook:

The three-judge District Court litigation concerned the constitutionality of the Kentucky Sedition Statute.

John Paul Stevens:

And held it as unconstitutional —

Frank H. Easterbrook:

And held it was unconstitutional —

John Paul Stevens:

As an auxiliary to that, it entered the sequestration order, custody order?

Frank H. Easterbrook:

It entered an order, it entered a custody order.

Frank H. Easterbrook:

There has been a great deal of dispute in this litigation about what that custody order meant which I do not intend to pursue here, but that order was pending on appeal or any further proceedings.

A number of further proceedings although not an appeal ensued, including an attempt to subpoena the documents while they were held in Mr. Raleigh’s custody.

John Paul Stevens:

Whose attempt?

Frank H. Easterbrook:

The attempt by the senate subcommittee to subpoena the documents.

That was resisted by respondents and several stays were entered by this Court on appeal that was an attempt to block the subpoena which this Court eventually dismissed for want of jurisdiction.

An appeal then went into the Court of Appeals for the Sixth Circuit which held that the District Court’s custody order should have expired once the time for appeal had lapsed.

The papers were then returned to the respondents without prejudice to the enforcement of the subpoena against respondents and they were then served with a subpoena.

John Paul Stevens:

But what happened in this case happened during the life of the custody order, did it not?

Frank H. Easterbrook:

Well, the complaint that was originally filed by respondents challenged not only the fact that Brick looked at the documents and took copies of them back to Washington.

It also contended that the senate subcommittee subpoena was a violation of their constitutional rights, that the procuring of a citation for contempt of Congress was a violation of their constitutional rights for which they could recover damages and there were a very large number of other allegations essentially challenging the entire course of conduct both in the three-judge District Court and before the Senate.

Warren E. Burger:

In this time spectrum, will you pinpoint just when it was that Mr. Brick and his colleagues came into possession?

Frank H. Easterbrook:

Mr. Brick came into possession of the 234 copies in the fall of 1967 and they were immediately taken back to Washington.

He went out to Kentucky in the fall of 1967?

Frank H. Easterbrook:

He did and he was given in his motel room copies of 234 documents by the prosecutor and by Mr. Scott, the county detective.

Prosecutor and the –both are state agents?

Frank H. Easterbrook:

Yes.

He was then allowed to look at the originals which were then held in a vault pursuant to the safekeeping order.

He was not allowed to copy any of the originals and did not.

What he took back to Washington with him were the 234 copies that were given to him in his motel room.

And is there any question as to at whose direction he had made that trip to Kentucky?

Frank H. Easterbrook:

He had made the trip to Kentucky at the direction of Senator McCullen and the staff counsel of the subcommittee, there is no question about that.

Warren E. Burger:

What I want you to pinpoint is on the day that this was handed to him at the motel in Kentucky, what was the status of the three-judge Court litigation?

Frank H. Easterbrook:

On the day that it was handed to him at his motel in Kentucky, the three-Judge District Court had already entered an order enjoining the state prosecution, relying on Debrowski against Pfister as the authority for the injunction.

The the time for – the final time for appeal of that order had not been expired and there had been no alteration in the safekeeping order which had been entered earlier.

The safekeeping order was entered I believe on September 14, 1967.

Mr. Brick paid his visit on October 8 and October 9, 1967.

He then returned on October 16, 1967 with a subpoena which was — with several subpoenas which were served on Ratcliffe, the custodian on the United States Marshall and on the McSurelys.

Those subpoenas eventually led to the state proceedings in this Court.

After the documents were finally returned, after the Sixth Circuit had ordered that they be returned, a new subpoena was served on the McSurelys and they were called before Congress personally to the subpoena and refused either to testify or to produce the documents.

They were cited for contempt of Congress and they were convicted.

Frank H. Easterbrook:

That conviction was reversed.

The ground for reversal was that the subpoena was a fruit of the poisonous tree.

The tree was poisonous, the Court of Appeals ruled because the initial search was conducted pursuant to an over broad warrant.

The warrant which appears in page 76 of the appendix, authorized state detective to search the McSurely’s home and find therein any seditious literature and seize the same.

The Court of Appeals concluded quite correctly that that was over broad because it did not specify what was to be seized.

Meanwhile, on the same day they appeared before the senate subcommittee pursuant to the subpoena, respondents filed this suit seeking damages for alleged violations of their rights.

The complaint as amended named Senator McCullen, Brick, Ratcliffe and two senate employees as defendants.

The Court of Appeals found in the complaint seven categories of alleged wrong, covering the entire course of conduct through the issuance of the subpoenas and the citations for contempt of Congress.

Only two of those categories concern us here.

On the other five, the Court unanimously held that the speech or debate clause bars any action by respondents and they have not filed a cross petition from that decision.

The Court of Appeals ordered further proceedings, including discovery and perhaps trial with respect to two types of activity.

The first is Brick’s looking at and taking to Washington the 234 copies without first obtaining the permission of the three-judge District Court.

The second is the allegation that the subcommittee disseminated some or all of the 234 copies to agents of the Internal Revenue Service.

Because the first question concerning Brick’s activities presents the most difficult problems, I intend to discuss only those problems during oral argument unless time permits.

William H. Rehnquist:

Mr. Easterbrook, are you planning to go into the question of whether or not the complaint stated a claim for relief?

The reason I ask you that is I read from part of Judge Leventhal’s opinion and from part of Judge Wilkie’s opinion that all they were treating was whether or not the complaint states a claim for relief, was there immunity here or do you believe the two are so in extrapoly intertwined that you cannot discuss one without the other?

Frank H. Easterbrook:

The Court of Appeals found them to be essentially the same question and I think that is the problem with the Court of Appeals decision.

But I think it is easier to answer that question if I can set up first what I see is the way both Judge Wilkie and Judge Leventhal approached the question in this case.

I think the Court of Appeals employed a three-step syllogism and it ran like this.

First, the speech or debate clause protects activities that are essential to legislating.

Second, the employment of unlawful means is not essential to legislating.

Third, therefore the speech or debate clause does not extend to cases in which a colorable claim of unlawful conduct is made.

The 10 judges of the Court of Appeals, Mr. Justice Rehnquist then divided equally on the question whether a colorable claim of wrongdoing had been made out.

William H. Rehnquist:

But all 10 seem to agree on your syllogism?

Frank H. Easterbrook:

All 10 followed that syllogism, I believe.

We start from the same premise that is that the speech or debate clause protects activities that are essential to legislating, but our course thereafter is significantly different from that followed by the Court of Appeals.

We believe that gathering information as part of an inquiry into a subject on which legislation could be had is essential to legislating.

We believe that Servicemen’s Fund held at least that much.

Brick was concededly gathering information as part of an inquiry into a subject on which legislation could be had.

The Court of Appeals unanimously agreed with that proposition.

Frank H. Easterbrook:

We conclude from this that because Brick was engaged in an activity leading potentially to legislation, that his activities in general are covered by the speech or debate clause and the fact that he erred, that is that he may have used unlawful means or violated the Fourth Amendment in obtaining access to the documents is therefore not relevant.

In that sense, Mr. Justice Rehnquist, the statement of the cause of action in the speech or debate immunity question are really quite separate.

After all, the speech or debate immunity exists only to erect a shield against charges of wrong doing, even constitutional wrongdoing as this Court said in Doe.

An immunity that protects only when no wrong has been committed would be no immunity at all.

We take the Court of Appeals to hold that the immunity is dissipated by a colorable claim of wrongdoing.

That is the same thing as abolishing the immunity.

Because otherwise, a motion for summary judgment or a motion to dismiss the complaint for failure to state a cause of action would be granted and there would be no need for immunity.

The Court of Appeals in other words has held that the immunity pertains only when the complaint would have been dismissed on its face.

Does this deal with Dembrowski against Eastland?

Frank H. Easterbrook:

In Dembrowski against Eastland, Your Honor, involves — first it is necessary I believe to separate the holdings of Dembrowski.

There were two allegations of wrong doing in Dembrowski.

The first was that committee counsel, Sourwine had taken part in an illegal raid by state officers.

The second was —

Warren E. Burger:

He was actually physically present in the raid in the Dembrowski case.

was he not?

Frank H. Easterbrook:

He was your Honor.

The second is that the committee, including Sourwine –

So was Brick, but you would think that is irrelevant?

Frank H. Easterbrook:

No, Your Honor, it is quite different.

In Dembrowski after the state raid, Sourwine and the committee, including Senator Eastland then according to the complaint, took over the documents that had been seized in the raid for use by the senate subcommittee.

With respect to the takeover allegations, this Court held that speech or debate immunity was absolute and that there was no liability.

This we believe is a takeover case.

The raid took place without the presence of Brick.

The documents were then taken over out of the hands of Mr. Ratcliffe by the senate subcommittee for use by the Senate.

So you do not think you are just essentially agreeing Judge Wilkie?

Frank H. Easterbrook:

No, we do not.

That sounds to me like as argument there was no colorable violation?

Frank H. Easterbrook:

We made that argument in the Court of Appeals and we did not press it here because we think that there is solid immunity whether or not there was a colorable violation.

But essentially our approach rests on the contention that the immunity is triggered by the purposes of the activity in which the senator or the senate aide was engaged.

We believe that this approach is consistent with and indeed required by the considerations that led to the establishment of the constitutional privilege.

Potter Stewart:

How far does that argument reasoning take you?

Let us say his purposes were to very clearly to aid the legislative process by aiding the congressional committee and in pursuant of that pristinely projected purpose, he simply burglarized a house and stole things out of a locked drawer or safe, is he protected under the speech or debate clause for that?

I am talking by he, I mean an aide to a committee?

Frank H. Easterbrook:

Mr. Justice Stewart, that question raises a number of complexities and my answer to it ultimately is yes, probably, he is protected.

Potter Stewart:

Including murder I suppose or maybe not ?

Frank H. Easterbrook:

That too falls within my yes probably answer, but I would like if I can, this one, the answer is not intuitively appealing I must concede.

Not very appealing in any other way, is it?

Thurgood Marshall:

How far down the line do you go on this?

If the senator asked the staff member to get a copy of the paper a Joe Doke saved and the staff member hides Joe Dokes who hires a Mafia member, would – is the mafia member —

Frank H. Easterbrook:

Alright, that of course is not this case.

It would be difficult to say whether the Mafia member was a senate aide.

Thurgood Marshall:

Of course not, probably the Mafia member is getting a paper which the legislator needs for his speech and debate?

Frank H. Easterbrook:

I think the answer might be that he is not a proper senate employee, and therefore, the question does not arise, but I would like Mr. Justice Stewart…

Warren E. Burger:

Say they put him on the staff?

Frank H. Easterbrook:

I would hope that the Senate would have the good sense not to do that.

No, but suppose it has?

Frank H. Easterbrook:

I think in that event, the speech or debate protection applies, but I would — before I continue along this string of answers —

Thurgood Marshall:

And then also suppose he killed a man in the standing —

Frank H. Easterbrook:

Mr. Justice Marshall, before I continue along these string of answers, I think I ought to develop the background that led me to this answer.

Warren E. Burger:

Why do you think you need to go that far?

Frank H. Easterbrook:

Mr. Chief Justice, I do not.

Although I am being pressed to go that far by members of this Court, but I would like to present —

Warren E. Burger:

You can always answer if you want in this Court as counsel often does that when you get that case, you will argue it, but that you do not have it here.

I have done it in your situation.

Frank H. Easterbrook:

Mr. Chief Justice I think it is important to recognize that none of those hypotheticals is this case.

Potter Stewart:

But Mr. Easterbrook, you said the controlling factor is purpose and if that is true, then that case is here?

Byron R. White:

Especially when the Court of Appeals said there was a colorable claim here that there was deliberate violation of the Fourth Amendment, in short a deliberate theft of the papers?

Frank H. Easterbrook:

That is right Mr. Justice White and I think —

Byron R. White:

And the fact where — and you say that even if it were tried out and proved that he engaged in a deliberate theft, he is immune?

Frank H. Easterbrook:

I agree.

Frank H. Easterbrook:

I think I have to deal with that implication of my argument, but I would like to start at the beginning if I might.

The question of deliberate use of force or the question of deliberate violation of the Fourth Amendment is I think the most difficult case for the arguments that we are making.

The question poses a palpable abuse of power.

That is it’s assumption and it is always hard, I suppose to defend palpable abuses of power, but not all cases are that clear.

The problem of sorting abuses, even palpable abuses from ordinary mistakes and the problem of sorting ordinary mistakes from things that are reasonable within the meaning of the Fourth Amendment is not always easy, particularly when dealing with a concept like reasonableness.

The purpose of the immunity, one of the major purposes of the immunity is to deal with the sorting process itself as well as with the liability for the end result once the sorting process has been completed.

The process of litigation and of determining whether this was such an intentional abuse, Mr. Justice Stewart is one of the things to which the speech or debate clause was most closely directed.

A claim of palpable abuse can be made in pleadings or by plaintiffs, but may prove to be false and the process of trying the facts may be difficult and time consuming.

Moreover an apparent violation may turn out to be quite reasonable within the meaning of the Fourth Amendment.

This Court’s cases show that quite often, take for example the claim that someone’s house was searched without a warrant which is at least on its face and presumptively a violation of the Fourth Amendment.

It may turn out that the defense has exigent circumstances and that requires extremely time consuming and complicated litigation in many cases just to determine whether that was a violation.

Even so, I have to acknowledge that the argument for immunity is an argument for indulgence.

It asks for forbearance rather than approval.

The claim does not and cannot have any error of just treatment to it.

Yet the framers decided that forbearance is the better course and that error is not a reason to overcome the immunity.

To the contrary, the fact that error is inevitable, that some men are wicked and that grievances are plentiful, it is the reason why there is immunity.

This shows we think that the allegation of even a blatant violation cannot lightly pierce the immunity, but our answer does not stop there to your problem.

Your question Mr. Justice Stewart assumes intentional misconduct.

Yet the speech or debate clause forbids scrutiny of intent, of the subjective intent of the actor.

Servicemen’s fund said that at pages 508 to 509.

This Court said so in the Johnson case.

It said so in Tenny against Branhoe of the Common Law variant of state legislator’s immunity.

Therefore, it is difficult to treat your hypothetical as a case in which intent can be proved because it cannot be proved.

We must treat it for present purposes as an unintentional but apparently very serious violation of the Fourth Amendment.

Otherwise, the rule simply invites plaintiffs to charge intent and pierce the immunity.

For this consideration too, counsels against easily allowing trials of claims of intentional misconduct, but beyond that we think the claim of intentional misconduct requires consideration of two questions.

First is the question which we think is dispositive here whether the activity viewed objectively was part of a legislative inquiry.

The second question and the one that led me to answer your question yes, probably is whether Article 1 of the Constitution gives Congress the power to conduct such an inquiry, that is whether what happened was part of the legislative business.

We think clearly that this case involves the first of these questions.

The Court of Appeals held that Brick was conducting a legislative inquiry.

Frank H. Easterbrook:

For this purpose, for the purpose of the legislative inquiry question, it should make no difference how serious the Fourth Amendment violation was.

If the investigation seen objectively was directed toward legislation then the immunity is absolute.

Warren E. Burger:

What Fourth Amendment violation are you for the purposes of this discussion attributing to Mr. Brick?

Did he break into somebody’s house?

Frank H. Easterbrook:

He did not and as we have said, we think it is very difficult to find a Fourth Amendment violation here.

Warren E. Burger:

Someone handed him material?

Frank H. Easterbrook:

We argued and we still argue that that is simply a turnover of documents.

It is very similar to a turnover of documents from someone, a private person who seized them wrongfully and then turned them over to the federal government in which this Court has held in Bordeaux against McDowell that there is no seizure at all.

What the Court of Appeals said or Judge Leventhal said with respect to that question, is that this is decisively different from the Bordeaux and similar line of cases because of the safekeeping order entered by the three-judge District Court.

We would have thought ordinarily that the violation of something like the safekeeping order is contempt of Court other than a violation of the Fourth Amendment.

Or it could be both?

Frank H. Easterbrook:

It could be both or it could be simply an actionable Common Law tort.

There is the possibility that under District of Columbia or Kentucky law, there is a Common Law tort lurking in the background of this case.

That is the reason why we elected not to make strongly here any arguments about the meaning of the Fourth Amendment, precisely because there may be allegations of other bases of liability based on Common Law.

William H. Rehnquist:

What if Senator McCullen in the course of an investigation is sitting in his office in the senate office building and suddenly realizes that he has left some important information out of his house, so he goes out, drives out to his house and in the course of driving out there, negligently runs over and kills somebody, is he legislatively immune?

Frank H. Easterbrook:

Mr. Justice Rehnquist, I think probably not.

He was engaged in ultimately something with a legislative purpose, but it is difficult to see that the driving was itself part of that inquiry.

Mr. Easterbrook (Voice Overlap) attorney?

Frank H. Easterbrook:

But that is a privilege against arrest.

You do not think they would apply to the accident?

Frank H. Easterbrook:

It would probably not apply to the accident, but I would prefer not to try to parse that constitutional provision here.

Warren E. Burger:

Does that apply when Senate is not in session or when it is in session?

Frank H. Easterbrook:

I do not know Mr. Chief Justice.

The final part of my answer to Mr. Justice Stewart, however, and the reason for the qualification probably is that the scope of Congress’ powers under Article 1 is considerably more difficult.

Those cases in which this Court has held in the past that the speech or debate clause does not protect particular activities, have essentially been cases in which the Court concluded that that activity was none of Congress’ business.

In the Killborn case in which the sergeant at arms of the house went out and made an arrest for the purpose of coercing a witness into testifying, the conclusion of this Court was that Congress had no summary contempt powers.

That is that it was attempting to exercise powers committed by the Constitution to the judicial branch.

In the Gravel case and the Doe case in which this Court held that the speech or debate clause did not apply to publicity, the holding was that the Article 1 power of Congress did not include a power to publicize information for the sake of publicity.

In Powell against McCormick, where it held that the speech or debate immunity did not bar representative Powell’s attempts to get back in the house.

The conclusion was that Article 1 of the Constitution did not authorize the exclusion of a duly elected member except for the three qualifications explicitly stated in Article 1.

Frank H. Easterbrook:

All of those cases are cases essentially holding that Congress was engaged in a pursuit that exceeded the authorization given it by Article 1.

For that purpose too, we think, it makes no difference whether somebody violated the Fourth Amendment.

The Fourth Amendment is not part of Article 1 and it does not tell you how far Congress can go or for what purpose.

Potter Stewart:

My question Mr. Easterbrook, however, was hypothesized upon the proposition that a congressional committee was considering legislation clearly within one of the enumerated powers of Congress under the constitution under Article 1 of the Constitution, clearly, specifically delegated to Congress, involving the counting of money, let us say and at the direction of the committee chairman, a member of the committee staff in pursuit of that clearly authorized congressional purpose, broke into a house, killed a couple of people and broke into a safe to get information clearly relevant to the inquiry being undertaken by the committee in the course of its consideration of clearly authorized legislation?

Frank H. Easterbrook:

Mr. Justice Stewart, I am sorry to have taken so long to get to my answer, but the reason why I had to qualify my yes with a probably was because that was the case in Killborn.

In Killborn, the reason for —

Potter Stewart:

But my question assumes completely and concededly clear congressional power, legitimate congressional inquiry in connection with a legislation clearly within the delegated powers of Congress?

Frank H. Easterbrook:

I understand that, but there are two kinds of congressional power that I think had to be distinguished.

One is the kind about which you were taking and about which I think is dispositive in this case because it is also present.

The second is the power to engage in the activity to fulfill its power and that is why we have the problem with Killborn in which Congress was engaged in gathering information for legislation.

Potter Stewart:

It had no summary contempt power?

Frank H. Easterbrook:

It had no summary contempt power and that is why we get to the problem.

It is conceivable that Congress has the power to ask for information within Article 1, but not to take it by force so that if that is a limitation of Congress’ power —

Potter Stewart:

But if asked for it and it is turned over then there is no occasion to consider the speech or debate clause because there has been no wrongdoing.

Your whole argument is that speech and debate clause only needs to be invoked when there has been wrongdoing on the part of the congressman or his staff?

Frank H. Easterbrook:

Unfortunately this is a case in which Congress asked for something.

It was turned over and the lower Court has held that nevertheless there is probably wrongdoing, so I —

Potter Stewart:

And you — are you not conceding for the purposes — conceding that there was wrongdoing?

Frank H. Easterbrook:

We are conceding for the purposes of this argument that it was actionable in some way.

Potter Stewart:

That is what I thought.

And also a violation of the Fourth Amendment, right?

Frank H. Easterbrook:

Yes, we are conceding for purposes of this argument.

But the qualification I had to put on my yes answer which I think is a sound yes answer for the reasons that I discussed before I got to this qualification is that it is at least conceivable that Congress’ power under Article 1 is only the power to ask and not the power to take so that for purposes of this case, since it clearly has the power to ask and Servicemen’s Fund said that it had the power to ask, there is no question.

But if the question about the power to take arises, it is going to be necessary to litigate whether that is within the scope of our Article 1 and that is reason for my qualification probably has taken.

I am sorry it is much too long to get there.

Oh! It has been a very interesting tour.[Laughter]

Lewis F. Powell, Jr.:

Before you conclude would you comeback to Dembrowski, it would seem to me on its face it would undercut your argument in senate to some extent, you distinguished it very briefly but would you go over it again for me please?

Frank H. Easterbrook:

Yes, Mr. Justice Powell I can now, having answered Mr. Justice Stewart’s question distinguish it in two ways.

One is that the underlying activity in Dembrowski in which Counsel Sourwine engaged, that is participating in the State raid was we think not an activity within the Congress’ power in view of Article I.

Congress has no legislative power to help states gather information for criminal prosecutions.

Warren E. Burger:

But have you by your concession what Mr. Sourwine’s actions in the same category as of Mr. Brick’s actions?

Frank H. Easterbrook:

We think that Mr. Sourwine’s actions are in the category of Mr. Ratcliffe’s actions here.

That is Mr. Sourwine’s actions in participating in the raid are the same as Mr. Ratcliffe’s actions.

The second thing Mr. Sourwine did was then take over the documents and carry them back to the committee.

In that respect Mr. Sourwine was acting just like Mr. Brick and as to that allegation the takeover of this Court held in Dembrowski that there was absolute speech or debate clause immunity.

So we think ultimately then Dembrowski is a case that supports our position and indeed is probably our strongest precedent, but that is the reason for it.

William H. Rehnquist:

Mr. Easterbrook to use the pylons of the law review, is it not there a certain tension between the holding liable of Sourwine and Dembrowski and the Gravel case?

Frank H. Easterbrook:

I think there is, the dissenters in the Gravel case said that, but I think that is the tension that may persist.

Byron R. White:

On the other hand Gravel said that neither the Senators nor their aides to be immune from liability of question in such circumstances, namely it is a carry out of illegal arrest or in order to secure information themselves seize the property?

Frank H. Easterbrook:

Mr. Justice White, we acknowledge that that is what the Gravel Case said.

We think it was based on the Killborn and on the portion of Dembrowski the participation in the raid that were not protected by the clause because they were outside Congress’ Article I power.

To the extent it had any broader meaning we think that language is simply inconsistent with this Court’s subsequent holding in the Eastland against Servicemen’s Fund, and therefore, we would rely on Eastland rather on a dicta in that case.

John Paul Stevens:

Mr. Easterbrook before you sit down, I am not quite clear on what he government’s position is on whether we should decide whether these complaints stated claim for relief against a different defendant?

Frank H. Easterbrook:

We did not present that question in the certiorari petition.

We do not believe that this Court needs to decide it.

John Paul Stevens:

You do not rely, in other words you do not rely at all on the arguments you may raise below that the claim complaints are in any event insufficient?

Frank H. Easterbrook:

We simply do not rely on the main arguments made by Judge Wilkie.

Warren E. Burger:

Mr. Easterbrook we will allow you five minutes for rebuttal later.

We will enlarge your friend’s time now for the same amount.

Frank H. Easterbrook:

Thank you Mr. Chief Justice.

Warren E. Burger:

Mr. Stavis, you may proceed whenever you are ready.

Morton Stavis:

Thank you very much Mr. Chief Justice and members of the Court.

I believe that the reason why the interrogation of Mr. Easterbrook has developed as it did and why the government had to respond to some of the questions as it did is because in fact the government in its petition and its brief has staked out a rather extreme position and seeks an interpretation of the speech and debate clause which is highly unacceptable.

But surprisingly the government as it developed its position takes no account to the fact that this tension, to use the word of Mr. Rehnquist, between the problems of protecting congressional independence while at the same time avoiding abuse is a problem which is a thoroughly familiar problem, in English constitutional history and it has a problem which this which this Court has dealt time and time and time again.

William H. Rehnquist:

Do you agree Mr. Stavis that all we have here is the question of whether there is speech and debate clause immunity, assuming that the plaintiff complaint stated a claim for relief?

Morton Stavis:

That is the only question that the government presented in its petition.

William H. Rehnquist:

We do not pass that on whether the complaint stated a claim for relief?

Morton Stavis:

Well that is assumed.

It has not been disputed and the motion papers raise only the question of immunity.

Now, it is not as if as this problem has first come before this Court today or that the government is writing on a clean slate.

Morton Stavis:

The reality is that the Court has always understood that precisely because the speech and debate immunity is absolute, it is not to be so widely handed out.

It is limited in scope and limited to the kinds of activities that it applies to.

And in case they have to case and various language formulation what comes out is that the speech and debate clause applies to the core of legislative activity.

Congressman and Senators making speeches, voting, holding hearings, committee reports and then Servicemen’s, issuing subpoenas, but it does not apply to peripheral activities, there is a wide variety of activities that Congressman and Senators engage in, to which it simply does not apply.

And of course one of the clearest formulations of that Mr. Chief Justice was in your own opinion in the Brewster Case.

When Senator Brewster came here and said it applies to all matters that relate to legislative activity and of course the Court held that that was not the case.

Now, there was an important and rather clear line which distinguishes this case from the cases where speech and debate immunity should apply and which is rather confusingly addressed by Mr. Easterbrook when he deals with the Dembrowski Case.

As constant formulation it says that in the Dembrowski case this Court approved the takeover of documents, but that was pursuant to a subpoena.

A subpoena was served and the person who is served with the subpoena responded by delivering the documents and Court approved that process.

The critical fact here is that the action complained off occurred without benefit of any subpoena whatsoever.

Warren E. Burger:

That act specifically means what, what are you referring to?

Morton Stavis:

Well, I am talking about the taking of these papers, the reading of all of these papers, the bringing of them to Washington which is the heart of what this complaint is about.

Warren E. Burger:

Well, is it not the — what is the first act, what is the initial?

Morton Stavis:

The initial act was the receipt of the papers.

Warren E. Burger:

Receiving them from the state authority.

Morton Stavis:

Well, actually we are going down pipe flow, taking the papers from the state officials, inspecting all the papers that had been seized, doing this and bring them back to Washington knowing that plaintiffs had gone to Court to obtain a return of their papers and the Court had agreed that they were entitled to the return of their papers and had given the safekeeping order only to give the respond of the defendant there namely the Prosecuting Attorney an opportunity to appeal if he chose.

John Paul Stevens:

Mr. Stavis are you conceding when you emphasize the critical effect that if Senator McCullen had caused a subpoena to be served on Ratcliffe, the custodian of the papers and pursuant to that subpoena, they had been turned over to Brick and Brick had made 234 copies and taken it back, you would have no case?

Morton Stavis:

Well, I am not really sure of that —

John Paul Stevens:

But you said it was a critical thing?

Morton Stavis:

I know that Eastland against Servicemen is an important argument for the suggestions that you are making Mr. Justice Stevens because there the Court held in effect that when the government, when the committee issues a subpoena that that is a process that the Court will not interfere with at least in a suit against the Senator.

John Paul Stevens:

But it did not say anything about what it could do about refusing to turn the documents over and resisting a contempt citation?

Morton Stavis:

That is correct nor did it say anything as to what could be done to prevent Ratcliffe from turning over the documents by a suit against Ratcliffe which is essentially what we did after Ratcliffe was served with a subpoena.

I think it is important to understand that after the acts to which we are dealing with here, the Senator did issue a subpoena.

The subpoena was served on Ratcliffe.

We then sued Ratcliffe to prevent his complying with the subpoena and we succeeded in the Sixth Circuit so that I —

John Paul Stevens:

But the case that I am hypothesizing is the one in which perhaps you did not find out about the subpoena because the Senator just signed a subpoena and Brick took it down to Ratcliffe and said turnover the documents and be done so.

Would you concede that that immunity would apply that is what I am —

Morton Stavis:

I am not so sure where it had been done in a manner, so that we were kept unaware of it.

Fortunately, in this case when Ratcliffe was served with a subpoena, we, the McSurelys were —

John Paul Stevens:

But then you are making up to a position that the subpoena is critical?

Morton Stavis:

No I am not sir, if I may suggest.

I am simply saying that where there is no subpoena there can be no argument about it.

Where there is a subpoena, I think the problem becomes a little bit more difficult.

I think that Servicemen’s Funds left open the possibility that the Servicemen’s fund could have sued the bank to have enjoined them from responding to the subpoena.

Now, you are putting me a question of what would happen —

John Paul Stevens:

First of all we are just concerned here with the liability of the Senator and his aides, not with what could have been done by way of (Voice Overlap) and as you know sometimes committees proceed by subpoena, sometimes they write a formal letter.

The Chairman write a letter to Mr. Ratcliffe and say we like to see these documents and say armed with such a letter if Brick had gone down would he be just as been in a stronger position as if he had a subpoena?

Morton Stavis:

That might not be very much different from a subpoena.

The thing that I am driving at is that the process of the subpoena at least gives you a basis for litigating —

John Paul Stevens:

If you know about it?

Morton Stavis:

If you know about it.

Look Mr. Brick, in Servicemen’s Fund, they might as just go into the bank and ask to see the records and we do not know anything about it then I think there is another question as to whether or not the taking of those records constitutes some kind of an invasion of rights where the Fourth Amendment or Privacy Rights, whatever it is and I am not prepared to answer that question.

I am prepared, however, to say that where there is no subpoena, where there is no process at all, and a congressional employee or a Congressman or a Senator just proceeds on his own allegedly to engage of investigative activities then you get exactly the kind of questions that were put by Mr. Justice Stewart and some of the others.

John Paul Stevens:

So your submission must be that unless you are going to talk about — unless you are talking about a committee hearing or a subpoena just to investigation generally in the field just is not an essential part of the legislative process?

Morton Stavis:

That is right.

John Paul Stevens:

Because you must say that just field investigators must obey the law whether it is the law of trespass or it is the law of the constitution?

Morton Stavis:

That is correct and that comes out of the recognition of this Court from the beginning that you have to circumscribe the space in the back room.

John Paul Stevens:

It is like the FBI doing whatever the prosecutors asked him to do?

Morton Stavis:

Same problem.

Unless you circumscribe the areas of activity to which you are for immunity you build up a rather large number of people who have the power to snoop around and break the law engaged in a wide range of activities and just reflect for a moment as to what might even happen if some employee of the Senate Judiciary Committee or the House Judiciary Committee might decide to break into the homes of some judges.

William H. Rehnquist:

Do you distinguish all between Senator McCullen in here and the aides?

Morton Stavis:

Not at all, not since the Gravel Case.

I think the Gravel Case made it clear that they were both on the same footing.

Mr. Stavis, if you are right that the immunity that stems from the speech and debate clause is applicable only when there has been no violation of law state or federal then it is a meaningless immunity, you do not need it?

Morton Stavis:

That is not the position.

William H. Rehnquist:

I thought it was, in your answer to my brother White I thought that was precisely what you said?

Byron R. White:

I thought you just said that investigation is not within the legislative immunity —

Morton Stavis:

That is the point and the point that I am making is not that the immunity applies only to lawful acts.

The point that I am making is that the immunity does not apply to mere general investigatory acts.

That is the point that I am making that you have to define the nature of the activities that we are dealing with and if we are dealing with general investigatory conduct, the general investigatory conduct does not carry with it an immunity and I am distinguishing there of what may happen if you have a subpoena.

William H. Rehnquist:

Then how can you separate the claim for relief from the absolute immunity or the way you and your opponent and everybody in the Court of Appeals purported to do?

Morton Stavis:

I do not think it was quite separated as Your Honor suggests.

Judge Wilkie’s analysis was that he recognized with Judge Leventhal that the speech and debate clause immunity would not apply to unlawful acts and he then proceeded to analyze it and say was there an unlawful committed, he decided that there was not.

The government does not press that position.

William H. Rehnquist:

Judge Leventhal too though discussed it?

Morton Stavis:

That is right.

That is not the analytical approach that we have taken.

The analytical approach that we have taken is that you have to look at the character of the activity to which an effort is being made to immunize it and see whether that activity is at the core of legislative activity.

I suppose a Senator can get up on the floor of the Senate and make a speech and say anything, anything on the floor of the senate, possibly even giving out —

What was said in Gravel who claimed that Gravel, the Senator committed a crime in releasing materials and he was immune?

Morton Stavis:

That is right, in the committee hearing that is the point.

If it is making a speech on the floor, conducting himself in a committee hearing, I suppose he cannot be committing a criminal act or he cannot be held of a criminal act nor for civil liability.

I do not think there is any question about that and it is again is precisely because that is a rather extreme immunity, quite an extreme immunity that the Court has been very careful to say only for that, but not for other things, perfect good examples, Killborn v. Thompson.

You have got immunity for voting on the resolution which ordered the sergeant at arms to arrest this man.

John Paul Stevens:

I suppose what would you say if the Senator received a stolen property that was very relevant he thought to his investigation.

I suppose it is just the possession of it would not make him criminally liable?

Morton Stavis:

I would think it would.

John Paul Stevens:

Why was that?

Morton Stavis:

Because I do not think that the receipt of property is essential to the legislative process.

John Paul Stevens:

But it was evidence, it is evidence.

Well, say it is a writing that is very relevant to the legislative process and he received it.

The only thing it was a stolen?

Morton Stavis:

I would argue that no matter how relevant that the process of receiving evidence and that is the point that I am trying to make clear as distinguished from having you pour it out at a hearing.

John Paul Stevens:

If a Senator subpoenaed some writings in the hands of somebody and they just happen to be stolen and they produce them would the receipt of them be?

Morton Stavis:

Not if it was done in response to a subpoena.

I think there is a point at which you have to draw some kind of a line to protect the committee processes by subpoena.

Warren E. Burger:

What about the letter to Mr. Justice Stevens mentioned that is frequently the event that triggers turning over material.

Would the letter have the same status as the subpoena or the purposes of speech or debate clause?

Morton Stavis:

I would think not.

Warren E. Burger:

Why not?

Morton Stavis:

The reason is that at least by a subpoena.

At least a subpoena is a matter of legislative authority.

A senator does not —

Warren E. Burger:

A letter of that kind coming from a committee is merely a polite subpoena, is it not?

Morton Stavis:

It may not be.

It may very well be that the committee does not have the power of subpoena in a particular case.

A Senator or that is only by resolution.

Warren E. Burger:

What if the committee issues a subpoena and is that subject to a challenge as being unlawful?

Morton Stavis:

I believe it is.

Warren E. Burger:

Even if the committee has authorized resolutions?

Morton Stavis:

There had been infinite number of cases before this Court where the validity of a subpoena has been subject to question.

An individual obviously can refuse to comply with the subpoena and then can litigate its validity.

A third party can do so too.

In this case, we sued the third party to prevent his complying with the subpoena.

Warren E. Burger:

Suppose the gentlemen down in Kentucky instead of handing this material to Mr. Brick, had wrapped it up in a package and mailed it to the chairman of the committee in Washington and he received it and opened it up and did all the other things, what would you say about that?

Morton Stavis:

Two questions that are raised by that, one, was it an unlawful act to hold onto that material once it was realized how this material had been obtained.

That is a question as to whether or not that was an unlawful act.

The second question is —

Warren E. Burger:

You would not suggest it is an unlawful act to open your mail?

Morton Stavis:

No, but it might very well be an unlawful act to hold onto material which you knew that you were in no way entitled to which is a different question which is what actually happened here, but the second question, is the receipt of that material and that is the critical question that you are putting, is the mere receipt of that material subject to immunity?

Warren E. Burger:

Is it any different whether it is received by the senator or one of the staff?

Morton Stavis:

No, as I suggested, not in the light of Gravel and since Gravel, we cannot distinguish between the two, but again I am suggesting that the receipt of material as part of a committee investigator function is not at the core of legislative activity —

Thurgood Marshall:

I am worried about the core.

We say it has to be the Court, are we amending the Constitution?

Morton Stavis:

No, quite the contrary

Thurgood Marshall:

Because — what is the meaning of core?

Morton Stavis:

Well, I think that the cases —

Thurgood Marshall:

Do you and I agree as to what the core issue is?

Morton Stavis:

I think we can, I think we can agree.

Thurgood Marshall:

I doubt it.[Laughter]

Morton Stavis:

Well, let me suggest, let me suggest —

Thurgood Marshall:

You know why, we are both lawyers.[Laughter]

Morton Stavis:

Let me make a reasonable try at it, Mr. Justice Marshall.

The language of the Constitution of course is only speech and debate.

Now, the cases have held that it goes beyond speech and debate, that it includes voting, it includes holding hearings, it includes issuance of subpoenas.

I think we are quite able to develop a core of activities from the cases that have been decided and those are the kinds of things that have been decided upon.

Issuance of reports by committees is another one, but no case has held that it includes unlawful investigative activity.

In view of the argument that is made, that the lawfulness or non lawfulness cannot be the test of whether or not immunity applies, we must conclude that no case is held that it includes investigative activity generally of an undefined nature other than —

Thurgood Marshall:

Who will decide whether it is investigative or not?

You got core and now we have got investigative, we will have 18 more by the time you are through.

Morton Stavis:

Well that is what I do not have to decide, but that is what these people constantly claim.

Thurgood Marshall:

We have to decide it?

Morton Stavis:

That is right.

Thurgood Marshall:

That is why you want to hand it over. [Laughter]

We are all wrapped in a tight little ball named the core.

Morton Stavis:

Well, it is the best word that I am able to find to try and to define what I think is the range of activities that the Court has said are included within the kinds of legislative conduct for which congressmen and senators are entitled to immunity.

Now, it clearly does not include distribution of reports.

That is the essence of Doe against McMillan.

It clearly does not include impressing a constituent’s position on the administrative agency.

That is United States against Johnson.

It certainly does not include taking money in one form or another, that is United States against Brewster.

The Court has been trying to do its best to develop the meaning of the term core and I think that that the Court has said in Dembrowski, in Gravel, and it has said in both those cases that it does not include general investigatory activities.

I think it is extremely important that I point out that what Mr. Easterbrook said about Dembrowski is simply in conflict with the record.

Mr. Easterbrook said that the Dembrowski case is different from this because there, all that Mr. Sourwine was trying to do was to help out the state officials of Louisiana while they made their raid and he was acting not to assist in a Senate investigation, but to assist in enforcement of state law.

William H. Rehnquist:

But you say since Gravel, you can no longer distinguish between the senator and his aide?

Morton Stavis:

That is right.

William H. Rehnquist:

So should not Dembrowski against Eastland, should not either of Senator Eastland not have been held liable or Sourwine have gotten off?

Morton Stavis:

No, the issue in Dembrowski against Sourwine which is again very different from this case, was that there, the defendants made a motion for summary judgment on the ground that there was no substantial issue or fact and there, Senator Eastland supported his position with seven affidavits which said I had nothing to do with this whatsoever and the Court accepted that position and agreed that on the motion for summary judgment, of course, there was no substantial issue of fact, there was no basis for holding the senator in.

William H. Rehnquist:

Then you say that Dembrowski against Eastland did not even involve speech and debate clause immunity?

Morton Stavis:

No sir.

Morton Stavis:

It did involve a claim of speech or debate immunity, but the senator said I was no involved.

William H. Rehnquist:

So it did not turn on the speech or debate clause immunity?

If he was not involved, he does not need speech and debate —

Morton Stavis:

It did as to Sourwine because as to Sourwine, he argued speech and debate immunity, but the Court found that there was a trivial issue of fact and that that speech and debate immunity would not protect him.

He lost on the next —

Morton Stavis:

That is right.

It would not protect him from the kind of conduct in which he engaged.

William H. Rehnquist:

And after Gravel, it would not protect Eastland either?

Morton Stavis:

That is right if there were any basis for holding Eastland in, but Eastland was not held in on a factual consideration.

In Dembrowski, in the long run, Sourwine was on his own, he had not been ordered to do it or authorized to do anything here?

Morton Stavis:

That is right but he still claimed speech or debate immunity and the Court held speech or debate immunity did not extend to the kind of conduct charged him.

John Paul Stevens:

But after Gravel, if the senator had done what Sourwine had done…

Morton Stavis:

He would be in the sour.

I do not think there is any question about it after Gravel, but the point that I was pressing on Dembrowski because I really think it is the critical case here, it is the case in which this all turns, is that the government wants to get away from Dembrowski by saying that they were not performing a senate legislative purpose, they were just helping out their colleagues in Louisiana.

I am simply saying that that is directly contrary to what the government said in its briefs in Dembrowski where it insisted that Sourwine was carrying out an important legislative purpose and cited all the resolutions that he was supposedly investigating for and the government in Sourwine insisted that that was what he was doing.

This Court in Gravel when it referred to the Dembrowski case, said specifically that he was searching, seizing material in preparation for a senate committee hearing.

So Dembrowski is of no force with this case contrary to what Mr. Easterbrook had said and Dembrowski holds that kind of activity just is not under the speech or debate clause.

Warren E. Burger:

I suppose when Mr. Brick was in the motel room and the local prosecutor brought the papers over to him, Mr. Brick had with him a newspaper reporter he brought along from Washington or New York or someone.

Now of course, the Fourth Amendment does not inhibit that second man.

Would his act in receiving those be an unlawful act?

Morton Stavis:

These newspaper reporters, it might very well be.

The papers after all have been unlawfully seized.

Warren E. Burger:

You said it is an unlawful act for Mr. Brick to receive them?

Morton Stavis:

Mr. Brick is certainly subject to the constitution.

He is a federal employee.

Warren E. Burger:

I am not talking about the constitutional violation.

I am talking about what you were referring to an unlawful act under state law in the early part of your argument I think?

Morton Stavis:

I did not think I was, but the point is that if the documents have been unlawfully seized and a newspaper reporter takes custody of these documents, there may very well be a violation of local state law because the documents were in effect were stolen.

Now, but that is not the Fourth Amendment issue to which we are referring.

Obviously, the Fourth Amendment does not apply to a private person, but Mr. Brick was not a private person and the Fourth Amendment does apply to him.

Morton Stavis:

I do not think there is any question with respect to that.

In any event it is conceded at least for the purposes of this argument by the government that there was a Fourth Amendment violation here.

Morton Stavis:

That is correct.

It is conceded that there was a Fourth Amendment violation.

What (Voice Overlap) this argument?

John Paul Stevens:

Mr. Stavis, let me interrupt with something that — I am not sure, maybe you have argued it, but I missed it if you have.

In the Gravel case, the Court held that the aide, Rodberg I guess his name was could be examined by the grand jury about the source of the Pentagon papers.

Morton Stavis:

That is correct.

John Paul Stevens:

Was that not a holding and that I would assume would be information gathering activity by the senator and you have not argued, but why is that not a square holding that information gathering is not a legislative act and I ask you that because I hope Mr. Easterbrook could give us the other side of it?

Morton Stavis:

I do argue that in our brief.

We do cite that specific holding of Gravel for that purpose.

John Paul Stevens:

Why do you need to cite anything else?

We have a got a long argument and why is that not the complete answer to the whole case?

Morton Stavis:

Well, I –[Laughter]

John Paul Stevens:

If it said so clear, it is strange to me that you have given such little emphasis, that is why I am uncertain about it?

Morton Stavis:

The reason that I have given more emphasis on Dembrowski against Eastland is because it is a closer case to this in terms of the facts.

As far as I know, the story of Dembrowski against Eastland which is a Mississippi story and the story here are the only cases that I know of where a senate committee or any congressional committee undertook to engage in the kind of activities that were engaged in here which was effectively to take over documents —

John Paul Stevens:

Again Mr. Stavis, that only is relevant if the legality or the illegality of the conduct is material and in an immunity case, it seems to me we have got to assume there is an illegality.

It is the nature of the activity that must determine whether the clause applies and your argument seems to me it should be that information gathering is not a legislative act?

Byron R. White:

That is what you argued earlier to some extent?

Morton Stavis:

I think I did.

The only thing I did not do is cite the Gravel case.

John Paul Stevens:

It is the only case that I know of that deals with your question.

Morton Stavis:

Dembrowski against Eastland too, Mr. Justice Stevens.

It does really because that was also information gathering activity.

William H. Rehnquist:

Mr. Stavis, when you are talking about the core of legislative activity, is there some difference between the actions of a committee chairman acting on behalf of a committee and a single senator acting by himself?

Morton Stavis:

I would not think so in terms of the application of the speech and debate clause.

I do not think that a committee chairman acquires any more immunity than an ordinary senator.

William H. Rehnquist:

Yet, certainly the House and Senate act much more through committees than they do, I mean, they play — committees play an important role apart from the votes of the members on the bills before it?

Morton Stavis:

There is not any doubt that that is the case, but I do not think that there is a distinction in the extent of immunity.

Morton Stavis:

All we are dealing with here really, the only real question, Mr. Justice Rehnquist is what kinds of activities does the immunity apply to?

William H. Rehnquist:

Well, that is exactly why I asked you that question.

Morton Stavis:

It may very well be that a chairman of a committee engages in more committee activities than a garden variety senator and to that extent, he would be more involved with questions of immunity in connection with senate committee activities, but it is not a greater immunity.

That is all I am saying.

Having said this, this immunity is complete if it applies and that is why the Court has been so cheery about what it is permitted to apply to and I agree that Gravel is dispositive and with that I would like to conclude my argument unless there is any further question.

Warren E. Burger:

We will resume at 1:00 for Mr. Easterbrook’s rebuttal.[Recess]

Mr. Easterbrook?

Frank H. Easterbrook:

Mr. Chief Justice and may it please the Court.

The primary point of respondents during oral argument was that whatever may be the case for situations in which a subpoena has been issued, Congress has no general investigative authority.

We believe that that distinction is incorrect.

Byron R. White:

You mean investigative authority that is within the —

Frank H. Easterbrook:

Within the power of Article 1.

Byron R. White:

Well, that is within the speech or debate.

Potter Stewart:

Within the immunity of the speech or debate clause.

Frank H. Easterbrook:

We think the two are the same.

Potter Stewart:

But his argument was the —

Frank H. Easterbrook:

Let me start with the premise that this Court started with in Servicemen’s Fund which is that Congress must have the power to investigate or it would be unable intelligently to pass legislation.

If it cannot find out the facts, it simply cannot know how best to regulate the affairs of the nation.

So the fact finding process is essential to the functions of Congress.

Their work simply cannot go on without it and that was the foundation for this Court’s holding in Servicemen’s Fund, that the speech or debate clause provides absolute immunity for the issuance of a subpoena.

Warren E. Burger:

Do you understand Mr. Stavis as challenging, his saying that there is no investigatory power?

Frank H. Easterbrook:

Mr. Stavis seems to contend I think that there is no informal investigatory power.

It is only when done pursuant to a subpoena at a hearing.

We believe that that cannot be correct.

The purpose of a subpoena is to provide compulsory process for Congress.

That is it compels someone to respond in a particular way on pane of law for disobedience, but it would be very odd we think to say that Congress has the power within the scope of the speech or debate clause to obtain information only when it finds it necessary to compel that information from the hands of persons who may be unwilling to supply it.

It may be just as appropriate and certainly as much within the legislative power to obtain information from persons who are willing suppliers of information whether that information is necessary for legislating or whether that information proves to be necessary on which to issue a subpoena, that is the kind of thing that happened here.

There was not need to compel the documents from the hands of Ratcliffe.

Ratcliffe was willing to supply them.

We think it would be an inversion of the proper ordering of interests to say that the speech or debate clause provides immunity, only when Congress found it necessary to use compulsion.

Frank H. Easterbrook:

But more than that the question whether to use compulsory process or to use some more informal method is fundamentally within the discretion of Congress.

To say that only a subpoena is within the scope of protection essentially tells Congress how to go about its information gathering function, a function, an essential one, that this Court has held that it has.

Ultimately, the harm to persons like respondents is the same whether the information is secured by subpoena or by simple oral request.

Byron R. White:

Would you think if materials are subpoenaed and the person does not respond, he is entitled to litigate whether Congress may secure the documents or not?

Frank H. Easterbrook:

Mr. Justice White, the Court has held that in response to a contempt citation, he can litigate whether that was within the authority of Congress.

Byron R. White:

The Court sit on that sort of proceeding?

Frank H. Easterbrook:

Yes Your Honor they do —

Byron R. White:

You must suggest to Congress that perhaps some of the subpoenas are good and some are not?

Frank H. Easterbrook:

Yes, In much the same way, some of Congress’ statutes are good and some are not as this Court sits deciding whether statutes that are passed were constitutional within their power, but that does not mean that the process of getting to the statute is defective in any way.

John Paul Stevens:

If you are right as I understand it, whenever somebody did not comply with the subpoena, the congressional committee could just send some police officers with a guns and break into the house and get the information?

Frank H. Easterbrook:

I have two answers to that.

It raises once more the discussion I had in response to Mr. Justice Stewart’s question and about the question whether Article 1 provides to Congress the power to take things by force.

But the second answer is that there is also a problem of distinguishing between what it should do and what the remedy is for it not doing that.

We may assume that Congress should not send someone to take it by force, that it is wrong for Congress to do that.

John Paul Stevens:

You mean just illegally, not just by force?

Frank H. Easterbrook:

Illegally or by force, but I am willing to accept by force here.

We may assume that it is wrong for Congress to do that.

John Paul Stevens:

And you are willing to accept illegally?

Frank H. Easterbrook:

Yes, but our response is that the remedy lies in Congress’ discipline of its own members and in the public’s discipline of Congress rather than in discipline by the judicial branch of Congress’ errors.

That ultimately is our position.

I would like to address for a moment Mr. Justice Stevens, your question about the Gravel case, about the source of the documents.

It is true that the legislative aide in Gravel could be questioned about the source of the documents.

We think that is so for the same reason the Court held that the publication of the Pentagon papers was no privileged.

That is the essential holding of that case is generating publicity for its own sake is not something that is within Congress’ powers under Article 1.

Therefore, the obtaining of that document for that purpose was not a legislative act, and therefore, the immunity did not apply, but in this case, it is clear that Brick was attempting to gather information for the purpose of legislation so that his activities are a legislative act and this is therefore quite a different case from Gravel.

Warren E. Burger:

If we were to hold and conclude that there was not Fourth Amendment violation here, what would be the consequence on the case?

Frank H. Easterbrook:

Mr. Chief Justice if there were no Fourth Amendment violation, the judgment of the Court of Appeals should be reversed and the complaint dismissed although we have not raised that issue which was the subject of Judge Wilkie’s opinion.

Lewis F. Powell, Jr.:

If we should disagree with your principle argument, what issue if any would remain for us to address?

Frank H. Easterbrook:

Mr. Justice Powell, we have raised a subsidiary argument about vicarious liability that we believe you can accept without addressing our principle argument.

Our argument about vicarious liability is that —

Lewis F. Powell, Jr.:

I am not suggesting you go into it.

I just want to be sure you have not waived it?

Frank H. Easterbrook:

We have not waived it.

We believe very firmly that it is correct.

I just did not have time to cover it.

We argued it in our brief and we continue to argue it here.

John Paul Stevens:

So you are not pressing the position of the four and the Court of Appeals, the five?

Frank H. Easterbrook:

We are not.

Mr. Easterbrook are any of these defendants still living?

Frank H. Easterbrook:

One of the defendants, Donald F. O’Donnell who was the chief counsel of the subcommittee is still living.

The other three defendants are deceased.

Both the senator is deceased and…

Frank H. Easterbrook:

Mr. Alderman died in 1975 and Mr. Brick, the investigator died in 1973.

What part allegedly did the only living defendant play into this?

Frank H. Easterbrook:

He was alleged to have participated in a conspiracy with the other defendants to carry out these acts, the complaint and the affidavits of the respondents are completely nonspecific on that question.

We simply do not know what role he played.

Warren E. Burger:

He was not on the ground was he at the time and place of the delivery?

Frank H. Easterbrook:

He was not in Kentucky at any point.

One of our principle arguments in respect to him is the argument about vicarious liability.

He is simply being asked to answer for the misdeeds of Brick assuming that Brick had any misdeeds.

I suppose we do not have a course here in the issue of the survival of these actions?

Frank H. Easterbrook:

We do not.

The Court of Appeals reserved decision on that question and essentially asked the District Court —

But is has occurred to me that you may be asking us to decide an academic question, if these actions do not survive?

Frank H. Easterbrook:

If they do not survive, the question that remains open it would be an academic question.

In the Court of Appeals, after the deaths, the Court of Appeals asked the United States for its views and we conceded that as a matter law, the actions survive the deaths.

We have since argued that although they survived, it was necessary for the McSurelys to attempt to substitute the estates of the survivors.

The McSurelys did not do so until August 1977.

We have argued that that caused the actions to abate.

William H. Rehnquist:

When you concede something, is personal liability against some of the petitioners being sought which would not be indemnified by the government?

Frank H. Easterbrook:

I believe it would require a private bill to indemnify for these cases Your Honor.

William H. Rehnquist:

You have applied yourself in any sort of a conflict position then when you concede that an action survived?

Frank H. Easterbrook:

We consulted with our clients before making our concession.

In other words, Mrs. McCullen or at least derivatively she, the estate of the senator, she or whoever the beneficiaries are of that estate and you have considered would be liable?

Frank H. Easterbrook:

Your Honor, we conceded that in behalf of the estates of Alderman and O’Donnell.

After Senator McCullen died, we consulted with his estate and his estate asked us to reserve that point on his behalf and in our motion to substitute the estate for the senator to be explicitly reserved at that point and we believe that it is open for further litigation in lower Courts if that should prove necessary, but there is one very live defendant still.

Yes, but his liability if any is asserted on quite a different ground, is it not?

Frank H. Easterbrook:

It is asserted on the general ground of conspiracy with the others and we believe it is asserted on the same ground as to him as it is asserted with respect to Senator McCullen.

But not with respect to the —

Frank H. Easterbrook:

Brick’s liability to stand on a different — yes, Your Honor.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.