Rabinowitz v. Kennedy

PETITIONER:Rabinowitz
RESPONDENT:Kennedy
LOCATION:Alabama State Capitol

DOCKET NO.: 287
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 376 US 605 (1964)
ARGUED: Mar 02, 1964
DECIDED: Mar 30, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – March 02, 1964 in Rabinowitz v. Kennedy

Earl Warren:

Number 287, Victor Rabinowitz et al., Petitioners, versus Robert F. Kennedy, Attorney General of the United States.

Mr. Rein, you may proceed.

David Rein:

Mr. Chief Justice and may it please the Court.

Petitioners here are members of the bar of the State of New York, engaged in the general practice of law under the firm name of Rabinowitz and Boudin.

Since this case is here, on a motion for judgment of the pleadings, the facts are — is set forth on the complaint, and I will just briefly state what the complaint said with regard to the matter in controversy.

According to the allegations of the compliant, petitioners were retained on or about September 10th of 1960, by the Republic of Cuba to represent that Government in purely mercantile and financial matters.

The retainer does not cover advice and representation involving public relations, propaganda, lobbying, or political or any other non-legal matters.

And the petitioners have not in fact represented the Republic of Cuba in any respect other than in mercantile and financial matters.

In August of 1961, of the respondent, the Attorney General here demanded that petitioners register with him in accordance with the provisions of the Foreign Agents Registration Act of 1938.

Petitioners came down to Washington and discussed the matter with the representatives and subordinates of the Attorney General and they maintained that their representation of the Republic of Cuba did not fall within the purview of the Act.

And that as a matter of fact; they were expressly exempted from the Act by the provisions of simply Section 3 (d) which exempt individuals who engage in purely mercantile and financial matters.

The respondent nevertheless insisted and proudly continues to insist the petitioners register.

Is there any dispute if it returned to the retainer or registry?

David Rein:

There is no dispute at all on this compliant and this set of facts.

Let me say, the Government in their answer said as follows with regard to the nature of the retainer.

They admitted the allegations of the compliant and then they went on to say, “They did not have any sufficient information and belief to determine whether there was anything more.”

But they have never alleged that there was anything more.

They simply say that, “Maybe there is, we don’t know.”

But in the discussions that we had with the Attorney General, he did not say that they had to register because they represented the Republic of Cuba or in any way other than as alleged in the complaint.

But the purposes of this case were to take it if it’s just a straightforward (Inaudible)?

David Rein:

That’s right.

There is no —

(Inaudible)

David Rein:

There is no other issue raised here by the pleadings and as I understand it, there is no issue raised by the Attorney General even outside the pleadings except apparently to say that he doesn’t know anything more, though he has full knowledge really of the — I can state, he obviously does have full knowledge of the appearances which the petitioners have made upon by — for the other Republic of Cuba.

Byron R. White:

Well Mr. — Mr. Rein, is this — when — when you say retainer, is this an on-going arrangement involving periodic payments or is it solely a piece work undertaking?

David Rein:

I understand it’s a continuing arrangement.

Byron R. White:

So that — so that periodically, there would be some retainer paid somewhat related to the work done I suppose, but —

David Rein:

The pleadings don’t state the nature of the financial payments.

Byron R. White:

Well I don’t —

David Rein:

Not (Voice Overlap) —

Byron R. White:

I’m really not interested in that.

David Rein:

It is a general —

Byron R. White:

I mean —

David Rein:

It is a general —

Byron R. White:

Yes.

David Rein:

It’s a general retainer for — for the — the legal matters.

In other words —

Byron R. White:

It’s not just that if — if your clients’ client has a — had the case here or some — some legal matters that it brings out to your client from to time to time as they come up but it’s just — but it’s — it’s really an honest — an honest on-going retainer.

David Rein:

Well, let’s put it this way.

I think they would bring all legal matters to the client as they come up, but the nature of the retainer and the nature of the relationship has been that there are continuous matters and they have been continually engaged in litigation on behalf of their clients.

Now, I don’t — was that answers the question?

William O. Douglas:

(Inaudible) as we think of that.

David Rein:

Yes, it is.

William O. Douglas:

But your — your exemption runs only to — I’m reading at the bottom of page 57, subsection (d).

To those in private and non-political financial or mercantile activity, that isn’t so like a lawyer.

David Rein:

Well, they represent the Republic of Cuba as their lawyer in matters involving money.

I — I think it’s what it comes down to and that’s — that’s how they have represented.

I think the character of the representation is best illustrated —

Byron R. White:

Yes, the —

David Rein:

— by the case in which they appeared.

Byron R. White:

Or filing.

David Rein:

Or filing?

Byron R. White:

Many who aren’t filing?

David Rein:

Filings?

I’m sorry I don’t get —

Byron R. White:

Well, like in this case.

David Rein:

Well, I represent —

Byron R. White:

This case involved money.

David Rein:

Well, I don’t — I represent Rabinowitz and Boudin here and they’re not here as — hearing on behalf of the Republic of Cuba.

I’d also consider the Republic of Cuba is a party to this case.

William O. Douglas:

(Inaudible) 56 includes, expressly includes attorney for a foreign principal.

That’s the thing that —

David Rein:

Yes.

Let me say this, so I’m giving the facts, I think both sides agree here that the issue was to whether or not the petitioners here do have to register under the Foreign Agents Registration Act.

It’s really not before the Court at this time and I’m just stating on the pleadings.

And so I don’t think it would help for the purposes of this case to go on to it any further than we have, if I may say so.

But just —

William O. Douglas:

(Inaudible) whatever they be, the merits.

David Rein:

That’s — that’s the question.

I just want to add one point on that.

The character of their relationship I think is best exemplified by their appearance here for the Republic of Cuba or in a case, which was argued before this Court this term.

I think that’s about typical of the kind of representation they have given in matters of that nature.

And it’s a case which was argued here and is pending.

(Inaudible)

David Rein:

Yes, the Sabbatino case.

And that I say demonstrates the nature of the type of representation.

At — the petitioners, after their discussion with the Attorney General, in which they came to an impasse, filed a suit in the District Court, asking for declaratory relief, declaring that their activities are — do not subject them to the requirements of registration.

They attach to the complaint and I think it’s important to consider here the nature of the interest.

As exhibits, the registration forms which had been adopted by the Attorney General and which petitioners would be required to complete if they were required to register under the Act.

And this form would require petitioners to disclose all of their businesses, occupations and public activities without regard to any relationship of these activities to their representation of the Republic of Cuba.

They would be required to list all of their other law clients or any other outside activities which they may have outside their law business, and all talks, pictures, radio broadcasts which they may have made or articles or books which they may have written.

The form would also require them to list all of their stockholdings on any pecuniary interest they may have in any other corporations or any other business enterprise.

Again, without regard to any relationship, these other business enterprises might have with their representation of their foreign principal, the Republic of Cuba.

In addition, the complaint alleges that because of the nature of their retainer, our counsel find it necessary to bring litigation in courts throughout the country and that in this connection, they find it necessary to retain associate counsel.

And attached to the complaint is another form of the Attorney General which the Attorney General would require all associate counsel to complete, and this form would require anybody who is associated even in a individual case for the petitioners.

They would have to disclose all visits to or residences in foreign countries within the past five years or club, societies, committees or other non-business organizations of the United States or elsewhere, of which they had been members, directors or — and so forth.

Then also all books, magazines, articles, pictures which the associate counsel may have made.

And the complaint alleges, and I think it’s clear that this burden put upon associate counsel would make it extremely difficult for petitioners here to retain associate counsel in many cases.

Associate counsel maybe willing to commit to a case but not at the price of such a disclosure, an invasion to their privacy, and they alleged that — I’m sorry.

(Inaudible)

David Rein:

As requiring?

I will get to that later.

I would like to argue that it’s unconstitutional at a certain respect, in respect to vagueness.

I do not argue that if Congress had required lawyers engaged in the financial and mercantile matters to register for foreign principals, that Congress does not have their power.

I do not maintain that.

I would say a question would be raised, which I think isn’t raised here, as to whether if Congress had required people in the position of the petitioners here to register whether the Attorney General could ask him the cause of that registration, the kind of questions and information that he does ask which seemingly are all slanted toward what the statute does really require that is people who engaged in propaganda activities —

Earl Warren:

(Inaudible)

David Rein:

— and that —

Earl Warren:

(Inaudible)

David Rein:

As one of the question beyond that, no.

I haven’t presented that at all in the brief, as to whether the questions go beyond a reasonable regulation.

Earl Warren:

(Inaudible) that the Attorney General has gone beyond the provisions of the Act —

David Rein:

That’s correct.

Earl Warren:

— in requiring this questionnaire.

David Rein:

Well, he’s gone beyond the provisions of the Act in asking these petitioners to register?

Earl Warren:

Yes, but (Voice Overlap) —

David Rein:

They are expressly exempt.

Earl Warren:

— in asking anyone — anyone these questions.

David Rein:

No, no.

Earl Warren:

It’s only — only because of what you claim your particular employment is that he has no right to ask you all these questions.

David Rein:

Well, I think, when we go beyond that.

We say he has no right to require them to register at all.

Earl Warren:

Register at all, I see.

David Rein:

And we point this out as showing the injury, if I may say so, to the petitioners to be required to register when there is no requirement at all to say that the registration would be a gross invasion of their privacy —

Earl Warren:

No.

David Rein:

— because of what is asked to them.

And we do point out arguing and it would come to the question of the application of the Act, that the kind of things that the Attorney General ask people to answer do make sense when applied to foreign propaganda agents which is what the Act was intended to cover.

They make absolutely no sense when applied to petitioners but we say —

William J. Brennan, Jr.:

I — I don’t follow this Mr. Rein.

If you’re not covered by the Act, why isn’t all the rest of it wholly irrelevant?

William J. Brennan, Jr.:

As I understand you, all this business of what they’ve had to answer if they were required to answer —

David Rein:

We say it is —

William J. Brennan, Jr.:

— doesn’t bear on whether they’re required to register, does it?

David Rein:

We say it’s wholly irrelevant except in connection with showing why we have a right to bring declaratory judgment action and why we’re entitled to declaratory relief.

William J. Brennan, Jr.:

Will you have to prove injury before you may do that?

David Rein:

Well, apparently we have to show that registering would injure us in some way.

We have a legal interest to protect, yes.

I think we do and that’s the substance of it.

Now, if the Court says we can bring an action for declaratory judgment relief without showing that there’s a gross invasion of our privacy, I’m certainly willing to go along with that.

I think if I — I put this in to show the burden that we do have to make, that we do have a legal interest to protect here and that is the legal interest of the right of privacy.

William J. Brennan, Jr.:

(Voice Overlap) — what case in this Court led you to think you might have to prove injury before you could maintain an action for declaratory judgment?

David Rein:

Oh, I would say that’s just on general — general equitable principles that in order to come in and ask the Court for relief, you have to show that you’ve been injured in some way.

I — I don’t know that I’d go beyond that.

But I think we’ve met it so I don’t think that’s the problem and that’s the only reason why I was going into these matters.

Arthur J. Goldberg:

(Inaudible)

David Rein:

Yes.

And we have to show that there is an interest to be protected and that I say is our interest.

After the filing of the complaint, the Government filed an answer in which as I’ve indicated, they substantially admitted all of the allegations in the pleadings.

They wanted two aspects in which they commented.

They did not have sufficient information or belief to state an answer.

But the case came before the District Court on the basis really of the allegations and the compliant.

The Government — Government moved there for a judgment on the pleadings and the District Court denied it.

The Government then applied to the District Court’s belief to bring an interlocutory appeal stating and asking the Court to certify that there was a controlling issue in this case, namely, whether or not the petitioners could bring an action for a declaratory judgment.

And under a new statute 1292 (b), the District Court certified that an interlocutory appeal could be taken on that question alone.

That question was a — here was accepted by the Court of Appeals and the Court of Appeals heard it on that question and reversed the District Court holding that the action could not be brought in a divided opinion with the dissent by Judge Fahy.

We say therefore, the case is before the Court in the present posture.

The trial court held that on the facts, and I think we must assume that on the facts set forth in the complaint, petitioners are exempt from the requirement of registration under the Act and they’re not required to register.

And the Government appealed on the ground and this is the only issue before the Court, that assuming that they are exempt and are not required to register, are they entitled to have a court declare that in this declaratory judgment proceeding?

And they raised two questions, and there are two question related with respect to that single basic issue.

One, is this an appropriate case for declaratory judgment relief and two, whether the action is an unconsented suit against the United States.

David Rein:

We submit that the same considerations really should determine the answer to both questions but I think for the purpose of orderly presentation, I wish to discuss first the question of whether this is an appropriate case for declaratory judgment relief.

We have set out at page 24 of our main brief, the leading case in this Court on declaratory judgment relief, setting out the factors that must be satisfied before a case was appropriate for declaratory judgment.

And we say and I think I want to discuss it only briefly because I don’t know if the Government disputes it seriously, that we made all of those requisites.

One, the controversy here is definite and concrete.

It is not hypothetical and abstract.

We contend that under the statute, the legal representation of a foreign government in purely financial, mercantile matters is exempt.

The Government contends on the contrary that the statutory exemption does not apply, as I understand their argument, where the foreign principal is a foreign government or at least as it seems to have modified its position in its brief here, at least where that foreign government controls the means of production in commerce within its borders.

That is the concrete legal issue posed by the pleadings and by the controversy.

The controversy again, dealing with the language of the Acme case, it touches the legal relations of parties having adverse and legal interests.

The petitioners here have a legal right not to make disclosures of their private affairs in the absence of a lawful governmental requirement that they do so.

In addition, as we have shown, the requirement of registration will interfere with their ability to — to practice law.

On the other side, if petitioners are required to register, the Attorney General, as the government official charged with the administration of the Act, he has a legal interest and a legal duty to require their registration.

The controversy is real and substantial.

The respondent here, the Attorney General has formally demanded that petitioners register.

The petitioners of — replied that they are not covered by the Act.

They have discussed the matter with them.

The matter has reached an impasse.

We have a real and actual dispute and the opposing legal views of the parties would be presented in this litigation as clearly and as sharply as they would be in any other litigation and any other forum.

In addition, the cases present no problem as it’s sometimes presented in declaratory judgment actions of — arising from a conflict between federal state relations.

This is entirely a federal matter and as a matter of fact, the same identical court would pass on this legal issue in this proceeding as it would pass upon it if it were brought up in a criminal proceeding.

Potter Stewart:

How many issue —

Earl Warren:

(Inaudible) instead of — of warning the petitioner that he intended to — to prosecute him, he — he actually did prosecute him.

Would there be any relief from that sort of declaratory judgment or — or in any other manner?

David Rein:

Fortunately, we have not been faced with that problem.

We were able to come in to Court and ask that the declaratory judgment action be declared, that our rights be declared prior to the instituting of any such action.

And I believe that — I would stretch it out here, I think we would have had a right to injunctive relief on the basis of the way the posture of the case lies.

But we don’t need to come to that.

The Attorney General, whatever reason he has, has not brought a prosecution here and our declaratory judgment action was brought first.

And I think that since we have the right to relief in the declaratory judgment action, it’s unnecessary to decide what the situation would be if he had moved first since he —

Earl Warren:

Well I — I thought you said that your — your action was premised on the fact that he — he threatened to bring the action against you.

Earl Warren:

Suppose he had not threatened, would you still be here?

David Rein:

Well, I think we have enough of a threat, let’s say without a formal saying, I will prosecute you if you don’t register.

Earl Warren:

The Act itself is enough threat?

David Rein:

No, no.

Not the Act itself.

The Act itself is not enough because under the Act, the Act has no threat at all because the Act were examined, if we read the Act.

We don’t think the Act is a threat, but we think its formal demand that we register, writing a letter and saying, “You are under the Act and you should register.”

The fact that we had a conference with him and we said, “We are not under the Act, we do not have to register.”

And he said, “I remain unconvinced by your arguments.

I say you do have to register.

That is my interpretation of the law.”

I say, beyond that, I think that’s sufficient to make the — make the controversy sharp and clear.

If then, the only step remaining was for him to bring a prosecution.

I think it was fair for the petitioners to assume that if the Attorney General believed that they were under the Act and that they didn’t register that he would prosecute because there’s no purpose in his formal demand other than that.

Now, we can’t say that he was conceivable that he might have changed his mind or he might have been bluffing, I don’t know.

But I think the issue has been sharply enough proposed to this point to permit a declaratory judgment relief.

Finally, we say, the controversy admits a specific relief through a decree of a conclusive character.

In other words, the judgment of this Court saying that the petitioners on the basis of their conceded activities either were or were not under the coverage of the Act would end this dispute in a final manner.

The Government argues nonetheless that the Court should not entertain this action and it has really two basic positions.

I think first — well, let’s say there are three grounds in which it advances.

First, it says that the scheme of the Act is such that Congress intended to make a criminal prosecution the exclusive means of testing the applicability and the coverage of the Act.

Now, the Government points to no statutory language to that effect.

The statute doesn’t say — the statute simply provides that on a failure to register, it’s a crime and the Attorney General may prosecute.

It doesn’t say that this is the sole and exclusive way in which the validity of the Act can be tested.

It doesn’t say you can’t bring a declaratory judgment action.

But the Government argues that Congress had that purpose and it argues it from the general congressional purpose underlying the statute.

And it sets out at considerable length in its brief, pages 15 to 24.

The general purpose of this Foreign Agents Registration Act and they point out quite correctly and we — we agree with them that Congress passed this Act because they wished to force those engaged in the dissemination of propaganda on behalf of the foreign principal to register so that people who read this foreign propaganda and read this propaganda would know the source.

And that these individuals would not be able to operate in secrecy.

That is to put out foreign propaganda without disclosing that you’re a — in fact, a foreign agent.

David Rein:

What is applied to this case, this argument about a denial of declaratory judgment relief because of that general theory and philosophy underlying the Act is just plain nonsense.

In the first place, petitioners here are not engaged in any propaganda or any public relations or lobbying activities.

In the second place, there’s nothing about their representation to their foreign principal which is secret.

On the contrary, they have stated not only by bringing this action but they have appeared in Court in numerous occasions as they have appeared in this Court and have stated that they represent the Republic of Cuba.

So, there’s no question here about somebody seeing propaganda or issue by the petitioners, which they don’t issue and not knowing that they — comes from them when they have not — there are no secrets about their representation of the Republic of Cuba.

We say it demonstrates quite clearly and it’s a — so the demonstration that has come out even sharp — more sharply in a recent hearings before the Senate Foreign Relations Committee which I will come to later, about considering amendments to the Act.

That the problem which gives rise to this present case and which has created the problem is the effort of the Department of Justice to apply the Act which was designed as you read the legislative history, the quotations and everything that the Government sets fort in its brief, it was of design to cover foreign propaganda agents who were secret about their connection with their foreign principal.

And the Government has now taken this statute and tried to apply it in a completely different situation, has tried to apply it to lawyers who were not engaged in propaganda and who do not conceal their activities.

And we also show that, if anything their legislative history would prove, is that the Act does not apply to the petitioners at all.

Secondly, is their second basic position, the Government argues that the complaint fails to state an equitable cause of action.

And they say that in essence, although we started a declaratory judgment action, the action would in effect, if the Court considers it, amount to a restraint on a criminal prosecution, and that equity will not ordinarily enjoin a criminal prosecution.

And again, it argues at great length matters which we do not dispute.

That is that a declaratory judgment action has to be tested by ordinary equitable principals.

We concede that, and I think the Government believe as the obvious by making such a point to that in its brief.

But we say that this case meets the ordinary equitable principles.

In the first place, to meet ordinary equitable principals, you have to show that the prosecution itself will present an irreparable injury far beyond that which is normally attached to a criminal prosecution.

Now, what are the penalties imposed here upon the petitioners if they do not register?

They’re criminally prosecuted and if they are possibly successfully convicted.

The penalties imposed by the statute are severe we point out in our brief as many of the cases in which this Court has entertained declaratory judgment actions or given injunctive relief.

Briefly, the petitioners would be punishable by a five-year prison sentence and a $10,000 fine.

And even more than that, since they are members of the bar, being convicted of a felony would be — bring about considerable damage to their reputation and quite likely disciplinary proceedings before their bar association.

Now, the Government is very sanguine about that matter.

There we fraught to the present case, this curious they say that there’s really nothing for petitioners here to worry about because this is really a test case.

They say an indictment and prosecution would not reflect on and I’m quoting now on petitioner’s honesty and integrity, “Since it would involve only the legal question whether their conceded activities as counsel for a foreign government bring them within the Act’s registration requirements.”

Potter Stewart:

Is that — is that in their brief? You’re quoting from the brief?

David Rein:

Yes, I’m quoting from their brief.

Potter Stewart:

Do you — you know, counting of the page?

David Rein:

Of their brief?

Yes, I think so.

I’ll find it a little later.

Potter Stewart:

Alright.

David Rein:

It’s in my mind, but it is — at what?

32.

Potter Stewart:

Thank you.

David Rein:

At page 32, yes.

Potter Stewart:

I see, thank you.

David Rein:

They say it’s a test statute and would not — a test case would not have any reflection on petitioner’s honesty or integrity.

Now, we submit that petitioners here cannot really feel so comfortable about the matter.

A criminal prosecution really is not the proper forum for a test case.

And a successful prosecution here will not culminate in the mere order to register.

It will amount to a conviction of a felony.

And quite interestingly enough, appearing in a different context and that is testifying before the Senate Foreign Relations Committee on the hearings on S. 2136 on amendments to the Foreign Agents Registration Act.

Deputy Attorney General Katzenbach took quite a different view of the serious nature of a prosecution under this Act particularly with respect to its application to attorneys.

And he told the Congress there that — and I’m reading now from page 3 of my reply brief according to Mr. Katzenbach as he testified before the committee.

He said, “Of course Senator, the penalty of being convicted of a felony even if the fine was small or if no jail sentence was imposed, can in many instances be a very heavy penalty indeed just simply to have a conviction.”

This is not true in the corporate situation but in the individual situation, there had been convicted of a felony for example in the case of a lawyer amounts to automatic disbarment in most instances.

I do not know whether a year in jail added to that has very much when he has that kind of a penalty.

And perhaps Attorney General Katzenbach overstated the point but I wish to indicate that when petitioners here had apprehensions and sought this declaratory judgment relief, they did have a very serious problem.

They cannot simply sit by and say that it was simply a test case.

As a matter of fact, I would submit that the penalty here is as great and as much an in terrorem nature as in the classic case of Ex parte Young.

Quite frankly, although as much as petitioners prize their right of privacy here that absent — this avenue of judicial relief, I think the petitioners would hesitate very much to test their legal rights in any criminal prosecution.

And in all likelihood, rather than risk the hazards of a criminal prosecution, and despite the affirmed conviction authority to exempt and not required to register, they probably would register rather than face their problem.

As a matter of fact, the respondent boasts to some extent that 94 of the law firms and individuals have registered under this Act without raising a peep.

Now, I submit they were face with that same kind of problem.

We assume here that they were under the Act in which there was no question or they thought they were exempt too but they decided that, “Well, these are valuable rights of privacy, but we’re not going to take a chance.”

Arthur J. Goldberg:

(Inaudible)

David Rein:

Well, let me say that.

We alleged in our complaint that there was no administrative remedy.

The Attorney General said in his answer that there was no administrative remedy.

He says in his brief here and apparently in recognition that there is a real problem here.

David Rein:

He says there is no real — I think at one point this brief said, it would be a great injustice if this Court dismissed the suit because you could always come in and discuss the matter with the Attorney General.

And he has discussed it with people and advised them whether or not they would register.

Now, I don’t think he suggest that that’s an administrative remedy because that seems to me to be ineffective administrative remedy, we would have to have some kind of a formal proceeding subject to judicial review.

Now, if there was that judicial remedy, I think we have exhausted it to the extent we’d have that dis — discussion with the Attorney General.

He has given us his view and we still disagree with him and I know of no other way.

I would like to point out however and this is a matter that came to our attention after we wrote the brief and which is quite significant however that it appears in the hearings before the Senate Foreign Relations Committee, particularly in the testimony of Mr. Arthur Dean, that the Attorney General has told some lawyers in law firms that they don’t have to register if they merely give legal representation and not trying to lobby or promote anything.

So, he has given relief to some but not to us.

Arthur J. Goldberg:

(Inaudible)

David Rein:

No.

These seem to be conversations.

And they point out as a matter of fact, which gets to the point about the constitutionality of the statute which weren’t going to raise that Mr. Dean also testified that in his conversations with the Attorney General or his representatives, the Attorney General’s representative said, “Frankly, we don’t understand the Act.

We don’t know what it means anyway and we just give people guesses.”

(Inaudible)

David Rein:

He was testifying before the Senate Foreign Relations Committee and appearing on behalf of himself as someone interested in the Foreign Agents Registration Act.

(Inaudible)

David Rein:

Where does that appear?

Its hearings on the — before the Committee on Foreign Relations of the United States Senate, 88th Congress, first session on S.2136 to amend the Foreign Agents Registration Act of 1938 as amended, Mr. Dean’s testimony specifically appears at —

Earl Warren:

Is it quoted?

David Rein:

It’s quoted in the brief and we cite it in our reply brief, Your Honor, we cite in our reply brief.

Earl Warren:

(Inaudible)

David Rein:

Is — in our reply brief at page 12, quoting from page 52 of the hearings, Mr. Dean testified as follows, “In a number of my talks that I have had with the Department of Justice over the years, the thing they have always been concerned about in the previous law was it was so broad and so vague that they did not know how to interpret it.”

And Chairman Fulbright commented on the same point.”

I think you have raised a very difficult problem, and one of the problems of enforcement in the existing law has been the difficulty of interpreting some of these provisions.”

Now, significantly —

Tom C. Clark:

(Inaudible)

David Rein:

What?

Tom C. Clark:

(Inaudible)

David Rein:

He meant the law hasn’t existed in the present law before the Court today.

Tom C. Clark:

That was the previous.

David Rein:

He was contrasting previous law or I think, in contrast to the proposed bill which the Senate was then considering which is S. 2136 which has not yet been enacted.

David Rein:

He meant the law as it stands — what?

Tom C. Clark:

Existing law, he thinks — he meant?

David Rein:

Yes, he meant existing law.

(Inaudible)

David Rein:

The Attorney General says 94 law firms have registers.

Well, he — he says 94 law firms and individuals.

I don’t know how they break up.

(Inaudible)

David Rein:

Lawyers, yes.

94 is his — is his figures and I don’t know the basis on which they have registered or what the nature of their representation is.

That’s all I know in the statistics he gave in that respect.

Earl Warren:

(Inaudible) as available to the public, are they public documents (Voice Overlap)

David Rein:

Oh, the forms?

Yes.

Earl Warren:

The forms are.

David Rein:

Yes.

These are standard forms in which we attached to our complaint.

Earl Warren:

Yes.

David Rein:

They’re available with the Attorney General.

You ask him what forms we have to fill out.

Earl Warren:

Yes, but they’re not filed on a confidential statement.

David Rein:

Oh, when they’re filed?

Earl Warren:

(Voice Overlap)

David Rein:

When they’re filed and filled out, they’re open to the public, yes.

Earl Warren:

Open to the public.

David Rein:

The Act requires that the information be on file with the Attorney General and open to public inspection.

Byron R. White:

— if the — the Attorney General (Inaudible) —

I think that’s —

Byron R. White:

— does not furnish him.

David Rein:

We haven’t furnished any information.

David Rein:

We haven’t registered at all.

Byron R. White:

I mean, would you have to do it all?

David Rein:

If we were asked to register, yes.

Byron R. White:

I know, but were you asked to furnish any in — in terms of making up — in terms of trying to determine whether you were — whether you were required to register.

Did they ask you —

David Rein:

(Inaudible)

Byron R. White:

— for any information at all that —

David Rein:

No, no.

In order to determine —

Byron R. White:

Yes.

David Rein:

In order for him to make as a judgment?

Byron R. White:

Yes.

David Rein:

No.

He never said —

Byron R. White:

So any information he wanted — any in — there has never come a point where he asked for something you didn’t give him.

David Rein:

That’s correct.

I mean, we didn’t give him the registration that —

Byron R. White:

No, no.

I understand.

David Rein:

But in the course of our discussions, he didn’t say, “Tell me something in order to determine what the nature of your representation was.”

Now, he takes the position as I understand it that if you represent a foreign government, you must register.

(Inaudible)

David Rein:

Yes, in any as a lawyer.

And then he has modified it, and perhaps I’m doing eminent justice that maybe it isn’t every foreign government, maybe it’s just some foreign governments and he would put Cuba in that category.

(Inaudible)

David Rein:

Because its —

And — and efforts were made to test the statute by a declaratory judgment?

David Rein:

To my knowledge, yes.

The Government says that there was another effort brought in the District Court in which it was dismissed by the District Court and that no appeal was taken.

Other than that, I know of no other case other than this case.

Byron R. White:

(Inaudible) wouldn’t most of your arguments still follow if, for example, he asked you to register and you’ve — and you’ve said to him — well I just — “I don’t think I’ll register”, and he indicted you and then you filed a separate action claiming that you were entitled to a civil determination of willfulness — of willfulness, the element of willfulness.

David Rein:

But we’re not asking a civil determination of that.

Byron R. White:

Well, I know but wouldn’t your arguments apply to that?

David Rein:

No, I don’t think so.

Byron R. White:

Why not?

I mean the same —

David Rein:

Because —

Byron R. White:

It would be the same threat to you.

David Rein:

No, because I think Declaratory Judgment Act is designed so that you can cover and have courts determine purely legal questions.

Byron R. White:

But won’t this one get down —

David Rein:

A coverage of the Act — what?

Byron R. White:

Won’t this one get down to whether it’s sort of a half — legal half —

David Rein:

No, I think —

Byron R. White:

— sort of determination about whether being a lawyer is being mercantile or —

David Rein:

Well, I — I think, it’s not a question of willfulness.

I think, the only question before the Court on this grazes whether or not we’re exempt.

Now, I gather the Attorney General says the position and we’re willing to take it if we have to.

And I don’t know whether we would stick to it in the criminal prosecutions.

He seems to say that because we have an honest belief that we’re exempt, that he couldn’t convict us criminally.

Byron R. White:

So what is it — are you suggesting that —

David Rein:

I don’t know what Mr. Justice —

Byron R. White:

— you — you never could’ve willfully violated this Act anyway.

David Rein:

Well, that seems to be a suggestion.

We — I say, it’s not complete assurance to us because we’ve had experience with the Attorney General may in a criminal proceeding, take a different position.

William J. Brennan, Jr.:

Well, let me —

David Rein:

We may therefore say, willful means something else than he says it means here.

William J. Brennan, Jr.:

Well, do I understand Mr. Rein, if you prevail that the action lies, there still has to be a hearing, I gather at which —

David Rein:

I’m sorry?

William J. Brennan, Jr.:

If you prevail, that the declaratory judgment action lies on this complaint, there still has to be a hearing, is there not?

David Rein:

Well, there is still one little — let’s say there’s a factual question possibly presented by the fact that an answer to our allegation as to the nature of our representation, the Attorney General has not conceded that that is so.

David Rein:

He has simply said, he has no information to the contrary.

So, we would have to prove —

William J. Brennan, Jr.:

You’d have to approve that?

David Rein:

The nature of our representation —

William J. Brennan, Jr.:

Why not (Voice Overlap) —

David Rein:

— that it was so eliminated.

William J. Brennan, Jr.:

You have —

David Rein:

Now, I don’t whether it would get to that, perhaps if he got to that, he would concede it.

I don’t know.

William J. Brennan, Jr.:

Well, you asked for injunctive relief didn’t you?

David Rein:

No.

William J. Brennan, Jr.:

Or you did not receive a —

David Rein:

Just — I’m just asking —

William J. Brennan, Jr.:

Whether he wants the judgment.

David Rein:

All we ask for is declaratory judgment in our pleadings.

William J. Brennan, Jr.:

And I gather that what — what was it you referred this to, the one case that was here before? That was yet in the Life case.

David Rein:

Yes.

William J. Brennan, Jr.:

That indicated that if — if no injunction was sought, then no proof of irreparable injury was required.

David Rein:

Or a matter of — that is saying but I — there was some question about that and I say, we meet that test anyway.

William J. Brennan, Jr.:

There’s a lot of question in my mind about that.

David Rein:

Well —

Byron R. White:

Well Mr. Rein, if — if there were — if you win this case and then there is a hearing as to whether you should or must register and it’s determined that you must.

And you register but then you were indicted for having failed in the past to do so, what about willfulness in that — willfulness in that situation?

In short, my real question is what is willfulness under this statute mean?

David Rein:

Well, I would contend that willfulness means what the Attorney General says it means here.

That means that you have to believe that you’re under the Act and there has to be some element of secrecy involved as the — under the purpose of the Act.

I don’t think that’s the question or that would be a question before the Court on the question of whether or not we’re exempt.

I don’t think the Court has to get into that.

But certainly it would be our contention that willfulness would have to have the criminal element, the element of — of concealment in — in view of the nature of the statute.

We like to point out further with regard to whether or not we bring a — a standard case for declaratory judgment relief that — and I think the Government here concedes that this is the kind of a statute that is normally referred to as a regulatory statute in which it doesn’t involve the kind of things normally including moral turpitude on (Inaudible).

David Rein:

Now, the legislative history of the Declaratory Judgment Act and all of the commentators and we set them out in our main brief at some length, point out that the Act was designed so as to permit tests of the validity and meaning of regulatory statutes of this nature, without making the risk of a criminal penalty, the price of a challenge.

And we suggest that the position taken by the Government in this brief, that this is a test case, indicates that it’s the very kind of a case that should be brought in a declaratory judgment action.

And we have further fortified in that, again, by further testimony given by Deputy Attorney General Katzenbach, in his testimony before the Senate Foreign Relations Committee.

He there argued that because of the difficulties that the Attorney General had with the statute, that he asked the Government, the Congress, to give the Department of Justice the power to bring injunctions to get in order to register.

And quite interestingly, in the course of his testimony, he said as follows, he was asked by Senator Sparkman, whether under the existing legislation, the Department could bring an injunctive action at the present time and he said, “I think not Senator.”

And I’m reading now from page 5 of my reply brief.”

There had been a couple of instances of a declaratory judgment but this is where the action is brought, not by the Government but by a potential defendant and he has the capacity to go into court and say that the Government is threatening him with a criminal prosecution if he does what he is entitled to do and he can get a declaratory judgment on it.

We do not have the same sort of power.

We suggest therefore, that at least in Attorney General — Deputy Attorney General Katzenbach’s opinion, this is an ideal case for declaratory judgment relief.

And in fact, he represented to the Congress that you could bring a declaratory judgment action and argued that the Department of Justice should have the same privilege or bringing injunctive relief.

Now, I like to suggest that the Senate Committee did oblige the Attorney General by introducing in the provisions of S. 2136 which is a bill which is still pending before Congress, a provision which would give the Attorney General power to bring injunctive actions to get an order requiring registration.

Now, I can only suggest that the Senate did not do the same thing on the declaratory judgment side because presumably they had been assured by the Deputy Attorney General that right already existed.

And it was necessary to amend the legislation in order to permit bringing such action.

Hugo L. Black:

(Inaudible) — Terrace versus Thompson which — to which they refer in the report.

David Rein:

In the declaratory judgment action?

Hugo L. Black:

Yes, he didn’t testify in that case did he?

David Rein:

No, he was just ref — testifying before the Senate Foreign Relations Committee, saying that he would like the Senate to amend the Foreign Agents Registration Act to permit this — the Department of Justice in questions where they had some problems to go into court and get an injunction requiring registration and he said, “That would put us on the same footing as potential defendants presently are, because they can bring a declaratory judgment action.”

Hugo L. Black:

Well, in some report, it referred to this quotation from Terrace versus Thompson.

David Rein:

Well, that is the report of the declaratory judgment of the Senate reporting the Declaratory Judgment Act, itself.

Hugo L. Black:

If they were obliged — they were not obliged to take the risk of prosecution, —

David Rein:

That’s correct.

Hugo L. Black:

— fines and imprisonment and loss of property, in order to secure an adjudication of their right.

David Rein:

We argue that Congress, by passing the Declaratory Judgment Act and by relying upon Terrace against Thompson, meant that this is the kind of a situation in which a Declaratory Judgment Act should lie.

And that is the meaning of the Declaratory Judgment Act.

As a matter of fact, we would say that faced with the present situation of an extremely harsh penalty, a statute which, though — though apparently, clear on its face, means something else again to the Attorney General and which is administered by him in a somewhat inconsistent fashion —

Hugo L. Black:

(Inaudible)

David Rein:

— as shown by the testimony of Mr. Arthur Dean.

The only rational cause petitioners could pursue here was to bring this declaratory judgment action and that is shown by the legislative history of the Declaratory Judgment Act, the Senate Report to which Justice Black just referred.

The Declaratory Judgment Act, if it was meant to cover anything at all, it was meant to cover a situation such as the present.

(Inaudible)

David Rein:

I’m going to get to that now as my last point.

William J. Brennan, Jr.:

(Inaudible) as I understand it, you’re asking this Court only to decide whether the action lies.Of course, your next —

David Rein:

Well, we didn’t ask the Court —

William J. Brennan, Jr.:

— (Voice Overlap) is involved in it.

You’re not asking us to interpret the statute —

David Rein:

No.

William J. Brennan, Jr.:

— to say that it does or doesn’t apply to your client.

David Rein:

We’re not asking — let me say this, when we brought our case in the District Court, we asked the District Court to interpret the Act.

The Government moved to dismiss the judgment — dismiss the case for judgment on the pleadings and they lost.

They sought an interlocutory appeal on the sole question of whether or not a declaratory judgment lies.

So, I say, when you say, we’re not asking, I think that —

William J. Brennan, Jr.:

Well, that’s all before us then —

David Rein:

That’s all that’s before you —

William J. Brennan, Jr.:

— that will — I — I gather this is wound up a bit with what you and I were discussing earlier.

If there has to be a fact determination whether this business bring or this — this practice brings him within the —

David Rein:

The exemption —

William J. Brennan, Jr.:

— statute.

Necessarily, you couldn’t pass on this —

David Rein:

That’s —

William J. Brennan, Jr.:

— anyway.

David Rein:

You couldn’t because there’s been no findings of fact and it’s just on the complaint.

And I only make the point that when I say, it’s only before you that it — that’s really only before you by the Government’s choice.

In other words, they sought an interlocutory appeal because they thought that question was decisive and they wanted to bring that question up alone on appeal.

On the question of sovereign immunity, well basically, we think that the issues of policy underlying sovereign immunity must be resolved on the same issues of policy which we have already discussed, which would permit us to bring a declaratory judgment action.

Before I get into that, I wanted just to discuss very briefly, what seems to me to be a somewhat unfortunate pleading problem which was raised by the court below and by the Government here and by numerous flattering references to what competent counsel did not do.

Now apparently, competent counsel, according to the Government and the court below, didn’t plead a proper case here.

I can only say for myself, since I was the competent or incompetent counsel as the case maybe, I tried to plead the case the best I could and I wasn’t leaving anything out at all.

Now, (Inaudible) — in the first place and we have and I don’t think it necessary, I have just discussed and set out some quotations in our main brief at page 13 about the interpretation of the federal rules of pleading and how they’re supposed to be construed in order to reach the merits of a controversy rather than to put obstacles in the path of — of deciding the case.

And I think that our pleadings fairly construed would permit me to argue anything that I wish to argue and that if they were not so construed, I would’ve asked leave to amend and I’m sure the court below would’ve given the leave to amend.

Now, with that preface, I said that the sovereign immunity doctrine does not apply here even under the strictest formulation of that doctrine.

David Rein:

And that formulation given it to by the Government and we will assume the formulation here, is that you cannot sue a government official unless you alleged one of two things, that he has exceeded his statutory authority or that there is a constitutional barrier to exercising that authority.

We say that, we could come within both aspects of that.

We have pleaded in our complaint and we would argue here, that since Congress has expressly exempted, expressly exempted our petitioners from the coverage of the Act, the demand of the Attorney General, that the petitioners register is in excess of his statutory authority and we make that claim.

Now, I think that you can’t get around it on the question of pleading that we haven’t made the claim.

The only answer that was given, was given by the court below and the Government, in the brief here, is that the Attorney General, he maybe wrong about whether the statute covers us or not and we maybe expressly exempt.

But he has not exceeded his statutory authority because he has the statutory authority to construe the statute and to construe the statute erroneously.

Well, I submit if that argument were presented and accepted by this Court that the exception carved out in the Lawson case, and this came from the Lawson case about the sovereign immunity, would never apply.

Every time a government official is brought before the bar of a court on a claim that he has exceeded his statutory authority, he can always reply and I submit, would always be replying in prefect honesty that I believe I have that statutory authority.

I mean that’s what made the dispute.

I don’t think we have disputes in here in which officials come in and say, “Well, I did exceed my statutory authority.”

He says, “No, I interpret the statute as giving me that authority.”

And if the Court has stopped at the threshold by that contention, as the Government would say that he has the statutory authority to construe his statutory authority, you never reach the question of whether he has statutory authority.

(Inaudible)

David Rein:

Well, as a — as a matter of fact, the cases before the Court on the posture that we are right, that’s the way the case is brought up.

(Inaudible)

David Rein:

Like not on the posture that it’s before the Court now.

(Inaudible)

David Rein:

Because if this Court construes the statute and finds that it’s outside its statutory authority because we are exempt and —

(Inaudible)

David Rein:

You don’t have to construe it but you have to assume it.

On the pleadings, this Court has to assume that we are outside and we are exempt.

The Government says that even if we are exempt and conceding that we are exempt, we can’t get declaratory relief.

I say, you don’t have to construe it because that’s already conceded for the purposes of this case that we are exempt.

And the Government says that nevertheless, conceding that we are exempt, we’re not entitled to relief, that’s the Government’s position.

Secondly, on the constitutional question, it’s true, we did not raise a constitutional question originally in our pleadings and we didn’t raise it because we felt that alleging that we were exempt from the Act, there was no basis upon which to argue that the Act was unconstitutional.

Now, we do not say as I indicated earlier, but if the Act did cover our activities, we would not be exempt.

However, the subsequent history of this litigation and even more clearly, the testimony before the Senate Foreign Relations Committee has shown that as interpreted by the Attorney General, the Act is hopelessly vague and obscure.

And we would suggest and we would be prepared that as a criminal statute, it is unconstitutional because it does not give a fair enough indication of the sanctions and its penalties and the provisions under the theory of the Lanzetti case and it would be unconstitutional on that ground.

Finally, if I may have just one minute and I think the subject is fully covered in my brief and reply brief.

On the general question of sovereign immunity, I think it’s important to note and I think this — I — we have pointed out, the Court has never applied the sovereign immunity cases doctrine, except in cases involving property or specific performance or funds in the possession of the Government.

David Rein:

But we say that that doctrine, this Court has said it a number of times as in this favor and should not be extended.

We argue that the Government here is asking the Court to extend it to a new field to which it has never before been implied.

Now, we made the flat statement in our brief, in our main brief, that the Court has never applied sovereign immunity except in those limited areas.

The Government and I would say in it’s — its brief says, we were wrong and has frequently been so applied and it cited one case in this Court.

And that case, really properly analyzed does not involve sovereign immunity.

It involved a completely different doctrine.

It involved the doctrine that where Congress is vested a certain power and administrative authority, there the power of the Secretary of Treasury to set tariff rates and if it has made that unreviewable and has told the courts to stay away, the courts will obey their congressional mandate.

Now, we do not understand the Government to contend here, that it’s not the business of this Court to interpret the Foreign Agents Registration Act, that the Attorney General has the unreviewable discretion to do that.

All it argues really and it all imposes the sovereign immunity for, is that that must be done in a criminal prosecution, not in a civil prosecution.

And we submit there has been no case, where, if we have shown that the criminal remedy here is not an adequate remedy, where sovereign immunity has acted as a barrier to bringing an action for civil relief, where there is no other adequate judicial remedy.

Thank you.

Hugo L. Black:

(Inaudible) they had asked for an injunction against the Attorney General?

David Rein:

I think it would and I don’t think we have to.

I’m not saying — I think logically, it would.

Judge Fahy made a distinction in that respect, I don’t want to give it up, if it’s persuasive to the Court, but in all honesty, I think the same argument would apply.

I — I really see no difference in logic.

I’m not suggesting that the Court shouldn’t.

Byron R. White:

And you —

David Rein:

I’m just stating my own position.

Byron R. White:

And your argument will also —

David Rein:

Because Judge Fahy did see a difference.

Byron R. White:

And your argument would also hold if the Attorney General had gone ahead and then — and brought a criminal prosecution.

David Rein:

We might have a different question there.

Then you sometimes —

Byron R. White:

I understood —

David Rein:

— had a slightly different question of whether you’re trying to beat somebody outside while you’re doing something.

And that presents a slightly different equitable question which we do not have present here.

About running to the first — who can get in the first leg because it’s you which sometimes consider the factor in these cases.

Hugo L. Black:

(Inaudible) between the enjoining the Attorney General from pursuing its job and asking to an adjudication as to whether or not under the Declaratory Judgment Act, something violates the law.

David Rein:

I hope, I don’t want to argue myself out for the point which is in my favor.

Hugo L. Black:

I’d be glad to hear you argue it.

David Rein:

And I — no, I don’t want to argue it.

I would be perfectly happy to have the Court make that distinction.

Tom C. Clark:

You might as well have an injunction because without a declaratory judgment and the Attorney General thought (Inaudible).

David Rein:

I assume he would not.

Tom C. Clark:

(Inaudible) declaratory law.

David Rein:

I assume he would.–

Tom C. Clark:

Second, you could join the court if — because you have tonight, someone see you 10 o’clock in the morning and you had a declaratory judgment but you’re not to be permitted to go into court and get an injunction at 9 o’clock in the morning.

David Rein:

I could ask for that relief if I —

Tom C. Clark:

And you can get it, is that right?

David Rein:

— felt it or presumably.

Tom C. Clark:

So it’s ridiculous to say that there’s no distinction or anything.

Of course there’s a distinction.

There’s no distinction only in between the declaratory judgment injunctions.

David Rein:

Well —

Tom C. Clark:

So far as the Attorney General is concerned, it might be (Inaudible) or you were fussing over whether or not there was a waiver of payments different problem altogether?

Well there’s one you have to, if Attorney General would be restrained from doing that and the others who do not, as I understood the one on page 3, (Inaudible).

David Rein:

I think my time is up.

Tom C. Clark:

Well said.

Earl Warren:

Mr. Pollak.

Stephen J. Pollak:

Mr. Chief Justice, may it please the Court.

In the Government’s judgment, this suit raises the fundamental question, whether persons who have engaged in activities which in the view of the Attorney General violates the law, whether those persons may obtain the aid of equity to bar a prosecution.

I might respond right at the outset or attempt to do so to Mr. Justice Black’s last question to my opponent.

In our view, the petitioners have clearly stated their position that this relief that they see — seek would bar their prosecution and that’s — that’s what they’re seeking.

They say that a — the relief if given that the activities of petitioners are not subject to the Act would end the dispute with finality.

It would be binding upon the Attorney General.

He would no longer insist on his demand that petitioners register and petitioners could continue their activities without the threat of indictment in a prosecution.

So, in our view of the case, we see no difference between this suit here.

Hugo L. Black:

(Inaudible) settle the law and whatever the cases to be decided.

Stephen J. Pollak:

Well —

Hugo L. Black:

But it may settle the law without restraining any government official from doing something.

Stephen J. Pollak:

Well —

Hugo L. Black:

He can go ahead and try it and maybe the Court would change its mind.

Stephen J. Pollak:

Well, we don’t think that the petitioners view the case in that posture Your Honor.

We —

Hugo L. Black:

I —

Stephen J. Pollak:

We believe that they’re seeking a binding judgment to preclude that description.

Hugo L. Black:

But we’re not bound — we’re not bound by their view of the law any more than you are.

Stephen J. Pollak:

No sir, no sir.

No sir.

In our — in our view, there are two issues presented.

One, whether the petitioners have established jurisdiction in equity, that is by showing that they would suffer a reparable harm from a prosecution, on the one hand or on the other, that they would suffer irreparable injury if they chose to comply with the statute.

The second issue is whether this suit is barred as an unconsented action against the United States, the ground on which the Court of Appeals or Mr. Judge Skelly Wright held that the suit must be dismissed or whether the petitioners have avoided the bar of sovereign immunity by showing that the Act is unconstitutional or that the Attorney General would be acting in excess of his authority, if he determined to bring a prosecution.

We believe petitioners must prevail of course, on both issues, if they are to prevail here.

Petitioners, in their argument and in brief, state their case on a single proposition.

That is that there is no available remedy at law by a defense to a criminal action.

They state that the penalties provided by the law are so severe that they cannot seek to test, that they are forced to comply.

In our view however, their own conduct speaks loudest in answer to their contention.

They chose to commence their activities.

Indeed, they chose to continue their activities as representative of the Republic of Cuba after the Attorney General had requested their registration.

In — equity cannot relieve against these activities which are passed.

They’ve chosen to engage in them and whether the determination of law is made in an equity action or in defense to a criminal prosecution for acts which are already passed, petitioners are subject to the very penalties which they urge this Court to — to rely upon in taking or holding the jurisdiction of this suit should be upheld.

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

Well, we think that — I think several things.

We — we think that their argument that the penalties are so severe that no one would ever run the risk, would then have more believability to it, if that’s a word.

They have come in here after running the risk.

We also think it — and I will argue however, that even in that case, we do not think that declaratory judgment will lie.

I think the — I — I think at the outset, it might be helpful to look briefly at the registration statute.

It was passed originally in 1938 as a disclosure measure.

It — it was directed as the Court I’m sure recalls, at the secret activities of representatives of Nazi Germany, working in secret, pounding out praise of the New Order.

Stephen J. Pollak:

It was directed to force these secret agents out into the open or to have them face the criminal penalties.

The Court has characterized it in the varied cases, a new type of legislation.

And as it now reads, “It provides that no person shall act as an agent of a foreign principal unless he has filed a registration statement or unless he is exempt.”

And the law sets forth in detail, Congress has set it froth in the statute, the information to be filed in this registration statement.

There are other requirements, supplementary registration statement, bringing the information up to date, the filing of copies of speeches and other materials which I don’t believe that my need go into in detail.

The failure to comply, as the petitioners have said, is a crime if willful and punishable upon conviction by up to $10,000 fine and five years imprisonment.

There is no civil test provided for in the statute.

There are however, several specific exemptions from the registration requirements and the other requirements.

Recognized diplomatic officials need not register, bona fide representatives of religious and scientific organizations.

There’s a further provision that an agent of a foreign government whose defense, the President of the United States has said, is vital to our defense.

An agent, when acting in behalf of those defense interests need not register.

And finally, there is the provision under which petitioners claim that they come, 3 (d) and it reads that there is exempted and I’m quoting, “Any person engaging or agree to engage in private and non-political, financial or mercantile activities in furtherance of the bona fide trade or commerce of such foreign principal.”

I would like to stop here to state that this provision which I’ve just read, is an amended provision amended in 1961, to eliminate the words or other activities.

In other words, it previously read, “Any person engaging or agreeing to engage” — let — let me read from the statute quoted on page 3 of the petitioners’ brief in this Court because that is how the statute read prior to 1961.

Well, I don’t — I don’t want to spend more than a moment on it.

It is pertinent to the reliance petitioners place on the hearings of Mr. Arthur Dean.

The statute previously read as quoted, “Any person engaging or agreeing to engage only in private, non-political, financial, mercantile or other activities in furtherance of bona fide trade or commerce.”

Now, that was a much broader exemption provision and it was as to that provision that Mr. Arthur Dean was testifying and he made that very clear.

He said that the amendment had removed the words or other activities and it was on those words which the Department of Justice had told some lawyers they were not required to register.

I only make the point because the reliant, Mr. Arthur Dean was testifying that some government people had told him that lawyers were not required to register and petitioners have suggested that the law has been administered in the discriminatory manner because they have been asked to register.

But I believe if the hearings before the Fulbright Committee will be reviewed, it will be seen that Mr. Dean was referring to the law prior to this amendment, and that Mr. Dean is pretty clear there that as amended, lawyers are required to register and the statute is not a confusing one.

And I might add further that Mr. Fulbright — Senator Fulbright on whom petitioners also relied because he has stated that there are some confusion or at least a difficult legal problem.

Senator Fulbright was referring to amendments which are being proposed so that — in his testimony in the hearings, at least insofar as there’s suggestion of confusing law or inconsistent administration, I don’t think it has any bearing on the provision which is being enforced here in this case.

Hugo L. Black:

(Inaudible)

Stephen J. Pollak:

Well, in the argument that the law is unconstitutional Mr. Justice Black, the petitioners cite Lanzetti and the void for vagueness doctrine.

And their sources of the vagueness argument are Mr. Arthur Dean and Senator Fulbright.

And I — I believe that if you were to consider the void for vagueness, you’d look at that — those arguments and so you might consider it in that sense, in that sense only.

Hugo L. Black:

Well, do I — I’d like — clearly on — it’s your position that the Act does cover and require registration — cover and require registration by a lawyer who does nothing but hire himself out to represent somebody in a court proceeding.

Stephen J. Pollak:

No, I — I don’t think that in that —

Hugo L. Black:

That’s the issue they’re tendering, isn’t it?

Stephen J. Pollak:

Well, our position is that a lawyer that represents a foreign government particularly in this case, it happens to be a socialist nation which has engaged itself in trade or commerce, is not in the words of the statute, engaged in non — in private, non-political activities and that he’s required to register.

Hugo L. Black:

Well, does that mean and — and maybe you’re right and I’m — I’m not — I don’t take much —

Stephen J. Pollak:

Yes.

Hugo L. Black:

— talking, they allege unconstitutionality of such law.

Stephen J. Pollak:

Yes.

Hugo L. Black:

But did that say that the Congress has here declared that every lawyer who represents a foreign country for a fee in a court below has to register?

Stephen J. Pollak:

Well, there maybe a distinction that is made for a representation on a one — one time basis.

Hugo L. Black:

But suppose you read this like you represent a — an insurance company, agree and follow their cases or — or so much a day.

Stephen J. Pollak:

Yes sir.

Well, the —

Hugo L. Black:

Just a lawyer, I’m talking about a lawyer and not a public relations one.

Stephen J. Pollak:

Yes.

Well, we’re not — I think as the petitioners have said that there’s no suggestion here that petitioners are public relations men.

Hugo L. Black:

There’s none?

It — it — are we here on the assumption that they had just —

Stephen J. Pollak:

That they are —

Hugo L. Black:

— or I could represent any other client —

Stephen J. Pollak:

Well —

Hugo L. Black:

— that happened to be representing Cuba?

Stephen J. Pollak:

Their — their allegations are that they represent the Republic of Cuba in financial and mercantile matters.

They make no allegations as to private representation and we — that therein lies the issue, yes.

Hugo L. Black:

Is that why?

Stephen J. Pollak:

That in representing a foreign government, a foreign government which is itself engaged in trade or commerce that the petitioners, the lawyers are required to register.

And I say, —

Hugo L. Black:

Your position then is on the merits that —

Stephen J. Pollak:

That they are required to register.

Hugo L. Black:

That they’re required to register, even though everything they say is true.

Stephen J. Pollak:

Well, even though everything they say is true, I — we’re — we believe they’re required to register.

Yes, that’s right, I think that’s right.

The — they have not said absolutely — well, they have not said that their representation is private.

Stephen J. Pollak:

I suppose that’s a conclusory term.

Hugo L. Black:

Well, I wouldn’t think about private, I just — thinking about the difference having to have written or at one time, between a lawyer who acts as a lawyer and tries cases and represents people as a lawyer and a man who represents people as a kind of a lobbyist or propaganda idea.

Stephen J. Pollak:

Well, the petitioners — and I — I was discussing the law (Voice Overlap) —

Hugo L. Black:

I — I had assumed maybe that that was what this was after.

It may be that it was intending to reach lawyers as a necessary thing.

Stephen J. Pollak:

Well, the law —

Hugo L. Black:

Just as a whole whenever they —

Stephen J. Pollak:

Yes.

Hugo L. Black:

— hire themselves out.

Stephen J. Pollak:

Yes.

Well, the law refers specifically, as came up during the petitioner’s argument.

The law re — refers specifically to represent or — an attorney acting as an agent.

So we think that while — again, while this is not directly here, —

Hugo L. Black:

(Voice Overlap) in what?

Stephen J. Pollak:

Pardon me?

Hugo L. Black:

Acting as an agent in what?

Which section is that?

Stephen J. Pollak:

I believe it’s on page 56 of the Government’s brief, it says, “An agent of a foreign principal includes any person who agrees to act or acts within the United States and then it lists number of things or attorney for a foreign principal.”

Hugo L. Black:

Well then your — you — you’re standing in on that as — so far as the merit is concerned, it’s meaning that if they represent Cuba, it doesn’t make any difference.

How they represent them, they are covered.

Stephen J. Pollak:

I think that’s right, yes.

Hugo L. Black:

(Voice Overlap) as an attorney?

Stephen J. Pollak:

Yes.

We don’t know what facts there are beyond, we said in response to the complaint that we didn’t know whether their allegations that they’d engaged in other activities of a — of a — or that they have not engaged in other activities of a lobbying or other nature were true, so we don’t know that.

But we believe that as a matter of law, they’re required to register —

Hugo L. Black:

And you —

Stephen J. Pollak:

— by what they’ve alleged.

Hugo L. Black:

You think that issue is here, whether the issue as to whether they could have a test by this method.

Stephen J. Pollak:

No, we do not think that the merits are here.

No, the issue whether they are required as a matter of law to register is not here.

Hugo L. Black:

No.

Stephen J. Pollak:

I don’t think I’ve suggested that.

Hugo L. Black:

You think that even though they’re required by the Act to register, under their allegations, we can’t decide that in this case, is that it?

Stephen J. Pollak:

I don’t think you’re — I don’t think you’re required to decide it.

I suppose if the Court wishes to —

Hugo L. Black:

Well, in here we might reach it because some of us might think it — they have a right to get a declaratory judgment as they did in Terrace versus Thompson.

Stephen J. Pollak:

Well, let — let me turn then to our position on whether they have a right to get a declaratory judgment.

Our view is that the rules of equity and the principles of sovereign immunity preclude this action and that it — to bar the consequences — to bar a prosecution on — for the activities in which petitioners have already engaged.

We believe that the famous cases of Sawyer, In Re Sawyer, Ex parte Young, Douglas v. Jeannette and others, established the accepted principle that equity will not enjoin a criminal prosecution and except in extraordinary circumstances.

And that those extraordinary circumstances to bar a prosecution or two.

That the prosecution must be one which irreparably injure the complainant and two, that the statute under which the prosecution would lie is unconstitutional or that the initiation of the prosecution is an action in excess of the authority of the Attorney General.

We do not believe that petitioners meet either of these conditions.

Petitioners have conceded that the irreparable — we — I suppose it’s the difference between us.

We — I felt that petitioners had conceded that they needed to show irreparable harm.

They opened their reply brief by saying that we have belabored the point as to whether petitioners need to show that equity jurisdiction rely and I understood that to mean that they agreed that they needed to show that a prosecution would irreparably harm them.

We believe that they do need to show that in order to sustain the jurisdiction here and we feel that they have not done so.

They rely to show irreparable harm on the single point that they cannot get another test, that is that they — that the penalties I’ve referred to preclude there, waiting a prosecution in order to test their rights, that the Registration Act like the rate regulation statute in Ex parte Young imposes such penalties that they cannot test their rights.

Hugo L. Black:

(Inaudible) that draw a distinction between the merits of it.You know that Terrace versus Thompson, they said this, “They are not obligated to take the risk of prosecution, fines and imprisonment, the loss of property in order to secure the adjudication of their right.”

Stephen J. Pollak:

Yes.

Hugo L. Black:

And that was quoted in the report of the Senate Committee on declaratory judgment law.

Stephen J. Pollak:

Yes.

Hugo L. Black:

Does this come in that — within that or not?

Stephen J. Pollak:

We — we do not think that it — that it does come within that because we think there were allegations in the cases in which this Court has recognized that a suit to enjoin a criminal prosecution could lie.

We think there had been allegations of irreparable harm which are not present here.

Hugo L. Black:

But this was the irreparable harm that they’re about to be prosecuted.

Stephen J. Pollak:

Well, this —

Hugo L. Black:

And it had to have to go though that before they could know whether they’ll be convicted or not.

Stephen J. Pollak:

In — as we read the cases, the — a single prosecution is not a sufficient harm to give jurisdiction in equity.

That the standard of Ex parte Young which is the standard recognized in — in the later cases of the Court is that there must be more — a risk of more than one prosecution, a risk of cumulative penalties.

Hugo L. Black:

So how much could they get on one prosecution?

Stephen J. Pollak:

In this — in the — put this —

Hugo L. Black:

In this case?

Stephen J. Pollak:

— in this particular case.

Hugo L. Black:

How about case, what —

Stephen J. Pollak:

The maximum penalties are $10,000 and five years in prison.

Hugo L. Black:

And you say that — that’s not irreparable.

Stephen J. Pollak:

Well, we — we say that the Court statement, we rely on the statement in Prince — Douglas versus Jeannette or the Spielman Motor Sales case, that a single prosecution, a single defense is not irreparable harm and that these cases in which the Court has upheld an injunction, have entailed penalties which the Court has called “immense or extreme,” I may not have the right adjective but these are penalties which — which have no measure.

For instance, in Ex parte Young, the sale of a single ticket —

Hugo L. Black:

But Ex parte Young is quite different to this one.

What could they have gotten in Terrace versus Thompson?

Stephen J. Pollak:

Well, as I —

Hugo L. Black:

What was the punishment there?

Stephen J. Pollak:

Well, as I will recall Terrace v. Thompson, the provision and possibly, I’ll have a chance to review it before tomorrow, but as I recall it, the provision there precluded the petitioners’ use of their property during the period that they — they had engaged or contracted for a sale and that — and the law precluded the sale and precluded their use of the property and I think that the case rested on that denial.

A — a factual situation which isn’t present here and I don’t think that measuring Terrace v. Thompson and in light of the later cases that we have a situation here where equity will enter to bar this prosecution.

Earl Warren:

Mr. Pollak, I think I should study that — we’ll finish this case tonight.

Stephen J. Pollak:

Well, and I won’t — I won’t have anything further to say on that case.

I have — our view of the need for equitable relief here, I have preferred to the fact that the petitioners have already engaged in their activities, they’ve — they’ve run these risks.

They will not be subject to greater penalties by refusing to register.

The law specifically provides that this a continuing offense so they are presently subject to as great penalties as they would be by continuing to act without registration.

Also, they have referred to the fact that their — their — the dispute maybe be settled with finality but the Government has no assurance that this will be settled with finality.

If the ruling goes against the petitioners, they say they will register but they may not make an adequate registration and then they will be back and saying that the Government is asking them for something that they’re not required by law to give.

And we will have more and more cases because every time it will be a question that they face criminal penalties and they have a right to a test.

But assuming that they’ve not already engaged in these activities for the moment, assuming that the risks — the risks that there are — we don’t believe come to a — a irreparable harm such as Young.

Now, there are many instances in which the citizen must run the risk of a criminal prosecution without an advance statement by a Court.

For example, the recent case in which the Court denied certiorari of Austin Tobin of the New York Court authority.

He was called to produce documents before the Congress of the United States, Committee of Congress, and he took the legal position that the Committee of Congress was exceeding its authority in demanding the documents of the New York Court authority.

He refused as a means of testing, his right to — or the Committee’s right to the documents, he had to refuse to produce them.

He had to supply on an occasion for prosecution in which he was prosecuted.

He was sentenced to 30 days in jail and a fine of a $100, as a means of testing whether he had a right to withhold those documents.

Ultimately, his right was upheld but he was not able to come in and get a declaratory judgment as to whether he had an obligation to produce.

Stephen J. Pollak:

This question, he did — Mr. Tobin did not try to do that but there was a suit brought in a previews term by Linus Pauling, who was asked to produce documents by the Senate Internal Security Committee.

He came into Court and asked that the process of the Internal Security, the subpoena, be declared void as in violation of his constitutional rights.

And he also asked that if the Court held that it had no jurisdiction of a suit against the Internal Security Committee, that it enjoin the U.S. Attorney from prosecuting him, he also sued the U.S. Attorney.

And the District Court dismissed that suit and it held that it had no jurisdiction.

The case was taken to the Court of Appeals.

Judge — Judge — Chief Judge Prettyman, Judge Bazelon and Judge Bastian, affirmed the dismissal of the suit.

There was a very limited amount of time and Judge Prettyman wrote a memorandum in which Judge Bastian concurred, Judge Bazelon concurred in the result only.

But Judge Prettyman, while emphasizing that there was no case or controversy in his view.

Chief Judge Prettyman also said that declaratory judgment would interfere with the legislative procedure.

It would be a judicial interference with the legislative proceeding.

It would impinge on the duties of the legislature.

Now, in — in our view, this type of proceeding here in advance of a decision to prosecute would be an impingement on the functions assigned to the executive, the enforcement of laws which hold criminal penalties.

Now, this suit would change those rules.

We would have — I cannot see a difference between this case and the case of a trade association which as an — means — or it’s one of its functions, circulates resale prices and is advised by the Department of Justice that that’s illegal.

It will be coming in to — obtained in a declaratory judgment that it has a legal right to circulate them, or doctors.

Doctors are not — are provided with a right to distribute narcotics.

If they do so in the course of their professional practice, why can’t doctors, who have a reputation in the community, they would come in and ask the help of a Court in determining what the words “professional practice” means.

The — this case raises the threat of criminal penalties to a — a key to come in in advance and get the Court to advise as to what — what the law is.

We don’t view that as ever having been the — the rules of law.

The — in fact as the original brief of the petitioners was filed, we thought that their main point was that prosecution would be a stigma, a stigma that they did not rely on the existence of penalties.

However, we answer that saying that in this Court’s opinions in Spielman Motor Sales and Douglas v. Jeanette and other cases, it has always been accepted at the one single prosecution.

The stigma of a single prosecution was not a grounds for equity to intervene.

Now, one reference to the point made that if they were to comply with the statute, it would be irreparable harm.

We set out in our brief the history of 26 years of interpretation and enforcement of this law.

In that period of time, there had been 16,075 registrations.

The history shows that there has only been one prior declaratory judgment action, 10 years ago and it’s cited in our brief.

It was dismissed by Judge Letts.

No appeal was taken and we assume that registration was made.

Potter Stewart:

So there has been 16,075 separate registrations —

Stephen J. Pollak:

Registrations.

Potter Stewart:

— under (Voice Overlap).

Stephen J. Pollak:

That’s right.

Potter Stewart:

What’s the 94 figure in your brief?

Stephen J. Pollak:

The 94 —

Potter Stewart:

(Voice Overlap)

Stephen J. Pollak:

— figure is the — the most recent list of active attorneys or firms of attorneys that are registered or haven’t registered.

Potter Stewart:

Attorneys, you mean lawyers?

Stephen J. Pollak:

Lawyers.

Every year the Attorney General makes a report in accordance with the law on the administration of the Foreign Agents Registration Act.

And this report list the registrants by country, by name, by purpose and you will find and its running your eyes down the list that some have registered as travel promotion, public relations counsel, legal activities, publicity, trade promotion, legal services.

There are —

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

No, sir.

No.

We don’t — we don’t contend that there are disputes of law over each of these.

But we cited the figures initially as an answer to the contention that registration would be — constitute irreparable harm and that attorneys could not get co-counsel.

And we felt that if, presently, there were 94 active foreign agents among our bar, that this was some answer to the contention that the registration would prevent or preclude getting co-counsel.

Now, in our view, the petitioners then have failed to show that they are entitled to equitable relief.

They have not shown that having engaged in these activities, they’re facing irreparable harm if the Attorney General should decide to prosecute.

But we also believe that they have not met the second condition precedent to this suit, to jurisdiction of this suit.

They — they concede that it is a suit against the United States and we — as the cases in this Court have said, a suit against the United States is barred by sovereign immunity unless that suit comes within one of two exceptions, that is that the statute being enforced as unconstitutional statute or the action taken is in excessive authority.

We do not believe that either condition is met here.

The main argument heretofore, has been by petitioners that the Attorney General is acting in excess of his authority that he has acted in asking for registration.

But in — as we read the law, there has been no action in excess of authority.

The exemption in this law is not a limitation on the Attorney General’s authority that he as the authority — as the government official charged with prosecution of offenses, has full authority to read the laws and determine when and when not to bring a prosecution.

But this is —

Potter Stewart:

Is there a specific authority in the statute for him to ask people to register?

Stephen J. Pollak:

There is no specific authority in this statute —

Potter Stewart:

It’s —

Stephen J. Pollak:

— for him to ask.

Stephen J. Pollak:

Indeed —

Potter Stewart:

It’s the duty of those covered to register and I suppose it’s his duty to prosecute those who don’t, isn’t it?

Stephen J. Pollak:

If indeed, the — at the outset of the petitioners’ argument, the question was asked whether if the Attorney General had not asked for registration but had just brought a prosecution.

What would the situation be?

I think that if asking is an excessive authority then the Attorney General will just cease asking and bring prosecutions instead.

I — I haven’t asked the Attorney General what he’s going to do so I — I — he still has his judgment to make but — but this asking for reg —

Tom C. Clark:

(Inaudible)

Stephen J. Pollak:

I’ll ask Mr. Miller or Mr. Yeagley.

Tom C. Clark:

(Inaudible)

Stephen J. Pollak:

The — Mr. Rein, refers to Mr. Katzenbach and I do — reminds me I want to make one point about his testimony.

But the — asking here for registration is merely a — an advance notice of the Attorney General’s judgment that a — that activities in violation of the law are going on and that he would he intend to — or possibly might intend to bring a prosecution.

If the opinion of Judge Wright in the Court of Appeals answers the suggestion that this asking for registration is an excessive law.

There is just — there is no limitation on asking for registration.

And as the Court of Appeals said, the authority of the Attorney General to prosecute is also in his absolute discretion barring some lack of good faith.

Now — therefore, we do not believe that there is any basis here for the suggestion that the Attorney General has exceeded any statutory authority.

In fact, we cite the — cite several cases including Larson in which the Court said that the attorney — that they Government official is empowered to interpret the law and the fact that he may have made an erroneous interpretation does not mean that he’s acting in excess of his authority.

Quoting Larson, it is argued, the Court stated, it is argued that an officer given the power to make decisions is only given the power to make correct decisions.

If his decisions are not correct, then his action based on those decisions is beyond his authority and not the action of the sovereign.

There is no warrant for such a contention in cases in which decisions made by an officer does not relate to the terms of his statutory authority.

On our view, that is — that is this case that the Attorney General has authority to prosecute and he has not, in any sense, exceeded that authority.

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

Yes.

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

I think you understand our position correctly.

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

The Trading Agency — well, the Trading Agency would be representing the foreign government, would it not?

It would be the foreign government.

It would not the — the foreign government would be its principal and in our —

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

Yes.

Stephen J. Pollak:

And I think in — in our view, the Trading Agency would not — if — if we reach the merits, we tried to stay away from the merits because we don’t believe that they’re are determinant of the Trading Agency would not be engaged in private activities in furtherance of trade or commerce.

Byron R. White:

And they would have to register?

Stephen J. Pollak:

It would have to register.

I don’t — I haven’t run down everything —

Byron R. White:

And therefore its lawyer would.

Stephen J. Pollak:

Therefore its lawyers but I — I suppose that — that running through this book, I saw the (Inaudible) trading agency.

Now, I suppose that’s an example of a trading agency of — or was as one time, I don’t know whether it still exists, of the Russian Government.

I — and its —

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

Well, I — it seems to me that possibly, you painted a case of a customer rather than an agent and if — if you’re buying in a relationship of buy-sell with a foreign country, I don’t suppose then that you are, although I’m not — I can’t stand here as a student of the — of the limitations of registration.

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

Yes.

Arthur J. Goldberg:

And you’re engaging in commerce (Inaudible) —

Stephen J. Pollak:

Yes.

Arthur J. Goldberg:

(Inaudible)

Stephen J. Pollak:

I — I believe that the — the position that has been taken is that where you represent a foreign government in the activities which the — which are financial or mercantile, that you are not engaged in private activities, yes.

I think that’s the position we’re taking.

Again, I emphasize that we don’t think the question is here.

Let me say in — that these quotations from Deputy Attorney General Katzenbach, were his statements as to the propriety of declaratory judgment which is the very issue that is here, there is no cross purposes among the Federal Government officials.

Mr. Katzenbach has written to committee and said that he was in the error.

He was informed that there had been some declaratory judgment actions and therefore, he made the statement which is quoted in the brief.

In fact, there have not been such declaratory judgment actions and he has advised the committee.

Potter Stewart:

Well, it’s this one, can you say one — another one?

Stephen J. Pollak:

Well, he has said — yes, he — there have not been successful declaratory judgment actions.

He’s advised the Committee that there was one in 1951 which was dismissed and that there is this case pending which at least at the Court of Appeals’ level was dismissed.

If — if his statement is read — it seems to me to read as if he had been advised that these cases did lie and he was just saying to the Court — oh, I’m sorry, to the Committee, that — that they had laid.

I might say that that bill, which has been referred to by the petitioners, offers in our judgment a civil remedy which would perhaps allow the Department of Justice to determine such close cases as this in a civil forum.

But it presents a far different picture than we have here where we have the petitioners engaging in — in their activities over a long period of time and the Government, having only a — a criminal proceeding which out of deference, it did not bring the deference to the bringing of this action.

But certainly, the Government cannot standby if a wave if declaratory judgment actions come in.

It cannot standby and let those actions run to their conclusion and all of these activities continue.

Stephen J. Pollak:

We’re going to have civil actions and criminal actions going on at the same time.

It’s been, I think suggested, from the bench that there is nothing to inhibit the Government in bringing its criminal prosecution when declaratory judgment action is brought.

(Inaudible)

Stephen J. Pollak:

The Government cannot bring a civil action now.

The bill, which has been reported out by Senator Fulbright’s Committee, would afford the Government that remedy and also a remedy to bring a cease and desist action.

That bill has been adopted by the Senate Formulation’s Committee.

Byron R. White:

This is a matter of jurisdiction imposed or what bar has really been (Inaudible) bringing a civil action where (Inaudible)?

Stephen J. Pollak:

The — I think that the — it seems like most things have been testified to before Senator Fulbright around here.

But I think the statement was that we have no power, no statutory power to bring that action in —

Byron R. White:

Do you think you need it?

Stephen J. Pollak:

Mr. Katzenbach believes that we need it and the man in charged of the administration of the law believe that we do.

Tom C. Clark:

Present statutes of criminal statute in the —

Stephen J. Pollak:

The statute in our judgment, this is —

Tom C. Clark:

It’s the same.

Stephen J. Pollak:

That’s right.

Tom C. Clark:

In this bill, I think Mr. Rein said that the — it was found as to the declaratory judgment.

Stephen J. Pollak:

That’s right, it is.

Tom C. Clark:

Is this letter that Mr. Katzenbach wrote subsequent or —

Stephen J. Pollak:

This letter that Mr. Katzenbach wrote was sub — was subsequent to his testimony and it —

Tom C. Clark:

(Inaudible) sent the bill out, approved at the outset?

Stephen J. Pollak:

I think it was subsequent to the committee approval of the bill.

The bill has not cleared the — have been brought to the floor and I — that is the posture of the bill.

Tom C. Clark:

It was after it, it came out of the —

Stephen J. Pollak:

It was after it came out of the Fulbright Committee, yes.

Yes.

Byron R. White:

Mr. Pollak, why — why does the department or — or why do you think allowing a civil action in this case, why the petitioner would do such damage to the law enforcement activities to the Attorney General?

Stephen J. Pollak:

Well, in — in our judgment the bringing — the determination of questions of — of when to bring on a case, when to prosecute?

Particularly, this is a case involving foreign relations, relations with the foreign — foreign principal.

Those are questions which are given to the Government, to the Attorney General and they are not questions which are to be decided by the private individual.

It’s not the citizen’s decision when to make the Government come in to Court and litigate these questions.

Stephen J. Pollak:

I think, the example, perhaps easiest to come to mind is the antitrust situation.

You’ve got limited staff.

You can only bring your cases in the areas that require the most attention.

And if the Government has to come in and litigate the questions because the individuals think that there is a risk why we have lost control of the management of our prosecution of the laws.

Byron R. White:

Well, this wouldn’t happen in a case when you’ve already made the approach and then insisted that these people register.

Stephen J. Pollak:

Well, we can’t — I don’t think we can only look at this particular case.

I — I think, I’ve tried to argue as if this was the only — the only case here.

But this case presents a question really which comes up all the time, that is, people fearing a criminal prosecution, want the Court to them an opinion as to whether their — the private individuals’ interpretation of the law is correct or whether the Government’s interpretation is correct.

William J. Brennan, Jr.:

But Mr. Pollak, you — you ran a test illustration.

I take it nothing if we agreed with petitioner here, would mean that any businessmen, merely because he was apprehensive of an antitrust prosecution would bring him without the Government having indicated any reason why he should be fearful.

As here, the petitioner says, he had a reason to fear prosecution because a demand was made upon him to register but accepted to do something like that of the antitrust laws.

Stephen J. Pollak:

Well —

William J. Brennan, Jr.:

I don’t understand the petitioner argue, what it suggests that — I don’t understand why should, that this would expose the antitrust laws to declaratory judgment actions really doing, merely because follow his (Inaudible)?

Stephen J. Pollak:

What — well, I don’t want to extend, I don’t want to extend the risks overbroad here.

What I said in my argument was that a trade association circulating retail prices and advised by the attorney — by the antitrust division that that was illegal, would come in to bring action.

I suppose —

William J. Brennan, Jr.:

But it would take at least something like that, an antitrust law.

Stephen J. Pollak:

I — I suppose if the Government — if this case were to go against the Government, the — that the Government would be best advised to keep its mouth shut and then bring its prosecution.

William J. Brennan, Jr.:

All of your arguments —

Tom C. Clark:

But he can’t do that to an antitrust, to bring a prosecution in (Inaudible) investigated.

The man to go into a company’s files or at present and the officers are going to be alarmed that they complain declaratory judgement (Inaudible) to bring them out.

I would imagine if I was their lawyer, I told him to bring in.

Stephen J. Pollak:

Well, I — the — the complaint characterized this as a demand for registration.

In the argument here, petitioners have quite correctly said that there was an exchange of letters and then meetings.

I don’t think that the lines are very far different from the threat which is posed if there is an investigation of antitrust — of anti– activities possibly in violation of the antitrust laws.

Tom C. Clark:

Of course, the Congress wanted to extend the judgments, as they do in some other cases like Perkins (ph) to foreign agents’ registration or whatever authority to do that, would they not?

Stephen J. Pollak:

Well, our — our judgment is that that’s precisely where the decisions should be made here that the —

Tom C. Clark:

Do you have an argument so written?

Stephen J. Pollak:

The — this is a decision which Congress made when it made the law subject to — to criminal penalties.

Byron R. White:

Mr. Pollak —

Stephen J. Pollak:

Yes.

Byron R. White:

— the arguments you’ve given as to why it would greatly interfere with the functions the Attorney General seemed to me to wash out once he indicts and why wouldn’t — if — if there’s in indictment, why can’t the — why can’t the determination be made in a civil action if it were brought on the side?

Stephen J. Pollak:

Well, we don’t — we think that would be the same case.

We think it could not be brought on the civil side and we don’t —

Byron R. White:

Why not?

Stephen J. Pollak:

Why not?

Well, we don’t think that would be the kind — we don’t understand that to be the kind of relief that the petitioners are seeking.

The —

Byron R. White:

I agree with that but I just wondered what would — really what your —

Stephen J. Pollak:

The issue at law —

Byron R. White:

— what you — what — what is your overall resistance really to having some of these questions determined in a civil action?

Stephen J. Pollak:

Well, the — if the Attorney General brought a prosecution and then once it was brought, the petitioners said, “We want to go into a Civil Court to enjoin the prosecution.”

Byron R. White:

Well, and showing that just as declaratory judgment.

Stephen J. Pollak:

Well, I don’t —

In the prosecutions.

Stephen J. Pollak:

So we —

(Inaudible)

Stephen J. Pollak:

Well, and so that perhaps they could continue their activities.

If they were going to attempt to get that sort of relief, we think it would be denied on the strength of the — intent of the law.

But I don’t — I don’t think that if the Government has indicted in a — for past activities that he would just not afford any kind of relief to go into a civil court to get an injunction.

You just — you’d have as they said, you’ve have the same court making the same decision of law.

There would be no — there would be no irreparable harm.

There would be no question that equity would deny the jurisdiction.

William J. Brennan, Jr.:

Well, Mr. Pollak — Mr. Pollak, you don’t answer Justice White if there’s basic public policy consideration as relying here, interference for the prosecution of the criminal lawyers in civil actions.

Stephen J. Pollak:

Well, I thought — I thought I’d already argued that and he was saying I don’t accept that but I hope he —

William J. Brennan, Jr.:

I wouldn’t think he was suggesting that.

Stephen J. Pollak:

We think that that basic policy exists and we think that there is something to be said about putting the Government through two trials.

I’m not sure but what in your example we wouldn’t have to proceed from the civil court.

If the Government prevailed in the civil court then we would go back into the criminal court and we’d have different burdens of proof and different questions (Voice Overlap).

Byron R. White:

But when the Attorney General goes to somebody and says you register, don’t you think there’s some difference between going into a civil — into the court and saying the statute doesn’t cover this and saying that I didn’t violate the statute?

Byron R. White:

And isn’t there some real difference here between the kind of question that — as attempted to be brought up in a civil action?

Stephen J. Pollak:

Well, I think there are — there are certainly are dif — if what you mean is an order to get —

Byron R. White:

And what if they — what if here, the — the Attorney General said that you must register, you represent Cuba.

Stephen J. Pollak:

Yes.

Byron R. White:

And the — the potential registrees says, “I don’t represent Cuba at all, and I want to go into court in — in this — into a civil action and have a declaratory judgment, this statute doesn’t apply to me”, or that, “I am not violating the statute.”

Was that the same kind of a question that — that is involved here that this statute just doesn’t happen to reach lawyers representing a foreign government?

Stephen J. Pollak:

Well, there —

Byron R. White:

Would you make the same arguments in both cases?

Stephen J. Pollak:

I think that unless the allegation was being made that the Attorney General in — in requesting registration in your case was acting in bad faith or something, that we’d have — we would be making the same argument.

Your question poses more questions of fact.

Your man is saying, “Well, I don’t even — I don’t even know him.”

And I can understand — I personally can understand how you — your case would arise, how the attorney —

Byron R. White:

Well, is there — a more reason though in the case that you have today and to — for a civil action then in the case I posed?

Stephen J. Pollak:

Well, there’s — because in this case we have today, there’s a finer more concise legal question and that we don’t have as many open facts possibly.

But I think that the same — that the question is presented.

We’d have to say that civil action was no more warranted there than here.

This isn’t the way the law proceeds.

Hugo L. Black:

(Inaudible) or you would say something about Terrace versus Thompson.

I would like to ask you a question about it so if you want to say something later, you can say it.

I fully understand the policy that against public policy, against stopping the prosecutions of crime well established in the law, all over the country, in the United States.

But there’s a policy, have been declared according to the report of the Committee in these words, I don’t know whether it governs this or not but it is interesting.

And reporting it, the — the committee said, “The Supreme Court mentioned one of its — meaning this bill, principal purposes in Terrace versus Thompson, by (Inaudible) when it said, they are not obliged to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights.

My problem — my question is this, I do see a distinction between enjoining the Attorney General and getting a declaratory judgment under this law.

Maybe they’re not entitled to get it, maybe there are other objections.

Maybe it’s because they can’t get relief unless they are also entitled to an injunction.

But that seems to be an accidental report by citing an opinion of this Court where it said you didn’t have to show irreparable damages, and didn’t have to show that you want an injunction, they referred to that also.

What they have said in this report is that the Act is supposed to give a man a right as I understand it, feeling this case exactly, and unless there are other things in the context.

If a man is about to be prosecuted for a crime, serious crime, and the — the only way he can get it tested to see whether or not he has to obey it, he can ask for a declaratory judgment and that that is enough.

Stephen J. Pollak:

Well, I think that I would — at the moment can only repeat that the reference in that quote I think to Terrace v. Thompson, also refers to the laws of the use of property which has been customarily one —

Hugo L. Black:

(Voice Overlap) it doesn’t limit it, the use of property and so far as I’m concerned, I wouldn’t have any sympathy with the law that said that, “You didn’t have to, you could go ahead and get your protection but you rather do the little something to your property.”

Hugo L. Black:

He couldn’t get it to get tested if they’re about to put you in a penitentiary for five years.

That would seem most serious to me than take a little bit of his property.

Stephen J. Pollak:

Well, I wouldn’t want — I don’t want to —

Hugo L. Black:

And I don’t think you based it on that.

Stephen J. Pollak:

Yes.

Well, I thought —

Hugo L. Black:

I’m not sure if this Act covers it but I —

Stephen J. Pollak:

Yes.

Hugo L. Black:

In your brief, I read your brief carefully and I can’t see where you answer it.

Stephen J. Pollak:

Yes.

Well, the — in the subsequent history of the use of the Declaratory Judgment Acts, we find no case where the possibility of a single prosecution with the customary penalties, that is penalties of fine and imprisonment which have a — which are limited in nature, in other words, five years, $10,000 or some other penalties.

We find no case in which the presence of those potential penalties is enough to afford declaratory relief.

And I think that that is why we felt that the Declaratory Judgment Act does not provide and was not intended to provide a remedy in the Civil Courts where there was a question of law which would be determined in defense to the criminal action.

Now, we may not have read the — we may not have read the legislative history correctly.

Hugo L. Black:

No.

The — the report of the committee is not by the lawyers of course.

So unless my reading of the report is, and I’m satisfied, it was not with the writer, was not limiting it to injure the property.

You’re just saying that if you’re going to prosecute somebody, this — one of the principal purposes of this bill, is to let him settle it inside the civil case without running a risk of being convicted of a crime.

Stephen J. Pollak:

Yes.

I — well, I only — I believe there —

Hugo L. Black:

It may be a constitutional reason —

Stephen J. Pollak:

Yes.

Hugo L. Black:

— why that shouldn’t be the case.

Stephen J. Pollak:

Well —

Hugo L. Black:

I don’t know.

Stephen J. Pollak:

I have — my standing here — my recollection is that subsequent to that time, there are cases in which the courts have said that just a criminal defense is not enough.

Hugo L. Black:

That might be right.

The criminal defense are (Voice Overlap) —

Stephen J. Pollak:

The necessity —

Hugo L. Black:

I think, my Brother White drew a distinction, possible distinction which may or may not amount to anything, between the mere statement, I’m not guilty and a mere — and another statement that the Act just doesn’t cover the category of things that you would charge in the U.S.

Stephen J. Pollak:

Yes.

Well, I — I see that distinction.

I see that distinction.

I don’t see it in the cases.

I think that the — I — I have my reading of the cases is that they require you to defend once.

Hugo L. Black:

Why didn’t the Government raise the other question?

Stephen J. Pollak:

The other question, which the —

Hugo L. Black:

Well the —

Stephen J. Pollak:

— case of Thompson versus —

Hugo L. Black:

The placement as to whether the Act which says —

Stephen J. Pollak:

Oh!

Hugo L. Black:

— attorneys meant attorneys.

Stephen J. Pollak:

Well, I — the reason I think is as we read this Court’s opinions in the sovereign immunity cases that the merits don’t determine the disposition of the question.

Thank you.

Earl Warren:

Very well Mr. Pollak.

We’ll adjourn.