United States v. Brewster

PETITIONER:United States
RESPONDENT:Brewster
LOCATION:Former Moose Lodge No. 107

DOCKET NO.: 70-45
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 408 US 501 (1972)
REARGUED: Mar 20, 1972
DECIDED: Jun 29, 1972
ARGUED: Oct 18, 1971

ADVOCATES:
Norman P. Ramsey – for appellee

Facts of the case

Question

Media for United States v. Brewster

Audio Transcription for Oral Argument – October 18, 1971 in United States v. Brewster

Audio Transcription for Oral Reargument – March 20, 1972 in United States v. Brewster

Warren E. Burger:

We’ll hear arguments next in number 70-45, United States against Brewster.

Mr. Solicitor General.

May it please the Court.

This case is here on reargument.

It is a direct appeal from a decision of the United States District Court for the District of Columbia dismissing an indictment on constitutional grounds.

The indictment appears beginning on page 1 of the appendix.

It consists of nine counts or ten counts.

The odd numbered ones of which relate to the defendant former Senator Brewster.

The even numbered counts are not before the Court at all and the first count may be taken as for the purposes of this appeal as typical of the rest raising the question which was decided.

The first allegation in the account is that at all times here after mentioned in this indictment, Daniel B. Brewster was a public official that is a member of the Senate of the Untied States from the State of Maryland.

And then over on page 2 of the indictment are the principal allegation of the first count is that Daniel B. Brewster being a public official, acting for and on behalf thereof directly and indirectly corruptly as solicited, sought, accepted, received and agreed to receive the sum of $5,000.00 for himself and for an entity in return for being influenced in his performance of official acts in respect to his action, route and decision on postage rate legislation which might at any time be pending before him in his official capacity and in his place of trust and profit in violation of Section 201 (c) (1) and 2, Title 18, United States Code.

After the indictment was found, defendant through his counsel filed a motion to dismiss the indictment.

In fact two motions dismissed, but the only one that’s here is the one which appears on page 8 of the appendix.

And the motion to dismiss, the odd numbered counts of the indictment was on the ground that in each such count, the defendant is charged with being influenced in his performance of official acts in his capacity as a United States Senator.

And then finally the third reason of the motion to dismiss each count of the indictment as charged against this defendant violates the provision of Article 1, Section 6 of the United States Constitution which is the Speech and Debate Clause which it will be remembered, said in in rather simple terms that for any speech or debate in either House Senators or Representatives shall not be questioned in any other place.

The language, the important language here is, in a speech or debate in either House.

And then the order of the Court from which this appeal is taken appears on page 34 of the appendix ordered that the defendant’s motion be granted and the indictment be and hereby is dismissed as to the defendant Brewster for the reason stated orally by the Court at the hearing on October 9, 1970.

And those reasons appear on the preceding page, page 33 where the Court said, “Gentleman, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.”

Now I suggest that that’s simply a paraphrase of exactly what the indictment says.

And then it is the opinion of the Court that the immunity under the Speech and Debate Clause of the constitution, particularly in view of the interpretation given that clause by the Supreme Court in Johnson’s shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act.

The question of the jurisdiction of this appeal has been deferred to the hearing of the merits of — I find it myself somewhat difficult to see that there is doubt as to the jurisdiction of the appeal.

This arises under the old version of the Criminal Appeal’s Act, since the indictment was found here before January 1971 and it seems to us that this appeal comes under two of the clauses of that statute.

There is a suggestion in Mr. Ramsey’s brief that for some reason the statute is not applicable because of a reference to a conference memorandum which was said to be before the judge.

It is not in the appendix.

I have never seen it.

I would like to suggest that with respect to it that there is no procedure for summary judgment in the rules of criminal procedure.

I think that there is a sort of spillover here because we’re familiar with the summary judgment and the rules of civil procedure that this is in some way a decision on a summary judgment, but I know of no procedure and the rules of criminal procedure for summary judgment.

And then I would like to suggest and Mr. Ramsey says that this was the equivalent of an acquittal.

I would like to point out that no jury had been impaneled, no trial had been commenced, and I would like to suggest that as far as anything that I have heard of in the law of criminal procedure, so far there cannot be an acquittal, except at a trial that is until a jury has been impaneled.

Now, this becomes a little complicated in the case of a trial without jury, but I still suggest that there cannot be an acquittal without a trial that is that the commencement of trial without a jury is a rather formal act, likely impaneling of a jury and requires among other things that the right to trial by jury has been waived.

There was no such waiver here and there was no trial.

There cannot be double jeopardy until there has been jeopardy.

I hear no jury had been empanelled and jeopardy had not attached.

I would like–in closing the jurisdictional part of my argument to refer to decisions of this Court, which are not cited in my brief.

One of them, the first of them is cited in an early brief of Mr. Ramsey, though for another point.

That is the case of United States against Fruehauf in 365 U.S.

Where the situation is almost exactly parallel to that here.

There had been memoranda before the District Court.

There was a direct appeal to this Court under the Criminal Appeals Act.

If the position taken now by Mr. Ramsey is correct, even assuming that the conference memorandum to which he refers is a part of the record here that appeal should have been dismissed on the ground that there had been a decision under summary judgment or an acquittal.

That the decision — not only that appeal, not only was not dismissed, but the case was sent back to the District Court for trial.

And then another case which is not cited in our brief, but it is so closely parallel that I think it is appropriate to mention in here, United States against Halseth, that is 342 U.S. 277, where it appeared that there had been stipulation in the District Court.

And there again, if the decision of the Court with respect to that stipulation had amounted to an acquittal or a decision on a summary judgment, the appeal should have been dismissed, but the appeal was not dismissed.

Both of these cases are discussed in Mr. Justice Harlan’s opinion in the United States against Sisson in 399 U.S.

But I would point out that the Sisson case is clearly inapplicable here because there had been a full trial and the judges’ decision which amounted to the entry of a judgment, not withstanding the verdict was based on facts which appeared at the trial.

Thus, jeopardy had attached and the basis for an appeal was removed as was held in the Simmons case itself.

Now, turning to the merits here, the case is of course the step beyond the Court’s decision in United States against Johnson which was decided some six years ago.

The appellee relies on the Johnson decision, but I think that it is by its own terms inapplicable here.

With the benefit of hindsight, one can say that the Johnson case was an unfortunate case to bring before the Court.

The charge there was under the conspiracy statute which is a very general statute.

While the charge here is under a bribery statute, one which with respect to Congressmen and Senators has a continuous history going back to 1853, 119 years during which time Congress has expressly said that when a Congressman or a Senator accepts a bribe, he should be subject to prosecution through the regular procedures of the criminal courts.

But in the Johnson case as well, not much concern was given about the Speech or Debate Clause in initiating the prosecution or in carrying it out.

In that case, the indictment contained a specific reference to the Speech and Debate Clause which was quoted at some length in the Court’s opinion.

This is on page 184 and paragraph 15 of the indictment said it was party said conspiracy that the said Thomas F. Johnson should render services for compensation to whip the making of a speech defending the operations of Maryland Saving Loan Associations and so on.

Warren E. Burger:

Mr. Solicitor General, do you recall whether in the Johnson case, there was a motion in the Trial Court challenging the indictment on that specific ground?

I do not recall Mr. Chief Justice.

I do not believe that it appears anywhere in the opinion of this Court.

I have not searched through the record as to what was done in the District Court.

Not only was this in the indictment, but at the trial itself, some 50 pages of the transcript related to the speech in the case presented by the Government and having been so opened up by the Government, there was much more about the speech in the presentation of the defense.

The government introduced a copy of the speech in evidence and devoted substantial argument to the preposition that the nature of the conspiracy was that the speech should be delivered in order that it could be reprinted and distributed among appropriate persons in Maryland.

Now, with respect to the Johnson case.

It is very significant that the opinion was narrowly guarded on page 184 of the opinion.

The Court said, “Whatever room the constitution may allow for such factors in the context of a different kind of prosecution.”

And this of course is a bribery prosecution, not a conspiracy prosecution.

And then on page 185, the Court said, “We emphasize that our holding is limited to prosecutions involving circumstances as those presented in the case before us.

We expressly leave open for consideration when the case arises a prosecution which though possibly entailing inquiry in the legislative acts on motivations is founded upon a nearly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.”

Then I think it’s not irrelevant to point out those three members of the Court, Chief Justice Warren and Justices Douglas and Brennan concurred only in the limited holding of the Court that the use of the Congressman speech during this particular trial within examination into its authorship, motivation and content, it was violative of the speech or debate clause.

Two members of the Court took no part in the case, so that there were only four Justices who concurred in anything broader than the limited holding referred to in Chief Justice Warren’s opinion.

Now, there’s nothing like this in this case.

There is no speech at all.

Indeed as I’ve indicated, there’s no evidence before the Court, there was no examination into the authorship, motivation and content of any speech.

There is a reference in each count to the effect that Senator Brewster is charged with taking a bribe and I quote “In return for being influenced in his performance of official acts in respect of to his action, vote and decision on postage rate legislation.”

Warren E. Burger:

Mr. Solicitor General, supposed under this indictment case were tried and the defendant established that he voted not at all absented himself or abstained or voted contrary to the agreement charge with that — if never the less a bribe had been paid would that undermine the case, the Government’s case?

I think not Mr. Chief Justice if the defendant was the one who brought that out.

I am a little concerned if the prosecution relies on a vote.

Warren E. Burger:

I am assuming the defendant would be the one who —

If the defendant brings it out, I assume he can waive –- well I don’t know, it says, shall not be questioned unless he relies on it.

I find it hard to see how he can complain that he is being questioned.

I would think certainly under the Johnson case, it is clear that the Government cannot maintain the prosecution if it relies directly on the giving of a speech.

There is some reference in the opinion to tangential use.

I do not quite know just what tangential use means.

I would think that it might perhaps be within that language if it were shown that there was a speech, but if the text of the speech was not relied on and if the motivation and authorship of the speech were not gone into.

But I would suggest Mr. Chief Justice that this indictment at this stage can be sustained without answering these questions.

I don’t know just where the line is.

I know that the constitution says speech or debate in either House and I don’t think that is broad enough or ought to be held to be broad enough to cover things which occur outside of sessions of the house which might be construed to include sessions of committees.

Committee may be for this purpose is something done in the house.

It doesn’t say both, but I am troubled about vote and there are opinions of the Court which have indicated, though I do not think actually decided that vote may be enough.

But this indictment charges him of receiving a bribe for being influenced in his performance of official acts.

In respect to his action, vote and decision, on postage rate legislation or I suppose we strikeout votes, supposed we say that can’t be referred to, I don’t conceded that, but let’s strike it out.

There is still plenty in this indictment and the evidence of the trial may show nothing relating to a vote.

There is no charge with respect to his speech which is the only thing to which the Johnson case applies.

And unless the Court is prepared to hold that nothing that a senator does as a senator can be questioned in any other place under the speech and debate clause, a result prior beyond anything that has ever yet been decided.

It seems to me that there is no basis for holding that this indictment of itself without any evidence is in violation of the Speech and Debate clause.

Our position —

Thurgood Marshall:

Mr. Solicitor General, the difference in those speech involved in act and wouldn’t it be true that if the Senator took the $5,000.00 and the next day the bill was withdrawn from Congress, he couldn’t have voted or done anything on.

He would still be getting [Voice Overlap]

Yes, Mr. Justice Marshall.

It would be our position that the crime is committed when the bribe is either solicited or received.

He doesn’t have to receive it with the requisite intent and that it is not necessary to prove that there was in fact any legislative act of any kind.

And, I think that becomes quite clear when you consider the solicitation language in the statute ask, demands, seeks, solicits any bribe it would not be possible to prosecute the solicitation of a bribe if the other construction of the statute is taken until you waited to see whether he did something.

And as I have tried to develop in the supplemental brief which we have filed, I think that a prosecution under this statute can be maintained and that the indictment is sufficient without the showing of any speech or debate of any kind, without the showing of any action.

If there is evidence which can show that at the time he solicited or received the bribe, he intended to take legislative action in accordance with the bribes request.

Warren E. Burger:

Mr. Ramsey.

Norman P. Ramsey:

Mr. Chief Justice and may it please the Court.

I should like to address myself first to the suggestion made by the Solicitor General in his closing comments.

First, I would request to the Court that attention be given to the five particular subject matter which is now asserted by the Solicitor General was never argued below.

It was not the textural aspect of the case when it was before the District Judge.

What was before the District Judge was perfectly clearly set forth in connection with the debate in colloquy and in connection with the record of the case as it there existed.

Government counsel there said that under this indictment and I am quoting from page 28 of the record extract.

We are not contending that what is being charged here, that is the activity by Brewster was anything other than a legislative act.

We are not ducking the question, it is squarely presented.

They are legislative acts.

We are not going to quibble over that.

Now, the important point to this case as we see it is this, this case does not test the outer limits of speech or debate.

This case falls squarely within the hard core of speech or debate.

In the earlier arguments and in the brief that the Government which is earlier submitted in this case, the Government conceded that while the precise limits of Johnson may be a little vague, “we do not contend that the clause for text only speech.”

And then they went back to two formal holdings of this Court in the Powell case and in the Kilbourn case, committee reports, resolutions, any act of voting are equally covered as are “things generally done in a session of the House by one of its members in relation to the business before it.”

That has never been a doubted proposition.

It was against the text of that and this Court’s clause as it’s imposed it on the Speech or Debate Clause.

The District Judge Hart made his decision against the background of that he plays an indictment which followed as the Solicitor General has candidly conceded to the Court and into question, official conduct in the nature of action, vote and decision.

Norman P. Ramsey:

Now this illusive memorandum of conferences was known to trial counsel below and certainly appellate counsel are charged with knowledge of what trial counsel did know.

All we put that before the Court before in the first instance was to make the Court aware that this case was not decided in a vacuum.

That there was justification for the comment by Judge Hart “based on the facts of this case” that this was not decided in the abstract.

As one of the Justices —

Warren E. Burger:

You’re saying it was not decided on the indictment?

Norman P. Ramsey:

It was not decided in the abstract.

Warren E. Burger:

On the indictment?

Norman P. Ramsey:

Well, I am coming to that sir.

As one of the justices, Mr. Chief Justice inquired before, I think it was Justice Stewart.

Did not the indictment say action, vote or decision?

And it did sir, but that was simply clarified and in that regard, our position in that matter is this, basically when a Congressman using, of course that is general phraseology, when a Congressman is accused of improper conduct, improper motivation, then there must come at some point in the preceding when either before the Grand Jury action is brought to stop improper intrusion into areas covered by speech or debate or if after indictment when a Trial Court has occasion to have access to the precise facts upon which the application of speech or debate is made apparent.

We say that that is what happened in this particular case.

It was not challenged at the Grand Jury level as this true in another case currently pending and as to which I will make no detailed comment, but it was challenged by a 12 (b) (1) motion as soon as it could be.

That is to say, we put before the Court and the Government cooperated in putting before the Court that what was being questioned in this case was legislative conduct, not the postulated absence of legislative conduct.

Thurgood Marshall:

But what phase of legislative conduct is the taking of a bribe?

Norman P. Ramsey:

It is, Mr. Justice Marshall, my answer to that would not be a direct when it would be this sir.

You would be testing motivation if you say that a given phase of legislative conduct whether it be committee discussion, whether it be a report written by a given Congressman was motivated in one way or by one set of circumstances.

You then fall within the ambit of speech or debate.

Thurgood Marshall:

But what has speech and debate got to do with taking a bribe?

Norman P. Ramsey:

The taking of the bribe is in the concept of an indictment like that before this Court sir.

Thurgood Marshall:

Well, is speech or debate mentioned in the indictment?

Norman P. Ramsey:

Oh!

No, it’s not.

You are asking me sir whether it is said in indictment that a particular speech was made as a —

Thurgood Marshall:

No, does the word speech or debate or anything closely resembling it in the indictment which is the one thing that we have before us?

Norman P. Ramsey:

Now, I will have to answer that directly sir, that is not in the indictment.

Thurgood Marshall:

And that’s all we have [Voice Overlap] is that he took a bribe, even if he never made a speech about anything.

Norman P. Ramsey:

Well, I respectfully submit Mr. Justice Marshall.

Thurgood Marshall:

As in understand, your position when the member of Congress takes a bribe of any amount of money and then makes a speech, he is in a different category from anybody else in the United States?

Norman P. Ramsey:

No, he is in the same category as any other Congressman who does the same thing that’s subject to penalty in his own House, which has the right to question him.

Norman P. Ramsey:

But he is to be questioned in no other place if the language is keen to debates sir.

Thurgood Marshall:

Can he raise that if he doesn’t make a speech?

Norman P. Ramsey:

If he does not make a speech, then we are back to the inquiry of the breadth of speech or debate, are we strictly talking speech or debate?

And we say since Kilbourn in 1881 (Voice Overlap)

Thurgood Marshall:

So far as I am concerned, my ambit of speech and debate at least stops at the bribe.[Laughter]

Norman P. Ramsey:

Let me put it this way Mr. Justice Marshall —

Thurgood Marshall:

This is like a freedom of speech case.

A man has a right of freedom of speech but that doesn’t give him the right to act illegally.

And this is the act solely, the act of taking a bribe.

That’s the only thing involved in this case.

And don’t you agree that that point was left opened in Johnson?

Norman P. Ramsey:

No, I would say, what was left opened in Johnson, Mr. Justice Marshall was the issue of whether there was an outer perameter where this Court, will say that speech or debate does not protect.

But in this instant case, speech or debate has an applicable principle was conceded before the lower court.

Now, the practical matter, the issue is posed in this fashion in the lower court.

They say, we say it was legislative activity.

They would motivate it in his legislative conduct by the acceptance of improper sums of money.

We say, and this is the trust in lower court and also in the government’s original brief in this Court, that this however falls out of that heartland of speech or debate and is within the exclusion which this Court reserved when Johnson was decided.

We say to the contrary that on that issue as posed before the lower court that what was done in this case and the facts that alleged in this case falls squarely within what was covered by Johnson and do not fall with any exclusion.

We do not say that it is not possible to postulate a situation which will take it to the outer limit or speech or debate and beyond the outer limit of speech or debate, so that there may be an indictable crime.

But as was said in the Johnson case, it is our position that speech or debate extends at least so far as, and that is the language of this court in our opinion.

And we say it does clearly extends so far as to protect against inquiry as respects legislative acts under the circumstances of this case, and that is the way in which this whole issue came up.

These assumptions, these hypotheses, these hypothetical illustrations were never part of the case when it was before Judge Hart.

And there is no doubt in my mind that this Court can and will, on some occasion, take the Speech or Debate Clause, analyze and find it without application to certain sets of conducts as for example in Burton and as in Johnson, where the conduct is not related to legislative act but it is related to executive.

We agree that that is the fast ruling of this Court —

Warren E. Burger:

But is it not a routine function of Congressman to advocate propositions and to importune officers of the Executive Branch to do one thing or another for their constituents?

Norman P. Ramsey:

I suggest sir that Senator Burton would have love to have Chief Justice express similar opinions back at the time of this case, but I think that decided, I think that the executive —

Warren E. Burger:

I’m speaking of the factual matter, isn’t that–?

Norman P. Ramsey:

But it is not a legislative conduct as (Inaudible).

The legislative process, turning as it does necessarily to the absorption of the representative, by of his various constituents’ wishes and desires of the need to represent them in connection with subject matter which come before for political judgments and for judgments as respect to policy, he must be free and he is indeed free.

And this is a significant aspect and the significant posture of a senator or a congressman in this regard.

Norman P. Ramsey:

He must always be open to suggestion, to pressure.

He must always be open to the possibility that an executive desiring to penalized someone who has voted against the executive, may wish to posture him against his voting record, with his list of contributors, with an inference to follow, if unfriendly Grand Jury chooses to draw it, that there is a necessary connection between the assemblage of the money necessary to win a campaign and the favorable votes be it on fishing, be it on oil, be it on what may it be.

Warren E. Burger:

Now you spoke, Mr. Ramsey, of some of these hypothetical situations not being before the Court, the District Court, which is of course true, but that’s because, in part, no evidence was taken.

The case never reached that point, is that not so?

Norman P. Ramsey:

It is because, if you please Mr. Chief Justice, it is because the government postured its case before the District Judge and said, we expect to prove this case by proving legislative acts of Senator Brewster and the judge took their representation if this was so, it became a concession of record and it was a concession predicated on known facts, known to the judge, known to counsel, and his opinion expressly stated based on that facts of this case, so that it was not simply a case of taking up hypotheticals.

The Government had not postured either its indictment or it is a presentation on the hypothetical ability to reach outside and find some circumstance which we permit the drawing of a claim that it was outside speech or debate.

It had challenged the lower court by bringing in any indictment squarely designed to fall within speech or debate as Johnson defined it and put the issue to the District Judge to say that this was a narrowly drawn statute.

That’s exactly the way they attend to the posture it, sir.

Now under those circumstances, it was clean and clear that they post the issue to the Trial Court, are you now willing to say that if we take a statute which we deemed to be a precise narrowly drawn statute that you will say that speech or debate must surrender to it.

And that was the way it was before the Court and the facts were before the Court at what was being challenged with legislative conduct of the senator.

William H. Rehnquist:

Mr. Ramsey —

Norman P. Ramsey:

Yes, sir.

William H. Rehnquist:

Isn’t the logical import vote of Judge Hart’s ruling below and of your argument here that Congress cannot, under any circumstances, provide with the a judicial prosecution of the taking of a bribe by a member of Congress?

Norman P. Ramsey:

Mr. Justice Rehnquist, I do not believe that that is a necessary corollary.

I think, by the reservation which was made by the Court in Johnson, it was indicated that there might be an area where such a bribe could be penalized.

We argue as you are aware sir, in our brief, that it being a power granted to each of the houses, to inquire into motivation of members and not granted to the Houses as Houses of Congress to legislate on generally, that they cannot take away the power which the people gave or the protection that people gave their representative.

But coming pass that point, I would say sir that, in for example, the bribed Congressman’s immunity from prosecution which is common in all private law review fights extensively and is one the leading works dealing with the subject matter.

Now, the suggestion made that a properly drawn statute might be structured which could permit it.

We are somewhat ambivalent on that, since we argue that there is no constitutional power to delegate that right, the Section 5 right, over to the Courts for inquiry.

But basically I would say, yes there may be a chance, Mr. Justice Rehnquist where it could be done.

William H. Rehnquist:

What sort of a situation would that be consistent with your own position?

Norman P. Ramsey:

Well, as a practical matter, I would think that some of the — in the first argument in this case we have a series of hypothetical questions to counsel for the appellee and it was an attempt really to move away from the heartland of speech or debate, and outward.

Mr. Justice Marshall poses a somewhat similar problem.

Are we at the outer limits of speech or debate, where a bribe is a accepted and agreed to where there is no need to introduce any evidence concerning official action taken, any official vote given, any official resolution granted, any official speech given, are we going to reach the point where that the Court will now say, you are sufficiently away from inquiry and the legislative acts that we should sustain the prosecution?

William H. Rehnquist:

Well, do you mean that there would be a permission for the government to prove an agreement of the nature you’ve just described so long as there’s no need to any inquiry whether it was performed or not?

Norman P. Ramsey:

Well, I would say that, I understood your question to be sir, if I could postulate a circumstance.

I am not saying that it is only circumstance.

I would suggest this to you sir, that if the indictment was premised on a set of facts which would permit proof, that a given man had agreed to take a given bribe and then he did nothing that you might possibly be able to sustain the indictment because the agreement itself constituted the bribe.

But, where you have, on the other end of the edge line, that is to say that he was alleged to have taking a bribe to be motivated to vote for and did vote for, then you open up inquiry and to the very area of his conduct which is proscribed by speech or debate.

William H. Rehnquist:

Well, take your first case where you say he took a bribe and did nothing, certainly bribes aren’t given without some contractual understanding of a performance.

William H. Rehnquist:

Even in your first case where he did nothing, there would have to be in an agreement by him to do something and it would not be a bribe as one commonly understands.

Norman P. Ramsey:

Well, this is why the outer limits of the problem as I say.

We focus our attention on them as wholly by virtue of hypotheticals from various Justices of the last hearing.

We think that focuses on the wrong issue in the case that is not this case as we can see.

This case is differently postured.

William H. Rehnquist:

But we got to apply some sort of a rational standard that is capable of being applied not just to this case but to other cases too in order to reach a result, don’t we?

Norman P. Ramsey:

I quite agree that the Court is correct in trying to test the outer reach of any decision which it makes.

But I remind you sir that this case is before the Court under the Criminal Appeals Act on the facts of this case.

Thurgood Marshall:

On the facts of this case is an allegation in the indictment that he did vote that way?

No?

It’s nothing in there that says — am I right?

Norman P. Ramsey:

That there is something in the record of this.

Not in the indictment sir.

I have never been in that provision.

Thurgood Marshall:

Unless it’s before us.

Is the indictment was before us.

Norman P. Ramsey:

I am sorry sir?

Thurgood Marshall:

The indictment is all we have?

Norman P. Ramsey:

No, I do not believe that the indictment is all we have Mr. Justice Marshall that has been our point.

The indictment clearly does cover action, vote, and decision.

In other words, the indictment says–

Thurgood Marshall:

I thought the indictment covered what he said he was going to do.

The indictment did not say he did it.

Norman P. Ramsey:

The indictment covers his action (Voice Overlap)

Thurgood Marshall:

Well, suppose the Senator had taken money, $5,000.00 from each side, would he be covered?

Norman P. Ramsey:

You postulated the same hypothetical to me at the last theory and again I would have to give you, Mr. Justice Marshall, the same answer which I gave.

It depends on whether this indictment which is challenged and which is before the Court would require proof as respects to his legislative conduct thereafter.

If that be so, then we say (Voice overlap)

Thurgood Marshall:

Couldn’t’ it be that under Johnson, all that government had to prove was that he took a bribe for the expressed promise of doing something and that was the crime.

Regardless of what he did thereat.

Norman P. Ramsey:

I do not, sir, read Johnson if, Mr. Justice, you are stating out as a whole in Johnson.

Thurgood Marshall:

No, I said that was left open in Johnson.

Norman P. Ramsey:

No, I do not believe sir that is what was left open in Johnson.

What was left open in Johnson was, as this Court put in an opinion, “We live for another day.”

Thurgood Marshall:

But what is the crime he is being charged with?

Norman P. Ramsey:

He is being charged with, under this indictment?

Thurgood Marshall:

Yes, sir.

Norman P. Ramsey:

In this case sir, he is being charged with bribery and with aiding or abetting.

It is under 182 which is the aid or abet provision under 201 (c) or (g).

Thurgood Marshall:

Well, how about the bribery?

Norman P. Ramsey:

201 (c), sir.

Thurgood Marshall:

And what did the Government have to show us then that he took the money for the purpose of promises to do so?

What else has the government have to prove?

Norman P. Ramsey:

The government alleges, in this indictment, that —

Thurgood Marshall:

What else that the Government have to prove?

Norman P. Ramsey:

I would suggest, sir that the Government must necessarily prove that it was to influence him in the performance of an official act.

Thurgood Marshall:

It was for that purpose?

Norman P. Ramsey:

That is correct and that is the allegation.

Thurgood Marshall:

And that’s all the Government has to prove?

Norman P. Ramsey:

And that act would say —

Thurgood Marshall:

And the only speech that government has to show is that Senator Jones’ speech was, “Give me $5,000.00 and I’ll vote the way you want me to vote.”

That is not the time speech I think is covered.

Norman P. Ramsey:

I am suggesting to you sir that what was done in this case was that the legislative conduct has alleged in his action, vote and decision, or what they intended to prove and that is the very area of inquiry which is foreclosed by speech or debate.

Now, I am not suggesting that the way that is foreclosed by speech or debate is the conversation having to do with whether or not a bribe would or would not be paid.

I am saying that government said, in this case, we intend to show the receipt of campaign contributions because the first in count, which the Solicitor General selected as typical, and which I will use as typical if the Court will keep in mind that count nine has a slight variant and it refers backward to the receipt of moneys there for as distinct or action taken there for to as distinct from anticipated action.

It is alleged in this indictment that the defendant sought, accepted, received and agreed to received the sum of $5,000.00 for himself and for an entity the DC Committee for Maryland Education.

A political fund in other words, it is what is alleged to be involved.

Then we go on to say and we intend to show that this was in return for being influenced in the performance of his official act.

In respect to his action, vote and decision and it was to that subject matter that Assistant United States Attorney addressed himself, when asked by the Court as to whether the act which were challenged were legislative in nature and he said, “Yes sir, they are,” and that was in accord with the understanding of everybody concerned, that there were legislative acts.

And that being the case, it is perfectly clear that this was an attempt to precisely stage this case for that decision.

Norman P. Ramsey:

It was so decided and not all square in Johnson.

Warren E. Burger:

But we’ll never know what the Government would rest its case on unless there is a trial, will we?

Norman P. Ramsey:

Well, I suspect sir that very many times the great confident Trial judges aren’t perfectly willing and indeed need to rely on an open concession such as was made by the Assistant of United States Attorney in this case that it was legislative conduct which was challenged.

And that against the background of a fully known revelation to the trial judge of precisely what factual data that government intended to prove which they supplied as they say is pre-handed fashion to the defendant but did not put into the record because of the very good chance of pretrial, prejudicial publicity in a case for trial then pending shortly after the hearing date of the motions which were then before the Court.

And it was, as I suggest to the Court, a perfectly useful, desirable, and necessary proposition that courts proceed on this particularly areas whereas the Court said in Powell.

The Congressman should be relieved of the obligation to defend himself.

There is, under the decision of this Court, no constitutional basis for making a crime out of conduct where you must necessarily go to motivation for legislative conduct in order to prove that a given sum of money was received or had by a particular man in question by reason of a specific motivation on his part.

Warren E. Burger:

Mr. Ramsey, you may continue.

Norman P. Ramsey:

Thank you Mr. Chief Justice and may it please the Court.

In order to put our position in this case in proper context, I think I return to the basic principle from which we rely may be help.

First of all, we premise our argument on the announced concept as laid down by this Court, that one of the functions of Speech and Debate Clause is to relieve the senator of a duty of expanding itself.

That is announced in several of the recent expositions as respect to meaning of speech or debate.

We further would state to the Court that this imposes a duty on a trial of such cases or one before in such case comes to inquire into the case which is intended to be made by the prosecutor against the defendant on the particular facts of that case.

Now keep in mind, if you will please that our opposition is that if there is an interrogation which is violative of speech or debate, and an indictment has already been returned or has been at least one violation of speech or debate in the very inquiry which was the underlying, critical for the indictment which is returned.

Therefore, the rules of the District Judge before such a case comes, to look to the facts of the case, to look to the indictment, and to see whether what has been done, is a set of circumstances which leads to application of speech or debate and which are properly to cause him to enter into the case for the purpose of dismissing it because he has an obligation to honor the senator’s right, not to be called upon to defend, if the case is violative of speech or debate.

William H. Rehnquist:

Mr. Ramsey?

Norman P. Ramsey:

Yes ,sir.

William H. Rehnquist:

Why could it not that be treated simply as a matter of privilege that is forbid the inquiry if one seeks to make the inquiry during the trial rather than throw out the whole case?

Norman P. Ramsey:

As a practical matter, Mr. Justice Rehnquist, the way we see it and what we premise our argument on is a direct quote out of the Johnson case and in that case this Court said, “Speaking thereof conspiring to give a speech in return for a compensation from private sources.”

However reprehensible, we believe that the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge. Speaking backward through the quality of that as it sufficiently indictable basis.

And I think the policy considerations sir, which is behind that is simply this, the clause is designed to prevent harassment of the legislator by either an unfriendly executive or by an unfriendly judiciary if that be the case.

But in the first instance, the Grand Jury investigation.

It is to shield him from being hailed in before the Grand Jury, queried as respects to his motives.

Now, if I may postulate a case which is illustrative, I think it would run this way, if the court does not vindicate speech or debate as stopping Grand Jury inquiry, is it not perfectly possible for an unfriendly prosecutor to hail in any member of the Congress, put before that Grand Jury a list of the contributors who contributed to his last campaign and within the frame or reference to the bribery statute, then put against that testimony that a given Senator and/or Congressman voted, in a particular way, favorable to the very interest who had contributed so heavily to his campaign funding at the time when he ran?

Now, from that, it would be postulated that you may draw the inference that the vote favorable to whatever interest it may be, could be said to be or an inference could be drawn that it was predicated upon the earlier contribution of money to his campaign.

It is this peculiar aspect of the elective process the need of the representative to get himself elected which sets apart the legislative from all the balance of government with the exception of, of course the president and vice president who are in a position where they necessarily are participants in political campaigns in order to become elected representatives of the people.

But basically, we think the policy is cleanly stated and we think the policy a wise one in that, the essence of the charge again is this Court said in Johnson, and speaking there to the Johnson charge, in this context, is that the congressman’s conduct was improperly motivated and as well appear that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.

Now, coming back to my original view of the matter, I would say, sir, that we approached it this way, the Court owes an obligation because of the prayer, the Court I am talking now the Court hearing such a case, owes was an obligation to examine the facts.

In this case, it was conceded by the government and found by the court that a necessary root of the case was inquiry into legislative conduct.

And it was at that stage that Judge Hart granted the motion.

Norman P. Ramsey:

Now, the price of the prosecution to this sort is, that it would seek to have a finder of fact, usually a jury but not necessary so, to draw inferences between the campaign funds on the one hand and positions taken politically.

Judgment calls by a man who makes policy, by a man who does indeed address himself to consideration which are based upon the well being of those whom he represents.

Warren E. Burger:

Now, Mr. Ramsey, that language that you just alluded to or paraphrased from the Johnson opinion, wherein the context of a discussion of an alleged payment for making a speech on the floor of the House that has quite a bit to do with it, does it not?

Norman P. Ramsey:

Well, I would say sir that while you are corrected, of course Mr. Chief Justice, that they were in a case which dealt with that subject matter.

Warren E. Burger:

And in those particular remarks, I think were addressed to that general problem, were they not?

Norman P. Ramsey:

I think, I purported [Voice overlap] Your Honor, I may have been paraphrasing, but however reprehensible and I had interspersed conspiring to give a speech in return for payment by private individuals.

Maybe we believe the Speech or Debate Clause extends at least so far, that was of course in the aspect of the case where they were discussing a speech which was given by Congressman Johnson.

And I believe that was the Court’s inquiry to me and the answer is yes sir that is correct.

Warren E. Burger:

And this Court did not want to try to make the evaluation, the fact evaluation of whether the speech on floor of the house had influence the verdict as distinguished from other things that Congressman Johnson had done, isn’t that correct?

Norman P. Ramsey:

Well, I think Mr. Chief Justice, this Court sent the case back and said that if he could be purged of elements offensive to speech or debate, there was no reason why that could not be a proceeding which would go to the other aspects of the case.

But the speech was so thoroughly intertwined into the governmental evidence in the original case.

It was impossible to sort it out at that point and simply went back in the trials.

Warren E. Burger:

And he was trialed and convicted?

Norman P. Ramsey:

On such substantive accounts which in no way involve the speech and which frankly spoke only to those aspects of the matter which had to do with his having interceded in connection with executive affairs as distinct from performing legislative function.

Thank you very much.

Warren E. Burger:

Thank you Mr. Ramsey.

Mr. Solicitor General, you have seven minutes left.

Mr. Chief Justice and may it please the Court.

It seems to me that Mr. Ramsey unduly treats legislative act as synonymous with and absolutely the equivalent of speech or debate.

There is nothing in the constitution which relates and which refers in anyway to legislative acts and we submit that there are many acts which a legislator may do and may properly do as a legislator which are appropriate for a congressman or senator to do which are customarily done by congressman or senators which are not speech or debate and which are not within the protection of the Speech or Debate Clause.

If the Court should reach the conclusion that the Speech or Debate Clause protects a congressman or senator with respect to anything that he does after he takes the oath of office, our case would be difficult.

Although, as Mr. Justice Marshall has suggested, it is very hard to accept the conclusion that taking a bribe is a legislative act even within a very broad definition of that term.

As we see in this case, the case can be proved without bringing in to question any legislative act, any speech or debate, the only word in the indictment which gives me any pause at all is the word “vote.”

If the word vote were not there, if we now excise it, we make no use of it, I can find that nothing in the indictment which is in anyway in conflict with the Speech or Debate Clause.

It is suggested, turning to another matter, that the matter of punishing a Senator who takes the bribe is by the constitution committed solely to that House of Congress and that Congress has a legislative body, has no power to deal with that.

I should think that that was adequately disposed off by this Court’s decision in the Burton Case, some 60 years ago, where a congressman was convicted under a statute for taking fees in connection with appearances before the Executive Branch of the Government.

And more recently in Powell against McCormick where a similar argument has made, that the power of Congress of the House or the Senate to exclude was exclusive and that prevented the Court from giving a declaratory judgment on the matter.

Both of those cases seem to me to dispose of that contention.

And then finally, as has been suggested in the argument, it seems to me that the — or our position is here, that the offense was committed when the bribe was solicited or taken with the requisite intent.

It is immaterial thereafter, whether any action including even any legislative action that short of speech or debate was done.

The argument is that rather similar to that which was rejected in the case in the Second Circuit involving Judge Matten, or a part of the defense was–it’s a different statute, the case is not controlling but the analogy is close.

Part of the defense was that though we took the bribe, it didn’t influences decisions that all of the cases were decided right and a part of the charge which was sought to be submitted to the jury there was, that if the case where decided right, and then he could not be convicted.

That was–the argument that was rejected by Court of Appeals which Mr. Justice Sutherland sat and that the decision was that the taking in the bribe completed the offense and it was not necessary to show that the promised action was carried out.

Similarly here, the taking of the bribe, at least for the record was an intent, is the essence and the substance of the offense and as we see it, it is not necessary to prove certainly any speech or debate in order to maintain the prosecution accordingly.

We think the judgment below should be reversed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Thank you, Mr. Ramsey.

The case is submitted.