United States v. Johnson – Oral Argument – November 15, 1965

Media for United States v. Johnson

Audio Transcription for Oral Argument – November 10, 1965 in United States v. Johnson

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Earl Warren:

Johnson —

George Cochran Doub:

Mr. Chief Justice —

Earl Warren:

Mr. Doub.

George Cochran Doub:

May the court please.

Before discussing how the executive power unluckily violated in trespass upon the legislative liberty.

In this case, I’m here to explain an important initial issue that really could be determinate here.

The government did not charge Mr. Johnson with conspiring to violate any bribery statute.

The government did not charge him with conspiring to violate any conflict of interest of the law.

It didn’t charge him in this first count that’s conspiracy charge with conspiring to violate any substantive law of the United States.

Thus, Section 205, the bribery statute which the government talked about a great deal was never involved in the trial of this case and was never, never before the jury.

As a matter of fact, it wasn’t even printed in a brief or either the government or for the defendant.

William O. Douglas:

Do you think it would -– that would have been broad enough to include these acts?

George Cochran Doub:

Sir?

William O. Douglas:

Would that have been broad enough to include these acts?

I’m not asking you to pressure yourself on that point —

George Cochran Doub:

Well, I’m just coming to that later Mr. Justice Douglas.

The bribery statute applies by its terms to the both—

William O. Douglas:

That action too —

George Cochran Doub:

Both action or decision I supposed.

William O. Douglas:

I said conversing and speaking is a form of action.

George Cochran Doub:

We would say no, Your Honor.

We would say that speech and debate was left out of that statute and could only be interpreted as -– in it was specifically mentioned in it.

And also, that statute only applied to matters both decision or action with respect to matters pending in the Congress.

In this case, Mr. Johnson’s speech was unrelated to any matter pending in the Congress.

William O. Douglas:

Well, that maybe an interview.

Hugo L. Black:

What would that can be?

George Cochran Doub:

Sir?

Hugo L. Black:

What would you think action, the word action include?

George Cochran Doub:

Well, I think it could include actions by committees of the Congress, appointments to committees, rulings by the presiding officer.

All those things could be action.

George Cochran Doub:

But could I come back to the —

Hugo L. Black:

(Inaudible)

George Cochran Doub:

Yes, I think so.

William O. Douglas:

Well, Mr. Doub, I understood you to say that there was no action of any kind of pending –- was there no investigation of savings and loan associations before the Congress at that time?

George Cochran Doub:

No, there were bills pending.

William O. Douglas:

No, I didn’t asked if there were any bills pending I asked if there’s any investigation or any companies interested in those sense?

George Cochran Doub:

Well, there’s never been an reference to what by the government and there’s never – I’ve never heard of any, there was never any reference in the trial of this case if there’s — there was never any claim by the government, let me put it that way.

William O. Douglas:

I am just asking, I have no information on the side.

George Cochran Doub:

Johnson was charged, was violating an 1867 conspiracy statute, making it an offense to conspire, to defraud the United States in any matter that was Section 371.

So, the initial inquiry here is whether Congress in adopting that conspiracy statute intended that it should cover a conspiracy with respect to a speech in the House of Representative; preparation, source material, motivation, its causation and its publication.

Now, this conspiracy statute was invalid in a tax bill in 1867 is considerable evidence that it was designed to meet much publicized tax fraud which preceded the introduction of this bill.

But by reason of its general language, the judiciary quite properly held that it should apply to all frauds against the coin of contracts of the property of the United States because it said, conspiring to the fraud the United States in any manner.

And that valid interpretation is reasonable and logical and it’s been a great utility to the government.

Then in 1910, in the Harris case, this court said, well, it meant more than that, it manifest conspiracy to defraud the United States by obstructing the efficiency of government operations and then in 1923, in the opinion by Chief Justice Taft he said, conspiracy to defraud the United States means primarily cheating the government out of its property or money but secondarily, as obstructing lawful, governmental functions deceit, dishonest means or overreaching.

That stretched the statute for our behalf beyond anything known in the world of fraud extract it into the area of ethics, into the area of conflicts of interest.

Because now the -– that was an unparalleled expansion of a penal statute.

The obstruction of lawful, governmental functions of course has no real meaning; no meaning at all is a conspiracy to obstruct governmental functions by spending on the sidewalk in the District of Columbia.

Is it conspiracy to obstruct governmental functions to agree with others to follow the war in Vietnam.

This thing uses the word dishonest means an overreaching.

Dishonest means an overreaching have anymore meaning in the law that’s simple or wicked or unethical.

Potter Stewart:

What is this Mr. Doub, vagueness argument, is this a vagueness argument?

George Cochran Doub:

Sir?

Potter Stewart:

Is this a vagueness argument?

George Cochran Doub:

Yes, I’m leading up to the fact that assuming that you accept this remarkable interpretation that hasn’t been defended by single legal scholar in the country.

Well, assuming if this court does say that’s what the defrauding means, then we say that surely, you can stretch the accordion further and say that Congress intended to apply it to an alleged venal speech in the Congress.

Potter Stewart:

Is this an argument that what’s charged here is not within the reach of the statute even as extended?

George Cochran Doub:

Yes.

Potter Stewart:

As though an alternate argument that if it is within the reach as so interpreted the statute void for vagueness.

George Cochran Doub:

You see the District Judge instructed this jury that this charge meant or Chief Justice Taft said it in Hammerschmidt.

He said that the charge of violating the defrauding portion of this statute meant conspiracy to defraud the government by obstructing governmental functions by means which were dishonest or overreaching or chicanery and other appropriate words.

George Cochran Doub:

So, to sustain count one, the initial issue is, did Congress in enacting that conspiracy statute intended, it should apply to a conspiracy with respect to speech?

If Congress vital freedom of speech and debate to be at the mercy of a vague and imprecise, all inclusive charge under a general 1867 statute originally directed at frauds against the government’s coin and property and even probably just taxes.

Now, in turn you’ve thought us otherwise, there, members of a California Legislature which were alleged to have violated a civil conspiracy of law of 1871, as a matter of fact that law is more explicit far more than this vague indefinite catch all crime that Mr. Johnson was charged with under –- and you held the basic issue was whether Congress in enacting that statute intended to include within its coverage official acts of members of a legislature and you determine that Congress didn’t have that intention.

The court said this, did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of state and national governments here?

Did it mean to subject legislatures to civil liability for acts done within the sphere of legislative activity?

We can not believe that Congress is still (Inaudible) advocate of legislative freedom would impinge on a traditions by covered inclusion in the general language before us.

Byron R. White:

That was a –- not a constitutional decision was it?

George Cochran Doub:

Well, that decision was based on the fact — that’s right on the interpretation of a statute.

And in other words along Article I Section 6 prefers to relate only the speech and debate in the Congress the court deemed this tradition of legislative freedom of such paramount importance it extended of all the official acts of members not only of Congress but in this case of a state legislature.

This case doesn’t relate to acts of the state legislature and our case doesn’t even relate to official acts of a member of Congress unrelated to speech and debate.

This case relates to the hardcore, that guts of the speech and debate provision, utterances on the floor of the chamber of the Congress and then motivation.

Byron R. White:

Do you think it would slowdown the public debate, if this indictment were upheld?

George Cochran Doub:

I think it would be a disaster.

I think it would be – I am coming to that but may I just finish — I’d like to answer that in a moment.

In Eastern Railroad conference case —

Byron R. White:

The reason I have that is the man is not being penalized for anything he says and —

George Cochran Doub:

Well, we think he was but may I come to that in a moment just let me finish —

Byron R. White:

Maybe I just understood the facts, but I thought he was being punished here merely for getting money to make a certain speech.

George Cochran Doub:

Yes, that’s in the conspiracy charge.

He collaborated with others in preparing a speech and then he was compensated for making the speech, through the hired speech and that he cooperated in the distribution and reprinting of that speech.

All the things we say are forbidden by the constitution.

But may I just point out that in the Eastern Railroad Conference case where it was contended the antitrust laws applied to a conspiracy involving dishonest act, unethical conduct on the part of the Railroad to elicit anti-trucking legislation.

And there you said you would not assume that Congress intended to intrude upon this political area unless the act clearly so provides and this act doesn’t clearly so provide.

It says nothing about speech and debate.

I say, you take this accordion upon which the government can play almost any tune on it under Chief Justice Taft’s interpretation.

But you’ve got to expound it and stretch it the way beyond that.

Let’s say that the Congress intended to bring the ethics of Congressman within its goals.

Hugo L. Black:

Would your agreement go so far as to urge that Congress has no right to pass a law forbidding the taking of money for making a speech on the floor of Congress?

George Cochran Doub:

Well, I’m coming to that in a moment Your Honor but may I just conclude with this then I will deal with that.

I say that Congress had no more intention to apply the statute to hire speech in the Congress and he did to authorize an imposition in hearsay, that’s my first point.

George Cochran Doub:

And if that’s right then the decision of the Fourth Circuit which is unanimous should be affirmed that this was an invalid count.

William O. Douglas:

That conclusion, you maybe right but would you mind illuminating that?

George Cochran Doub:

Well, my first point is then that this conspiracy statute, Section 371 Mr. Johnson was charged of violating — was charged of violating any bribery statute or any other statute conspiring for the United States by obstruction its government functions making a venal speech from the floor of the House.

We say that that Congress never intended that that 1867 statute should ever be applied to this matter, to this subject matter.

That should entrench upon the right of freedom of legislative speech are effective.

Now, may I point out what the government actually questioned in this case?

What this evidence was?

William O. Douglas:

Before you get to that, I would like to know, I would like to know what is your position that Congress has no right to pass any law prohibiting a Congressman from taking money for making a speech on the floor of the Congress advocating anything–

George Cochran Doub:

Yes, Your Honor.

William O. Douglas:

That’s all I want to know from you.

George Cochran Doub:

Yes, I’m sorry but that’s very definitely my position.

And that there is a major distinction between speech and utterance in the Congress and other official acts.

Now, whether Congress can pass a valid bribery statute as applied to a vote I think is a very different subject — it’s not involved in this case but I think somewhat closer subject.

And the reason that we have state the life of our country on freedom on speech that there can be no inquiry and to why speech is made.

There can be no inquiry as to what purpose it serves.

The reason is that even a venal speech, even a speech influenced by improper motives maybe the truth, maybe sound, maybe right that’s why we can’t — would not stop coming those propaganda in this country just because its motivation maybe evil.

William O. Douglas:

We’ve also just take their lives on honesty of public officials in the office, have we not?

George Cochran Doub:

Mr. Chief Justice, there have been no widespread scandals of venal speeches in the Congress, no scholars ever advocated the great speech and debate clause should be limited and restricted, actually more crimes had been committed in the name of grudge.

Two dangerous words in this case, and I think they’re the most dangerous in our legal vocabulary.

One is conspiracy and the other is bribe.

Let me point out to you —

William O. Douglas:

I’m haven’t yet been able to see how if we sustain a part from the other points.

If we sustain this conviction how this would run against the spirit of the immunity from free debate?

It’s up on my head —

George Cochran Doub:

I’m just coming to it.

William O. Douglas:

You are always just coming to the —

George Cochran Doub:

I am here now –.

Mr. Justice Douglas.

The at a scene agreement that was charged in this indictment was an alleged agreement by Johnson to make a speech in the House, now, it didn’t stop there.

It was to make a speech in the House defending Maryland state savings and loans associations.

George Cochran Doub:

Now, we say this charge required an inquiry into the content of the speech.

Under that charge it was absolutely essential for the government to show that Mr. Johnson speech, what the speech on foreign policy, it wasn’t a speech attacking the savings and loans associations.

It was a speech supporting.

Because if the substance of the speech had been of a different character its content would have denied the charge.

In other words, the government in this case had to show content of the speech to establish the offense and so it put the speech in evidence and it didn’t put it in to any restricted purpose or a limited purpose, it just put it in.

William O. Douglas:

Mr. Doub, you mentioned that there’s no — no scholars have ever advanced this idea, has it ever been seriously discussed in Stoller v. (Inaudible) prior to despair, rather the Congressman has the right to accept money to make the speech on the floor of the Congress.

George Cochran Doub:

Mr. Chief Justice, the question is by what tribunal should it be punished by?

William O. Douglas:

No, I didn’t ask you that —

George Cochran Doub:

I mean, of course, he should be punished —

William O. Douglas:

I didn’t you ask you that, I asked you if the precise question that you present here has been seriously discussed in Stoller v. (Inaudible), because you haven’t brought in your statement — and ever advocated such a thing and I just wondered if that subject had been seriously discussed or —

George Cochran Doub:

Well, three law review articles have been published –- three law review articles have been published approving the Fourth Circuit decision.

William O. Douglas:

Yes, but I was thinking about before this thing –- this matter—

George Cochran Doub:

Well, I think you’ve got –- no, I don’t think so.

I don’t think so Mr. Chief Justice but you have to look to the great constitutional history involved here it’s never been a question of whether a Congressman should be punished for any penal act, of course he should.

In the case of speech and debate though our constitution reserves that area with discipline to each chamber of the Congress and each chamber can discipline and should.

As a matter of fact you’ll find the house of the Congress considered as an insult to the House for anyone to, for any member to accept a bribe for any official act he did.

And even back in the 17th and 18th centuries there are numerable such cases where they acted on such charges against members.

Abe Fortas:

Mr. Doub, the other aspect of this case as I understand it is the petitioner was charged with accepting money and thereafter on account of the acceptance of the money, making representations to the attorney general and the Department of Justice.

But now, I take it, you do not challenge the validity of that of that count.

George Cochran Doub:

No, those charges were — the charge was the violation of a conflict of interest statute which forbid a member of Congress from accepting compensation for rendering services before an executive agency of the government.

We never questioned that, the charge was right within the statute.

The whole factual issue there was this, when Mr. Johnson after being told that this charge against Mr. Edlin and first colony was outrageous have been inspired by competitors was unjust and it was undisputed, he’d been told that.

It was undisputed that he went to the – and saw the attorney general and told him that.

It was undisputed also that he told him he didn’t wish to interfere at all and all he was asking was to reveal the case on the merits.

And he then had other meetings with the head of the criminal division on the same subject and Mr. Miller said yes, Mr. Johnson told him that.

Now, the issue is —

Abe Fortas:

However, that maybe I take it, you don’t contend that he made a disclosure that he had accepted the money.

George Cochran Doub:

Well, I suggest Mr. Fortas, the whole issue was, was he paid for those services.

It was our contention, he wasn’t paid a cent, it was our contention that his legal fee -– the sums of money which he received in 1961 from March on were all legal fees from several land companies and from several savings and loan associations that he represented for legal work done.

We didn’t rest on merely his own testimony as to his legal services for them and Mr. Robinson but we brought in six lawyers, one from New York, one from Washington, one from Baltimore, one from southern Maryland but generally all of them to testify the certain aspects of his legal work.

George Cochran Doub:

So the real issue under the substantive counts was, did those payment or those fees include payment for going to –- making those —

Abe Fortas:

Well I take it, you’re pursuing that and I want to get your view as to what might conceivably be the important issue here, I take it but your position is that corresponds with that with the Court of Appeals, the Fourth Circuit that is to say that the count and evidence relating to the speech and so infects the conviction, that it cannot stand even though you don’t challenge the indictment on the basis of taking money for purposes of inducing the Congressman to make a representation to the Department Justice.

Is that your position?

George Cochran Doub:

Our position here is that this unlawful first count and the evidence submitted under it violated and did infect the jury’s verdict under the substantive counts, it was hardly contested whether he was paid for his trips to the department and we say that no one could say with assurance that the jury was not prejudiced by the unlawful charges as to the speech in the conspiracy count.

As a matter of fact, although the government reserved that issue, they never contested it in their brief here.

May I say this about this or about the evidence?

The alleged bribe of $500.00 to make a speech after Johnson had been defeated for reelection three weeks after the indictment by the republican opponent.

But when he got to trial, the $500.00 bribe became a political campaign gift.

It wasn’t paid under the table.

It wasn’t paid in cash.

It was paid by check with a covering letter and it was endorsed by Johnson over to his treasurer and he deposited it in his bank account with other contributions and he reported it to the Circuit Court along with all other contributions, so it was received, recorded, used and reported as in the case of other contributions and it was used to help elect John F. Kennedy and Lyndon Johnson and Congressman Johnson, like all the others.

I’m not going to go to into the evidence about this speech, except to say there wasn’t any evidence that Johnson ever agreed to make a speech for that small campaign contribution.

There wasn’t any -– and I don’t believe when you look at this record you can say that he did.

But we contend -–

William O. Douglas:

Was that the only money he received, $500.00?

George Cochran Doub:

That was the only money he received anywhere around this time of this speech.

Now the –-

William O. Douglas:

How much or told did they prove he took?

George Cochran Doub:

Well, Your Honor, the government never even contended he received any money except this $500.00 for the speech.

There were two checks paid to his office that he endorsed over to the public printer for the ordering reprints of the speech within the next 30 days.

Then there was a retainer paid to him in the fall, I think it was about September 1st, of $1,000.00 when he was engaged to represent, act as local council for Robinson, who is general council of a mortgage company in Florida and to savings and loan associations.

That was all for 1960.

The speech is made in June 16.

Now in ‘61, he received -– he did a lot of legal, he received a lot of checks -– as a matter of fact, I would say they totaled, I think about $19,000.00.

Out of those checks he paid local council in Virginia and in southern Maryland about $6,000.00, a local council in Baltimore $1,000.

He had the responsibility of foreclosing a 15 million-dollar mortgage.

But the speech itself was related to a subject of major interest to the state of Maryland.

It didn’t relate to an Idaho power dam that Mr. Johnson couldn’t have any possible interest in.

You will find it’s an able speech, an intelligent speech and it’s a good speech and it was one that any Maryland Congressman would logically make after the –- in his paper article calling all Maryland savings and loan associations (Inaudible).

I think, the essential issue here, the court please is whether the speech and debate clause prohibits an inquiry only into what it said in the Congress as the government contends.

George Cochran Doub:

But whether it prohibits an inquiry into why it was said.

As we contend and the Fourth Circuit held and we say that the making of any speech involves a speech process and that certainly includes its purpose of thinking behind it, its preparation, its motivation, source material, and its use.

All should be within the clause and this nearly raised the antecedent agreement to make a speech.

We say that’s an integral part of the speech process and we say to deny this is just to emasculate and destroy the constitution.

Hugo L. Black:

You haven’t quite got into the question I asked you some time ago.

Do you contend that if the he just took money for making a speech that the Congress could not prohibit that?

George Cochran Doub:

The congress could act on it itself in discipline and then –-

Hugo L. Black:

Couldn’t make a crime for —

George Cochran Doub:

No, Your Honor.

I don’t this is consistent with the great dramatic legislative history of the speech and debate clause prohibiting anyone from questioning speech and debate and then its -– Your Honor, you’ve already said and told us that claim of unworthy purpose would not destroy the privilege.

You’ve even said dishonest official act.

So that’s what you said intending —

William O. Douglas:

Well, suppose we had a very simple statement of facts here and if we’re not to contest it and all the facts that we had were that Congressman A had agreed with certain interest that when he would make a speech on the floor of the Congress, for thousands of dollars and he was paid that money for that purpose and he was arrested thereafter — before let’s say his speech was made.

Would the Congress have the authority to proscribe such conduct?

George Cochran Doub:

I say no, I say no.

I say that would be in the same category as if a Congressman was charged with not speaking, being paid not to speak against a bill or for a bill and being silent, silence was just as eloquent with the speech.

So I say both categories, you’d be questioning a motivation of speech –

William O. Douglas:

Suppose that this was a tax case and he was being sued because he didn’t report this.

Suppose he was charged of having received $10,000.00 or whatever it was in that speech in the Congress and the Internal Revenue sues him, that would be inquiring about your theory into the speech I suppose –-

George Cochran Doub:

No, I wouldn’t.

That would be the receipt of income –-

William O. Douglas:

Beg your pardon.

George Cochran Doub:

That would be the receipt of income —

William O. Douglas:

That’s what this case is about, receipt of income.

George Cochran Doub:

Well, I think there’s a difference there.

I think –-

William O. Douglas:

Well, if there is a difference, I just wonder whether it is a material difference.

George Cochran Doub:

Well, of course it’s a hypothetical question case.

What you present and the Chief Justice presents are very different from the case, we have here.

I’m just speculating about it.

George Cochran Doub:

I would say that in the case of –-

William O. Douglas:

Well, considered that they have to introduce the speech, they have to show that the speech that was made and the funds that were paid and the speech therefore would be in the record just like in your case and therefore the speech would be an under-challenge and inquiry by your standard?

George Cochran Doub:

Well, if that occurred then it would still be in my position.

It couldn’t be done.

William O. Douglas:

So whatever the tax immunity case —

George Cochran Doub:

Actually, in the case, Chief Justice- – it’s hard to conceive and visualize the case you mentioned.

As a matter of fact, 300 years there’s never been such a charge as this.

What do you find if anything in the early in this case on this question?

George Cochran Doub:

Mr. Justice Harlan, the history and it’s the most dramatic history of any constitutional provision we have and the best documented and the most colorful.

It shows there was no distinction between content and motivation.

It shows that this new found effort of the government to say that there’s a –- that the constitutional provision was only designed to protect the substance, the content of speech.

We say that that’s denied by the history because the most famous case in England didn’t even relate to content.

Are there any in these cases that view bribery of members of the Parliament?

George Cochran Doub:

Never by the judiciary.

There are plenty of cases and –-

No, I’m talking about the judiciaries.

George Cochran Doub:

No, Your Honor.

The crowd has never brought such a charge.

And we have pulled together more comprehensively and we think for the first time in whole history of this and we believe you’ll find that everything that Peter Wentworth said and Elliot said and other great parliamentarians and everything we say that the House of Commons said in its (Inaudible) deny this distinction between content and purpose.

The most significant case is a case form the 16th century, where the crown charged a member of commons, with introducing a bill to regulate the tin industry and he was charged with having a financial interest in the bill.

The content wasn’t involved.

He was convicted.

The House of Commons attempted to annul that conviction indeed and they also at the same time said that they were -– these charges were invalid.

The judges — and from that time on, the parliamentarians contended that this (Inaudible) Act was a general act applicable to all members of congress, all members of the House of Commons and applicable to — and denying the crown any authority to make any charge of any kind whether inquiring into their acts in their chamber.

William O. Douglas:

Would your argument lead us to the conclusion that Congress has no right to make bribery of a Congressman, a crime?

George Cochran Doub:

Outside of the field of speech and debate, and I’m clear as to that that they can’t do that.

But outside of that, when you deal with official acts other than that, I think when that case is presented to you, which it isn’t here today, the issue will be, could Congress delegate or consent or wave the privilege?

And did it do so by the enactment of such a statute?

That would be the real issue.

Now, ordinarily when the constitution has conferred the power upon the Congress, Congress may delegate that power to the executive or even to the state, as in the case of the commerce power.

George Cochran Doub:

But you have a more difficult problem here because the speech and debate clause is not cast in terms of granting a power to Congress.

It says speech and debate shall not be questioned elsewhere.

So it’s a denial, prohibition of power in the executives and the judiciary.

So when you – if and when you reach that question, that will be a great question.

William O. Douglas:

What would your argument leave us to conclude, do you think?

George Cochran Doub:

This charge is absolutely violating from the speech and debate clause, this conspiracy charge.

It resulted as elaborate into Mr. Johnson’s mental processes, was he influenced by the campaign contribution or not.

Why in the Fourth Circuit the government’s brief said, surely the government did not have to prove that Johnson’s soul motive –- that Johnson’s soul motive was the campaign contribution or to aid Edler (ph) and Robinson.

I thought in the outset that this violated the clause and I think so still.

As a matter of fact, the publication, the allegations that he ordered reprints of his speech and was interested in their distribution.

That was a violation of the speech and debate clause.

You remember it wrongly, Mr. Justice Douglas and Mr. Justice Black.

The other judges didn’t reach the point to held that there could be no inquiry in the distribution of books.

William O. Douglas:

Suppose we wanted to include that the time in this case we spoke out that the Congress could pass an act making bribery a crime and suppose the Congressman was arrested for accepting a bribe and it developed in addition from voting, and developed that in addition to voting he had made a speech urging other Congressmen to vote as he did.

Would that immunize him?

George Cochran Doub:

I’m not sure, I followed you but I think I would Your Honor –

William O. Douglas:

It’s a very simple thing.

If Congressman A takes that bribe form Mr. B to vote for and urge, passage of a bill.

He accepts the money for it.

Then in pursuance of that, he not only votes for the bill, but he makes a speech on the floor of the Congress urging other Congressmen to vote for it as a part of the bribe.

Would that – the fact that he made the speech immunize against the charge of bribery?

George Cochran Doub:

Well, it certainly -– I don’t think the court and the executive could go into that speech.

Assuming that you hereafter hold in a case when the question comes before you, that the Congress can enact an anti-bribery statute applicable to official acts, other than speech and debate and assuming there’s a prosecution under that, I would still say the government could put an evidence of speech he made, even though it was related to it.

May I point this out?

Members of Congress, the elected representatives of the people, they necessarily accept and rely on in their political campaigns, upon campaign contributions.

In the case of a member of Congress, he represents the farm interests, his contributions will come from the farm organizations.

If he is a chap in civil rights, his contributions will probably come from associations interested in civil rights.

If he is a champion of labor, they will come from the labor unions.

Now, the power of the executive was such that a member of Congress in his legislative utterances, favoring or deemed the favor of special interest groups to contribute to his political campaigns.

But he was influenced by those campaign contributions or he may not have seen an agreement with his contributors to make a speech in the Congress.

George Cochran Doub:

I say that would be highly dangerous.

William O. Douglas:

Well, must we assume that this money came to Congressman Johnson as a campaign contribution?

I assume that you –-

George Cochran Doub:

No question about that –-

William O. Douglas:

I’m sure the jury didn’t believe that.

George Cochran Doub:

With all the covering letters said it was — it wasn’t -– it didn’t come under the table, it wasn’t in cash, it was openly made.

Johnson didn’t get cent of it.

Personally, he endorsed it over to his treasurer and it was deposited – treated just as all the other contributions were to his campaign –- but coming back to this, I say this charge alone that someone spoke in favor of the interest of someone who had contributed to — who had been a contributor in his campaign.

A charge could be politically destructive as it was with Johnson.

In spite of his presumption of innocence, he was defeated.

At the trial, a speech is conceded; a political campaign is conceded, so then, it’s necessary for the member of Congress in his defense to explain his mental processes, his bona fide purposes, his inner most thoughts, and to demonstrate that he would have said the same thing regardless of the campaign contribution.

And, I say —

And, a voting bribery case, should it make any difference if a man would have voted the way he did, if he hadn’t accepted the bribe?

George Cochran Doub:

I don’t think so.

I don’t think so

But wouldn’t the same — so far as that principle is involved, would it be the same thing so far as the speech is concerned.

No, because speech has a more fundamental purpose in the life of that country.

Speech would be restrained, it will be curtailed, and it would be inhibited for this reason, Mr. Chief Justice, no one would dare make a speech that could be interpreted as favoring the interest of a contributor.

You could speak against his interest safely and freely, but how could you dare say, “Defend the position of your contributors, ” that’s where you retrain and curtail freedom of speech.

But making contributions isn’t the crime here, this charge.

George Cochran Doub:

No, but that’s —

Crime here is —

George Cochran Doub:

That’s what the evidence showed it was —

Well, that’s’ something else but I mean in written — we’re talking here about is presumably about a case where the money goes into the Congressman and the Senator’s pocket, aren’t we?

George Cochran Doub:

Yes, yes.

He makes a crime and then they charge —

George Cochran Doub:

Well, that was — yes, so we have motions for —

Jury trial.

George Cochran Doub:

I’d say again that there is this distinction between voting and other official acts and speech.

I’d say, we have staked the life of this nation on the capacity of free speech to develop truth and to enable truth to gain acceptance in the marketplace of ideas.

George Cochran Doub:

And if that’s true for the ordinary citizen, surely it might — cannot possibly be less true for members of Congress, and whatever your ruling maybe in some future case on a venal vote in the Congress that issue is presented which it is not here, we submit that the basic uninhibited, free speech principles mean that it cannot be curtailed because of a charge that it was hired or influenced by a political campaign contribution or any other unethical consideration.

Are you suggesting that if you did not have a free speech, would they –

George Cochran Doub:

I have serious doubt, whether onto the First Amendment, a criminal charge could ever be made against the editor of a newspaper or any other publisher that involved in inquiry into his motives and whether they were honest or not in anything but that that publisher said.

Congress –-

George Cochran Doub:

No, I don’t think we need to go there.

I think it could be — I think it could be, Mr. Justice Harlan, but where you have on the one hand a general First Amendment right and on the other you have a specific, unqualified category clause in the Constitution dealing with speech and debate in the Congress, it seems to me that the Court would naturally look to the — and interpret the specific provision rather than the general one.

But even a hired speech, even a speech influenced by a campaign contribution or desire to aid private interest, the speech maybe right, it maybe convincing, and it maybe conducive to truth on its merits.

It maybe true and that’s why you can’t permit any inquiry into it.

If I have any time left, would Mr. Chief Justice, you permit my — Professor Louisell to use us that time?

I’d be very grateful.

I will Mr. Doub, and you may have an extra five minutes if you wish, Professor, I would give extra five minutes to Mr. Rosenberg, you may –-

David W. Louisell :

May it please the Court.

One of the things that has mystified me since the argument here on Wednesday is how, by the use of words, the impression can be conveyed to whatever the verbal formula that this prosecution didn’t involve a penetrating inquiry into everything we need, when we talk about speech.

The psychological, the moral, the human characteristics that go into making a speech, the involving as it does, the research, the preparation, the thinking, the balancing of interest, will I talk or won’t I talk and all that sort of thing culminating finally in the speech.

This Court, which has never been fooled at least in recent years by a mere terminology or evidence, as you pointed out in the New York Times case, we penetrate to the realities and we’re not satisfied by state characterization as a libel or treason or sudden some such thing.

Earl Warren:

Mr. Louisell, don’t we have the same realities insofar as the voting is concerned?

David W. Louisell :

When it comes to voting, Your Honor, note how specifically, first of all, the words of the Constitution are –-

Earl Warren:

No, so far as —

David W. Louisell :

For any speech or debate —

Earl Warren:

So far as realities are concerned and research and the voting independently and all of those things that you mentioned are concerned, do we not have those same realities and possibly more so in voting and we do in —

David W. Louisell :

To a degree, Your Honor, exactly states the situation.

Many of the same type of considerations are pertinent.

But notice the difference.

Notice that the function of speech, Your Honor, is to influence, to urge, to advocate, and notice that a speech may do that and they do so properly.

And, I think the reading of the text of this speech in the appendix will show you what an appeal, it was to common sense and judgment.

A speech is aimed at convincing and that is why the Constitution draws such a sharp dichotomy.

That is why the Constitution is willing to create an absolute barrier for any speech or debate, he shall not be held responsible in any other place and notice —

Earl Warren:

I have an idea.

Most people would rather have a vote on the speech though wouldn’t they?

David W. Louisell :

Well, but most people may prefer, Your Honor, it doesn’t seem to go the heart of the matter because it gives to speech and debate, that the English tradition of 400, 500 years has been devoted.

David W. Louisell :

It is to the absolute guarantee of speech and debate that our constitution is so absolutely committed.

Now, Your Honor, I asked the question, would the bribery statute necessarily call by a condemnation of what the government attempted to do here?

Then although it’s already been aptly pointed out that the bribery statute isn’t involved here, it is the penetrating question that forces an analysis and that is why, I maintain, it so important to study the history of the speech and debate, to the English years and to the Civil War period and into our Constitution.

And I maintain, it’s very important to realize, particularly on congressional intent, Congress has never tried to reach a prohibition for judicial purposes that is for prosecution purposes.

On speech or debate, it’s never made the attempt.

It has made the attempt to prohibit the bribery of a vote.

It has made that attempt and incidentally, I can find no instance in American history where there has even been a prosecution for the vote.

That alone for speech and debate, I had wanted to mention to the Court —

Earl Warren:

Does that mean there shouldn’t have been?

David W. Louisell :

Pardon.

Earl Warren:

Does that there shouldn’t have been?

David W. Louisell :

No, it doesn’t mean there shouldn’t have been, Your Honor, but what it means to me is this, that through most of — to all of American history up to this prosecution, the executive and the judiciary have been willing to abide the constitutional judgment, that the inappropriate place to penalize this sort of conduct that is alleged in this case is in the Chamber, and we all know how effective a disciplinary action by a Chamber of Congress can be in curtailing improprieties.

That’s the judgment of the Constitution and if it’s read against the background of the English history, I don’t see how there can be any other judgment than that of the Fourth Circuit reached.

Earl Warren:

Does your argument carry you far enough to say that Congress has no power then to proscribe as a criminal act bribery of a Congressman?

David W. Louisell :

It is not necessary to reach that conclusion, to uphold the Fourth Circuit.

By no means, it is perfectly possible.

Earl Warren:

But, is it necessary to –- if we follow your argument to its logical conclusion?

David W. Louisell :

If you follow the argument to its logical conclusion, and it maybe an excellent illustration that a page of history is worth a volume of logic.

Earl Warren:

Then let’s have a little logic for a moment.

David W. Louisell :

Even if you follow to its logical conclusion, Your Honor, and a perfectly driving type of penetrating inquiry to make, I’d still say no.

I’d still say it’s possible for Congress to condemn the bribery of a vote, but absolutely — by means of a judicial prosecution, but it’s absolutely impossible to make an inquiry into the motive of speech that is tuned over to the executive and the judiciary.

If, Your Honor, is that maybe, perhaps, the defect of the brief —

William O. Douglas:

Well, that would be true if — our question is what is the motive?

But, the question here is did he get a $1,000.00?

David W. Louisell :

But this is just burying the question of motive and basis for the speech, Mr. Justice Douglas, under the mere phraseology, if the Government comes up for the first time in this Court with have seen incumbent.

William O. Douglas:

You bury it by saying this isn’t the realm of motive?

David W. Louisell :

No, I don’t think it’s burying to inquire, what are the psychological realities of the speech-making process?

And to me, it came that you can have a prosecution of this kind in respect of everything other than the mere delivery of the speech is highly artificial to me.

Not always —

William O. Douglas:

Nobody’s saying that.

William O. Douglas:

All they’re saying is can you — can you prove the he got a thousand or ten thousand or what not for making a speech?

David W. Louisell :

But the proof of the effect of anything prior to the speech, the $5, 000 or the $10,000.00 when it’s an integral part, how do you prove that the speech was the consequence of it?

William O. Douglas:

Well, you would agree with Mr. Doub then, that this was an income tax case.

You couldn’t –- to get a deficiency assessment because you get —

David W. Louisell :

Your Honor, that has to be very precisely analyzed to course of a —

William O. Douglas:

This has to be precisely analyzed.

David W. Louisell :

If a Congressman gets $10,000.00, he’s obliged to report that as income — if it’s income.

Of course, he’s obliged to report it.

Could he be prosecuted for receiving?

Can he escape the fact that it’s income?

There’s no problem there.

He’s got to report the income.

If he’s prosecuted for evading it —

William O. Douglas:

Well, that sure would slow down in making speeches for money.

David W. Louisell :

If he’s prosecuted for evading it, Your Honor, there’s no inhibition of the Speech and Debate Clause except that the use of the contents of a speech, the use of the speech itself could not be an item of evidence under the Speech and Debate Clause.

If Your Honors will carefully note how many instances the Government depended on the contents of the speech, and I sat here in amazement, when I heard innuendo to the contrary during the prosecution of this case, as we point out first of all on page 28 of the brief, note the words of the Fourth Circuit.

After their careful analysis, the speech was more than an incidental feature of the conspiracy charge.

Only one half of the testimony introduced at the trial related to the speech.

Notice what we point out about the nature of the indictment.

By quoting from the indictment, on pages 29 and 30, how many of the overt acts were directly tied up with the speech making process, the delivery of the speech.

Notice that the fourth overt act in this indictment that we set forth on page 47 and 48.

The very thing the Government relied upon, Your Honor, the fourth overt act that on or about June 30th, 1960 in the District of Columbia, the defendant Johnson delivered a speech on the floor of the House of Representatives.

Notice what the trial judge charged as we set forth on page 68 of the brief that, “two separate conspiracies”.

The first, beginning on April 1, 1960, to defraud the United States of its governmental functions largely by the making of the speech by defendant Johnson and distributions of reprints thereof.

How much more connection can you have between the facts which a normal human psychology precede the making of the speech and the contents of the speech itself.

I think it’s almost demonstrable to an almost a certainty that the very contents of the speech, where the heart of this prosecution, and notice in the most famous case in this connection that Your Honors can read, the Strode case, it didn’t involve the contents of the speech at all.

It involved the alleged corrupt interest of a member of parliament in having a private interest in the bill that he introduced in parliament.

Then after generations of struggle in England, the Act that condemned the interference of the judiciary with parliamentary freedom there was made a permanent part of English constitutional history.

Let’s not — this Court has with penetrating realization of a necessity of protecting constitutional grants.

This Court has gone to the realities over and over again in the free speech area against the most emotional charges, against the claims of libel and slander and even of treason.

David W. Louisell :

We penetrate to the realities.

Let’s not feel that’s the word bribery, even though it can be uttered with the most base innuendoes.

Let us not permit that to hide the realities from us in this case.

Let’s remember we have a constitutional provision here that is as specific, as definite, as well founded in English tradition as any words that you can pick out of the Constitution.

And, lastly, let us never forget that there is something terribly sacred, significant, and basic in all provisions about speech, that it can be distinguished, that Congress has distinguished it by its own willingness to limit its condemnation to the three words of action, vote or decision but never has indicated any waiver, any desire or willingness to waive what the Constitution makes sacred, the Speech and Debate Clause.

I thank you.

Earl Warren:

Miss Rosenberg.

Beatrice Rosenberg:

May I please the Court.

I am rather surprised to find that the Professor is making a distinction between speech and vote for the purposes of the Speech and Debate Clause because the case of Coffin against Coffin which this Court decided in (Inaudible) as the authoritative decision on the Speech and Debate Clause makes it very clear in this Court’s decision in the Kilbourn against Thompson, decision in (Inaudible) made clear that the State’s Speech and Debate Clause covers all official action taken in the capacity as represented to speech, vote, committee report, anything of that character.

Now, to the English history, what’s Strode’s was a case of someone who in colonies introduced the bill regulating tanneries.

I think it turns now that one of the books that he was a tenant but nothing has ever turned on that.

What happened is that when he got back to his local district, where the act that he was in favor of would have affected the local industry.

The local Government, which was called the (Inaudible) tried to prosecute him for introducing these bills in Congress.

And the problem, I’m sorry — and at that point, Parliament passed this resolution saying that no — for what he did in Parliament, he could not be prosecuted, in this case by a local, equivalent to our county Government.

Now, that became — Strode case did become a kind of slogan case thereafter in the long fight between parliament and the crown, which I wouldn’t have to — have time to go and to now, but I’ve point out two things about the English history.

One is that the Speech and Debate, the right of Parliament to talk about anything — which was divided during Elizabeth’s time.

They question whether the Parliament could talk about the succession for the religious questions which are coming up.

That question was settled by 1689 in the English Bill of Right.

The period of the 18th century in England was a period when Parliament was trying to get for itself, not simply the right to talk about anything, but the right completely to regulate its own members and anybody that dealt with its own members.

And that period was a period, as a matter of fact, when the crown was trying to bribe Congressmen so they are not English prosecutions for bribery, but that alleged Parliament, the right of Parliament to govern itself and even govern people that dealt with it.

Exclusively, this Court has held was not taken over into American law and if it’s –as the Court pointed it out in the Watkins case, they founders of our Constitution were very worried about legislative excess.

They were — that was one of the things they tried to guard against and so, the Lex Parliamentary has never been part of the American law.

The absence of English cases therefore is not controlling, but it is interesting that the only time the questions of bribery statutes have come up for decisions.

There have been state bribery prosecutions but nobody raised any problems in the Speech and Debate Clause.

The only time that the question of the Speech and Debate Clause in relation to prosecutions for bribery of Congressman has been brought up are in three Colonial cases which are on page 34 of our main brief and in those, there was only one dissenting vote and the dissent was on the ground of Lex Parliamentaria.

The other three cases all have that — it was possible — they — some of them said that it was a crime at Common Law to take a bribe and all of them incidentally, in the English has been showing its relations to the Lex Parliamentary considered that if you couldn’t prosecute a Congressman for taking a bribe, you couldn’t prosecute the person that gave him the bribe.

That is their version, in other words, they approached the question pretty much.

Did come within the Lex Parliamentary or it didn’t.

And, as I say, this Court has made it clear from the time of the Anderson against Dunn, to the time of Watkins that Lex Parliamentaria is not a part of American law, which we took over from Great Britain.

So that from the purposes of the Speech and Debate Clause, I do not see that there is any possibility of drawing a distinction between the speech and above.

Beatrice Rosenberg:

And, as far as the actual coverage of 0205 is concerned, in 1862, when it was passed on the floor of the House, the expressions were said that it was comprehensive as man could make it.

As for the argument that has been made here that — well, it wouldn’t have come within 1205 because at that moment, there was no legislation pending.

That old Massachusetts Coffin case that the — even though it was physically said in the floor of the House, if it wasn’t in relation to legislative matters, it wasn’t with the speech within the Speech and Debate Clause, we have never contended that.

We admit that this is when the — that is the speech itself is within the Speech and Debate Clause.

It is our position that when you have a prosecution for taking money to give a speech, the act which is being questioned is the taking of the money.

Now, in that kind of a prosecution, we admit it will — it was brought out here and it was shown that the speech was given.

This was also alleged in the indictment but the prosecution rested on the proof that the speech was prepared with a purpose in line, that it was used for that purpose, that money did go to the Congressman.

And, let me say one thing about that, the theory — the reason this prosecution was brought under 371 and not to violate specific statute, was that it was the theory and we think it’s established by the evidence that this Congressman was, — I just want to say, put on pay roll to do the thing that were to be done.

The speech was part of that.

It was not all of it.

The rest of it and the most important part goes up later with the representations for the Department of Justice.

But, this does not mean that the Government takes the position that $500.00 was all that was given for the speech.