LOCATION: South Carolina General Assembly
DOCKET NO.: 25
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Fourth Circuit
CITATION: 383 US 169 (1966)
ARGUED: Nov 10, 1965 / Nov 15, 1965
DECIDED: Feb 24, 1966
Facts of the case
Media for United States v. JohnsonAudio Transcription for Oral Argument - November 15, 1965 in United States v. Johnson
Audio Transcription for Oral Argument - November 10, 1965 in United States v. Johnson
No.25, United States, petitioner versus Thomas Johnson.
May it please the Court.
Mr. Chief Justice, may it please the Court.
This case in here on writ of certiorari to the United States Court of Appeals for the Fourth Circuit to reveal its judgment, reversing on the conviction respondent for conspiracy to defraud the United States.
The charges against respondent which the jury and for that matter the Court of Appeals found established by the evidence, were that he used, that he took money to use his position as a Congressman in the interest to co-defendants represented so called independent Maryland Savings and Loan Association, first to make a speech on the floor of Congress and then to use his Congressional influence to bear on the Department of Justice to get it, to dismiss an indictment against his co-defendant and one of its companies, first calling.
The Court of Appeals reversed the conviction solely because it reached the conclusion that it was beyond the power of Congress to provide where the prosecution of a Congressman for taking money to make its speech on the floor of Congress.
It reversed the conviction on substantive counts, which did not involve the speech at all but only the representations to the Department of Justice, only because it felt that the evidence we laid into the speech part of the conspiracy might have influenced the verdict of the jury on the other counts.
And so the question that we brought to the Court and the only question that we think it's properly involved in this case now revolves around the taking of money to give a speech on the floor of Congress.
Well was there a new trial on the other phase of it?
It ordered a new trial on the other phase and we have not brought that issue here.
We referred in our petition but we did not argue it, I might say largely because it cannot be determined without reaching -- reading the whole record.
The question in this case which we did bring here and which we think it's a question involved is this.
Article 1, Section 6 of the Constitution provides that for any speech or debate in either House, no member of Congress shall be questioned in any other place.
And as we view it, the question is, does that Speech or Debate Clause means that Congress is without power under the Constitution to make it a crime triable in a court for a Congressman to take money to make a speech.
And the opinion of Court of Appeals --
Hugo L. Black:
May I ask under what statute Congress has made it a crime?
What Congress had, specifically made it a crime at what was formally 18 U.S.C. 205.
I think my opponent will dispute this, because he says if a speech wasn't have to a matter then pending it wasn't.
This indictment was brought under as a conspiracy to defraud the United States of the good offices of a Congressman in two parts; one to make the speech and the other to bring his influence to bear on the Department of Justice and so what was charged is the conspiracy under 371, but the way the Court of Appeals decided the question, it is no doubt I think if you will look at its opinion which is in volume 3 that it was deciding it very broadly, said it was beyond the power of Congress to make it a crime to take money for anything that came within the Speech and Debate Clause, which under this Court Kilbourn decision means more than speech.
It means speech or vote or committee report or anything in a sense which is official action and so that's the way that Court of Appeals decided the case that the Speech or Debate Clause by its terms made it constitutionally impossible for Congress to make the taking of money or bribery a crime for anything done within the protection of that clause.
And this would cover 205 as well as the aspect of 371 with which we are here concerned and now I think it is helpful both for the general problem on which case was decided and for this particular case, if we consider first that general preposition which the Court of Appeals decided and then turn to that particular fact that this case to see whether there's special problems arising out of the fact that it was charged under 371 or in the particular prosecution here.
The government's basic position is that a prosecution for taking money to make a speech does not question that speech within the meaning of the Speech or Debate Clause because what is being questioned is not the speech, but the taking of the money and the taking of the money of course is not official action and does not occur on the floor commonly.
I don't think analytically there can be any problem with that.
It's obvious that the taking of money is not something that's official action on the floor of Congress and I think that it becomes clear if one hypothesizes a situation where a Congressman, where the evidence is discovered immediately, let's say by a tape recorder and a Congressman is arrested immediately before he had given the speech for which he took money.
In that case he would come within a bribery statute.
He would be prosecuted for taking money to make a speech, but the speech would never had been given then the Speech and Debate Clause would never come into play.
Now of course we realize that the question isn't normally that simple.
William J. Brennan, Jr.: