United States v. Johnson

PETITIONER:United States
RESPONDENT:Johnson
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

Question

  • Oral Argument – November 15, 1965
  • Audio 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

    Earl Warren:

    No.25, United States, petitioner versus Thomas Johnson.

    Beatrice Rosenberg:

    May it please the Court.

    Earl Warren:

    Miss Rosenberg.

    Beatrice Rosenberg:

    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?

    Beatrice Rosenberg:

    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?

    Beatrice Rosenberg:

    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.

    Normally —

    William J. Brennan, Jr.:

    [Inaudible]

    Beatrice Rosenberg:

    No, I am coming — the content of the speech was not relied on by the government.

    The only copy of the speech which the government introduced was a reprint, ordered by his co-conspirator.

    William J. Brennan, Jr.:

    Why was it introduced?

    Beatrice Rosenberg:

    Well, it would introduce to show it was one apart of the evidence, showing that money was taken for the speech, but let me point out that the reprint that was introduced was in at least one significant respect different from the speech that was given, because the caption was changed on the reprint.

    The caption on the original speech which the government did not introduce, dependent introduced the original speech, caption on the original speech was something like the Maryland Savings and Loan industry.

    The caption on the reprint that was introduced was Federal Savings and Loan leaves seek discretion of competitive independence and commercial mortgage insurance.

    Now of course the government gave evidence about the speech, it gave reasons about how it was prepared and what use was made of it by the co-conspirators.

    Of course it was the government’s theory that money was given to make a speech, but it was not, the content of the speech was not part of the governments plan.

    And they also say it came in a —

    William J. Brennan, Jr.:

    Well was anything that was said in the speech relied on by the government to support the conviction?

    Beatrice Rosenberg:

    After doing — not as part of government affirmative case.

    William J. Brennan, Jr.:

    Well at any time in the trial?

    Beatrice Rosenberg:

    Yes, after the defendant took the stand, he was cross examined about some statements in the speech and they were commented upon in oral argument, but if the government in its affirmative case did not rely on the content of the speech or the government relied on was on other evidence, but as I say leaning that out as the moment the specific problems here, the question was Court of Appeals deciding is not that.

    It did not decide simply that it was too much reference to the speech in this case.

    It’s said much more broadly that it is beyond the competence of Congress to provide for to make it a crime, to take money to make a speech and the reasoning of the Court of Appeals as I understand it is this.

    No matter how strong the evidence, even if the government never even introduces the speech, assuming the speech has once been given, as it would be in the normal case, no matter how strong the evidence the government introduces, any Congressman who can’t deny that he took money.

    Its of course would be the best, but assuming he can’t deny that he took money, he will be called upon to explain, he will feel compelled to explain that he gave the money – that he gave a speech not for money but for some other reason.

    And therefore taking the language out of cases like this Court’s decision in Tenney against Brandhove, which says that the motives of official action cannot be questioned.

    The Court of Appeals said you bring motive into the case, because the Congressman will feel compelled to explain his motives and that’s not the speech in debate clause, but as we see it, there is a big difference between this situation and Tenney and others like it [Inaudible] is that when you bring an action in libel which what Tenney was or where the Speech and Debate Clause got started, where the king brought an action for sedition or treason or criminal libel so that either civilly or criminally whenever this is done, the affirmative part of the plaintiffs case is that you prove the speech, the content of the speech.

    You prove that the contents were injurious, that it results in the injury, either to the individual bringing the action or to the state because the contents were treasonable or seditious in the old days and that this injury was caused by a bad motive and the Court said no.

    That’s too dangerous to free speech.

    They said and the reason of it I think it’s barely evident.

    The most noble test at most accurate speech that it can be made can result an injury to someone.

    I mean, it’s justifiable injury, but it is injury, therefore when you have to start and say this injury is a good motive or bad motive, that becomes court say too difficult.

    Because too many actions — they didn’t come a prosecutor brings for example, brings its lawsuit against this defendant to be injured, the defendant will be get in to jail, it’s too hard to distinguish if he’s doing it for a good motive or a bad.

    Its hard to say, is the speech reasonable?

    Situation is very different from bribery, because you’re not resting on the content of speech to show injury which comes from a bad motive.

    What you’re resting on is what I said in the beginning, you’re resting on the taking of the money and it doesn’t matter what the speech is about.

    The speech could be the best speech in the world, it could absolutely accurate in every degree, but the injury doesn’t come from the speech.

    The injury to the government comes from the taking of the money, that’s the injury and you don’t relay on the contents of the speech even to show injury or you don’t rely on the content of a speech as the foundation of your action.

    How can you impugn a speech more by saying that it was the product of the bribe?

    Beatrice Rosenberg:

    But you don’t rest on the speech, what you rests on is at the act.

    The orders of the case of Justice Harlan, you rest on the speech to show the injury and then you say I have been injured by the speech and it was not done for good motives, it was done for a bad motive, but the injury comes from the speech, in bribery the injury doesn’t come from the speech.

    The injury comes from the taking of the money and it points in this case.

    He made it a speech in favor of [Inaudible], which they use but suppose they had a different scheme.

    Suppose they have a scheme where one Congressman who’s supposed to make a speech for them and a speech against them, each took money because they wanted to make it appear, it wouldn’t make any difference, where the one was for them or one was against them, both would be guilty of taking bribes.

    The content of the speech don’t make any difference.

    The injury doesn’t come from the content of the speech.

    The injury comes from the taking of the money and that’s the essential difference between this situation and Tenney and I point out this is not really unique.

    We have a principle about judicial decisions, so for as an action for libel or action for treason are concerned the content of the judicial privilege is set.

    This Court held back in 231 United States that the principle that a judge couldn’t be sued for libel was so much of a part of our system of doing things that it extended to Philippines immediately without any — as by virtue of the Constitution without any special act of Congress and yet we’ve always had a statute from 1790 on, we’ve had a statute making bribery of the judge of crime, there had been prosecution to judges for taking bribe.

    The judges aren’t surrounded with the constitutional protections?

    Beatrice Rosenberg:

    Well as I point out Mr. Justice, this Court said that the principle that judges cannot be sued or that the content of – decisions cannot be sued for malice was at least so much part of our system of government, I think they consider part of separation of power, that they extend it to the Philippines as a constitutional right, the minute we applied it didn’t get the special statute of Congress.

    So it comes in, in a different historical way.

    There’s no question about that.

    It came in because judges in the sense were acting the way of not responsible to anybody about themselves and therefore they didn’t — they weren’t the problems.

    The difficulty — one of the problems of the Speech and Debate Clause I think is that side by side in the beginning with the development of the Speech and Debate Clause was the attempt by parliament to get himself completely out of the crown what was known as the Lex Parliament.

    And it is sometimes, there’s been a tendency to read some of the Lex Parliament into the Speech and Debate Clause and this Court decided in Watkins and had decided before that that that aspect, the power of the parliament just couldn’t be reached by the crown at all.

    It’s not a part of an American law.

    Watkins discusses this at length but and for that reason the the Speech and Debate Clause as I say had the different historical background, but if you look at the contents of it it’s not essentially different from the contents of the judicial privilege, which was recognized back in the cases are cited in our brief, but the one that I think is most significant is this Alzua against Johnson in 231 United States where the Court said that a judicial privilege of a judge against sue — with the claim of Maryland.

    Extended to the Philippines without just by virtue of the fact that we acquired the Philippines, it is one of those fundamental rights it didn’t.

    Hugo L. Black:

    May I ask you, if the court’s charge to the jury indicated that it’s finding of guilt should depend in any of those ways on whether the Congressman believed what he said?

    Beatrice Rosenberg:

    No, that didn’t come in.

    Hugo L. Black:

    Then as I understood it, if we’re to say that the government you say ends up any Congressman takes the money, and action was the speech he made, is guilty of the crime, even though he believed it wholeheartedly?

    Beatrice Rosenberg:

    If he takes the money to make the speech.

    Hugo L. Black:

    Well, if he takes money to make the speech, maybe he’s not — maybe he hadn’t intended to make it but he had used to make it, says I believe in it thoroughly and I will make a speech.

    He gives him the money, would that be a crime?

    Beatrice Rosenberg:

    Yes sir, Congress so intended I think — if we did that 201 has now been redrafted, the competence of interest statute had now been redrafted and what was 205, which made it a crime.

    Hugo L. Black:

    Made it a crime to accept money for a speech?

    Beatrice Rosenberg:

    Well yes, to accept money —

    Hugo L. Black:

    Where is that printed?

    Beatrice Rosenberg:

    It’s 18 U.S.C 205.

    It’s not in our brief.

    We have 281 but we don’t have 205.

    But, in our reply brief, oh, in our required brief, Your Honor —

    Hugo L. Black:

    Is that a general statute so we can go into that influence or did it specifically say that he accepted the money for making the speech, he’d be guilty about it–

    Beatrice Rosenberg:

    Well, it doesn’t say speech, what it says is it’s in our reply brief on the footnote four on page seven it says, — it provided for the punishment of any Congressman who agrees to receive money and now I’m quoting, “with the intent to have his action and so or the decision influence in any question, matter, cause or proceeding, which may, at anytime depending in either House of Congress or before any committee; thereof or which by law maybe brought before him in his capacity as such member.”

    Hugo L. Black:

    That means that if he agrees for money, knowingly to accept that money for the purpose of doing what he’s going to do in bad faith, doesn’t it?

    Beatrice Rosenberg:

    What means is he does it for money.

    Hugo L. Black:

    Right.

    Beatrice Rosenberg:

    It’s the same as if he voted for a bill.

    I think the situation is no different that if he took $500.00 to vote yes on a bill.

    Hugo L. Black:

    Bribed in to vote for a bill?

    Beatrice Rosenberg:

    That’s right.

    And, in the Manson case, which was a present judicial case, an argument was made, well, nobody shown that the judges’ decision was wrong and, the Second Circuit says, “No, nobody has.”

    As a matter of fact, proof indicates that he made a decision that he thought was probably right, but the fact that he did it for money, and not honestly, and to take the real purpose —

    Hugo L. Black:

    Was any charge here that he did not honestly believe what he said, that’s what I’m getting here.

    Beatrice Rosenberg:

    That was not part of the government’s case.

    I think there was — there was on course examination.

    They brought out facts which one could read this — that someone could reach this conclusion, but it was not.

    The government did not rest on that as part of its case, no.

    The theory of robbery statutes quite generally, as I understand it is, that if you take money to influence official action, this is true any parties, judges, prosecutors, executives, you take money to influence official action, that’s a crime.

    Abe Fortas:

    Miss Rosenberg can you read 281 as applying to proceedings in the Congress or before a committee of Congress?

    Beatrice Rosenberg:

    No.

    There’s a mistake Your Honor.

    I — 205 was not factored in our brief.

    281 referred — this thing you have to remember that this case dealt with two aspects, the conspiracy charge with two aspects, and all the substantive counts on the 281 where in the 281 made up with the representations before the Department of Justice.

    Abe Fortas:

    That’s what I thought, yes.

    Beatrice Rosenberg:

    And, somehow, 205 just didn’t get cited in our brief its former 205.

    The 201, 281 and 205 are both now incorporated in 201, which is the conflict of interest statute.

    Beatrice Rosenberg:

    It was reenacted in 1962, which the day after the crime here.

    Abe Fortas:

    Well, what statute am I supposed to be looking at?

    Beatrice Rosenberg:

    205 18 U.S.C. 205 in the 1960 edition and the only precedent is quoted.

    Potter Stewart:

    It’s old 205.

    Beatrice Rosenberg:

    That’s old 205, and it’s on page seven of our reply brief footnote four, the significant aspect.

    Note as I say this wasn’t charged directly under 205 let me make this clear.

    Potter Stewart:

    Yes.

    Beatrice Rosenberg:

    This was charged as the conspiracy to defraud to the United States because it was in two aspects.

    It was to [Inaudible] the United States to the good services of the Congressman and as a matter of fact, my opponent makes a big issue of that.

    But, this is the way it was done in Manson, it was done in Black, it was done May.

    It is normally done that way where you have a continuing conspiracy with several aspects because this was, the basic charge here was that he was bought to use the vernacular, to use his Congressional influence for his two co-conspirators and his Congressional influence was used in several ways one of which was, to make the speech and the other was, to bring his influence to bear on the Department of Justice.

    Hugo L. Black:

    But what you are saying in final analysis it gets to that, doesn’t it, the fact assuming that he made it in the probability to say it.

    But, then he violated the law was making the speech, for which he took money but you have to have the speech in it and assume that best thing to make a speech in favor of various thoughts, doesn’t it?

    Beatrice Rosenberg:

    No your Honor, I think, you have different [Inaudible]

    Hugo L. Black:

    And, then you’re here.

    Beatrice Rosenberg:

    We view with differently — we view with what was bad was taking the money and it was taking the money to influence his official action it was doing something for money, whether he would have done it otherwise or not is immaterial.

    And, this can’t fine true or not that the whole temptation of bribery law is for the whole purposes of free Speech and Debate Clause and the purposes of that the privilege is then recognizing so as to say we want people to exercise their best judgment.

    And, particularly, in the Speech and Debate Cause, the reason the Congressman are protected is that we want them to be able to speak for the whole people, for their constituents without fear and so on, but when somebody dissenting for money is exact opposite of the purpose of the Speech and Debate Clause.

    Hugo L. Black:

    You mean he may go ahead and doing what would be their duty otherwise to make the speech in favor of something they’re far.

    You say if they get some money for it, that’s a crime.

    Beatrice Rosenberg:

    Yes Your Honor.

    Hugo L. Black:

    But, you have to draw that from very language.

    I should think that that’s to be made a crime, honestly, to make the speech in order to be in pretty clear language.

    Beatrice Rosenberg:

    Well, I can’t — they think I — then, the legislative history shows that back in 1862, the Congressman thought they said it was as comprehensive as a man could make it or something of that sort.

    Hugo L. Black:

    Sometimes, they are so comprehensive if they don’t have the —

    Beatrice Rosenberg:

    But, I’d — I see – I don’t see for at that any different from any of the situation, you are private juror, it perfectly possible the juror might vote into [Inaudible]

    Hugo L. Black:

    Then, I would have to vote, that’s right.

    Beatrice Rosenberg:

    That’s right.

    It perfectly possibly might have acquitted anyway as I say we have a situation of Judge Madden who probably would have rendered the same decisions anyway one might have.

    Hugo L. Black:

    But, there was no — there was no constitutional provision that permitted Judge Madden to say what he say — said to that at that time.

    Hugo L. Black:

    There is a constitutional provision which permits the Congressman to make the speech or senator and it can’t be — and nothing could be done to him for it?

    You can’t base it on what he said in making the speech, can you?

    Beatrice Rosenberg:

    No, you can’t, base it on what he said in the speech but then– when couldn’t–

    Hugo L. Black:

    And yet it was the same [Inaudible]

    Beatrice Rosenberg:

    When he have done anything to judgment and for what he said as an opinion.

    It might have been much worse and what he said —

    Hugo L. Black:

    It’s essential to the conviction is that he made a speech in the Congress.

    Beatrice Rosenberg:

    No, it isn’t.

    Hugo L. Black:

    Where frequently people is not essential?

    Beatrice Rosenberg:

    No, suppose if — this — as I say it, I said at the beginning, if we have a situation where he took money to make a speech and never made the speech, if he was to prove it and at sometimes one can, there have been such situation, not with the Congressman but with —

    Would you got to do the — could you make your case without introducing the speech?

    Beatrice Rosenberg:

    You mean without introducing the reprints?

    Over that —

    Beatrice Rosenberg:

    I would —

    Over that I was I referring to the fact that he had made the speech?

    Beatrice Rosenberg:

    No, I think not.

    I think we have to refer to the fact that he made a speech but we do not have — we did not have to do this.

    Impugn in the contents?

    Beatrice Rosenberg:

    We did not have to prove the content and as I say the contents that we did prove, there’s no question, we did introduce the reprint, but the contents that we did introduce were the reprints and the reprints were at least so far as the type of what’s concerned and the significant part, significantly different, the type of it was different, the rest of the speech was [Inaudible] except that when the [Inaudible] is sent it out, they undermined it in red.

    But, I think it’s very different situation because I think the whole point is that the Speech and Debate Clause is out to protect the contents of the speech.

    And, if you look at every case in which the Speech and Debate Clause has been discussed.

    As I said before, you have a situation where the content of the speech are the foundation of the action, because it is the content which give you the injury.

    Well, I’ll come back to my other question it’s interesting that you [Voice Overlap] speech was called was in your [Inaudible] impugn the veracity of it that they have.

    When you make your prior good [Inaudible] aren’t necessarily drawing in question the good faith of the speech in the public –

    Beatrice Rosenberg:

    I don’t think you’re doing the good faith in the speech into question anymore than you are the good faith of the decision.

    If you say that —

    Well, is to that to the show that money was handed to some judge to make the decision to —

    Beatrice Rosenberg:

    Well, when you impugn a speech but that isn’t what the Speech and Debate Clause, I don’t think — but the Speech and Debate Clause without to protect was the right of a Congressman.

    I think all of the question and then the other [Inaudible]

    Beatrice Rosenberg:

    Yes, it is questioned on what he said, that you should not question what he said.

    Beatrice Rosenberg:

    I think that’s what the Speech or Debate Clause means.

    That you shall not question what was done, I think, because it is possible this time — this Court said in the Time case [Inaudible] could have been into the heat of the debate but you can’t say he made a mistake and he injured me and therefore, he has to be liable.

    Abe Fortas:

    Miss Rosenberg, I’d like to ask you help me out.

    As I understand and what you have is charge of a conspiracy.

    Beatrice Rosenberg:

    Yes.

    Abe Fortas:

    And you have just dissent that in order to make it true, you have to use the fact that the Congressman made a speech.

    That is what your stand upon —

    Beatrice Rosenberg:

    Well, we did, I mean whether it’s hard to say.

    There was a question preliminary evidence but I suppose — I — we certainly did prove that he made the speech.

    We proved to the public relations made.

    Maybe at this point, I should just summarize what our proof was.

    Abe Fortas:

    Well, if you permit me to ask you my question.

    Beatrice Rosenberg:

    I’m sorry.

    Abe Fortas:

    If you don’t mind.

    Now, would you agree that if the Government has filed it’s proof of conspiracy and used the text of the speech and had gone into the substance of the speech, would you or would you not feel that that’s — would be a violation of the constitutional [Inaudible]

    Beatrice Rosenberg:

    Oh, I think — I think the Government could not base its affirmative case of the cons — on the content of the speech.

    Abe Fortas:

    Now, he has us told us earlier, if I correctly remember, that the Government did use a substance of the speech in the cross examination of Congressman Johnson?

    Beatrice Rosenberg:

    Yes.

    Abe Fortas:

    So that, is this — does this case present essentially on your view of it a question of degree, that is to say whether the Government used the speech or went in to the speech in such a degree to such amount or for such a purposes or how do you want to phrase it, as to violate the constitutional immunity?

    Beatrice Rosenberg:

    Well, let me say that I think as the Court here that is as decided by the Court of Appeals, no because the Court of Appeals decided it very broadly.

    They decided that any prosecution for bribery was barred by the Speech and Debate Clause.

    And now, obviously, if that is decided again differently from the way the Court of Appeals decided it and it is possible and the Court holds that there can be prosecutions for bribery, then it begs to the question of, “Is this prosecution?”

    Abe Fortas:

    There is sometimes — sometimes, this Court as I understand [Inaudible] things the other way around.

    Beatrice Rosenberg:

    Well, except that the Court of Appeals never did decide mostly that if it can’t involve too much use of the speech.

    What the Court of Appeals said was no speech.

    The minute you have a prosecution for bribery to make a speech that outlawed.

    Now, the question of whether I think that decision would be made on the book firmly can’t be affirmed obviously on different grounds, but I think that the decision has rendered us prevent the broader question.

    Now, there is involved in that a narrower question of whether too much use was made of the speech here and that just brings me to the question of what we proved in this case.

    What we showed was, that Edlin and one of his companies was under indictment and interested in getting what one might call a federal public image so they hired a public relations man named Edlin and, they talked about having a speech made in April in May of 1960.

    The speech that they prepared — this is what the government’s affirmative case showed obviously contemplated the speech in the House of Representatives.

    Beatrice Rosenberg:

    The draft — they were preparing draft to the speech because references were put in to a Mister Speaker.

    Hugo L. Black:

    To of what?

    Beatrice Rosenberg:

    Mr. Speaker, indicating that they expected it to be given in the House of Representatives.

    This was the draft.

    In May, at a luncheon with respondent, Edlin and the public relations man discussed in general, the plight of the of the so called independent Maryland Savings and Loan institution, as I say one of which whom was under indictment.

    Sometime in May, it doesn’t appear exactly when in relation to this luncheon with respondent, Heflin told Edlin that there was no time limit in the speech, no reason to make it.

    However, on May 27, 1963, there was this jury in the financial pages of the Washington’s jar which called the Maryland Savings and Loan Associations phoney.

    Hugo L. Black:

    Called it what?

    Beatrice Rosenberg:

    Phoney.

    After that Heflin and Edlin’s attorney, who was the defendant Robinson went to the respondent’s office and they discussed the star article with him and showed him these drafts — the draft that they had prepared.

    Robinson said his administrative assistant would go over the material I mean respond that his administrative assistant would go over the material.

    Subsequently, Heflin as a public relations man, supplied facts and figures and the administrative assistant sent him a draft.

    Heflin learned about the speech about two days after it was given and issued a press release based on the speech.

    Edlin issued fifty thousand reprints for his company and the marked parts have them in red and sent them out in answers to people wrote in about the Maryland Savings and Loan Association.

    It’s about this time they started – they reactivated the second of this company which should have been dormant until then called Red Continental and they sent out in the answers to inquiries about the institution, copies of the speech with underlining in red.

    As I said before, the only copies of the speech which the Government introduced in this direct case was one of these reprints which had a very different kind of a heading — a much more dramatic heading about the federal savings and loans seeking destruction of the Independent.

    William J. Brennan, Jr.:

    Now what — to what issue was that offer of proof relevant?

    Beatrice Rosenberg:

    All this was relevant as bearing on the question of the Congressman taking money to work in the interest — in the Edlin interest first, to make a speech and then, to bring pressure on the Department of Justice.

    William J. Brennan, Jr.:

    Is that it — you’ve emphasized twice that they made a difference in caption.

    What was the significance of that on — has bearing on the issue in the case?

    Beatrice Rosenberg:

    Oh!

    It shows that it was done, I think hence, to prove that it was done for, besides [Inaudible] any other money [Inaudible]

    William J. Brennan, Jr.:

    Well then so that extends at least the Government’s case rested on the speech, at least the caption of it.

    Beatrice Rosenberg:

    But, the caption was not the caption of the speech.

    The caption put on the speech was not the caption of the speech as is reported in the Congressional record.

    Are you drawing the distinction that if you use a copy of the speech with reference to the clerk, will bring it to the Congressional record that that might have defended the constitution of protection, is that what you’re saying?

    Beatrice Rosenberg:

    I think it tends to prove to that, I think it is a fact that we did not rely on the speech as given its part of the affirmative play.

    It shows that it was one of the circumstances that indicate that this was part of the conspiracy that this was prepared that the speech was given for money, for the interest of the defendant, of the co-defendant, the co-conspirators who gave the money and on the money question —

    Hugo L. Black:

    Was he convicted for conclusion of the fraud generally or just the conspiracy case, defraud the government, this man.

    Beatrice Rosenberg:

    Well, the charge with conspiracy to defraud the United States of the good offices of the Congressman and —

    Hugo L. Black:

    So what was the charge against the other — others, I should say.

    Beatrice Rosenberg:

    Well, I think that they all conspired to defraud the United States of the honest services of the Congressman, of the honest services of the Department of Justice and —

    Hugo L. Black:

    The same charge against all.

    Beatrice Rosenberg:

    Yes, it was on the conspiracy charge.

    Hugo L. Black:

    Yes.

    Beatrice Rosenberg:

    On the other separate counter charge here the others would charge if they’re to admit that to be put as a violation —

    Hugo L. Black:

    Was he tried for the other two?

    Beatrice Rosenberg:

    Yes.

    Hugo L. Black:

    Was he convicted?

    Beatrice Rosenberg:

    He was convicted.

    Hugo L. Black:

    On that too?

    Beatrice Rosenberg:

    He was convicted of the substantive count and the only reason the Court of Appeals reversed that was that they thought maybe the evidence as to the speech had a bearing on the conviction of the other count.

    I think when we in the record might be in the other way when we could have read it, had come to another conclusion but we have not brought that issue here.

    Hugo L. Black:

    Of course the other counts have noting to do with the speech?

    Beatrice Rosenberg:

    No, this count had nothing to do with the issue.

    Hugo L. Black:

    And then they would apparently were —

    Beatrice Rosenberg:

    That’s right.

    But they were reversed because of the speech issue.

    Now on the question of the money what was shown was that ten days before the speech was given, respondent received $500.

    This wasn’t given directly.

    It was a check sent by Robinson who was the attorney and who lived in Florida, and it was sent to respondent.

    Now he endorsed it over to his campaign treasurer that came in the government’s case.

    Subsequently, in August respondent received a $1,000 check from Robinson for which Robinson was reimbursed by ones of savings and loan institutions that was marked of legal services.

    In November there was a $300 check to a campaign treasurer again from Robinson in Florida for which Robinson was again reimbursed this time [Inaudible] by Continental and then starting in January 1961 there were four checks for $800 and then from March to October and it was March to October when the representation to the Department of Justice were made, it was about $20,000 all paid through Robinson and to the defendant like the government also show as part of it’s affirmative case was that there were no legal services rendered for this money.

    The proof of that became even stronger as the respondent had testified and so if you read the opinion a good deal of that proof does referred to the testimony of the respondent but the government did show affirmative proof in that direction.

    Now it’s therefore evident that the government did not rely on the content of the speech at all to prove this case.

    It did prove that speech was given.

    It did prove that the speech was useful and was used by it’s — the co-conspirators.

    It did prove that money went from the co-conspirators to respondent and did prove that he did not render services which would justify that money and that was the government has.

    Now when respondents got up he did that or I think I should say one other thing it doesn’t show up in the appendix but there isn’t a [Inaudible] evidence that reporter from the Washington Post talked to respondents in December 1961 which is before the they were given any action both about representations before the Department of Justice and the representation and the speech.

    Beatrice Rosenberg:

    And the government affirmatively did put on that reporter who said that respondent told him in 1961 that he made the speech because the constituents asked.

    Hugo L. Black:

    To — another what?

    Beatrice Rosenberg:

    Because the constituent asked it.

    As I said that wasn’t reprinted in the appendix but it is in the record.

    Now when respondent took the stand he did say that he gave a speech because he thought it would make a good campaign issue and the government of course examined him about that.

    William J. Brennan, Jr.:

    May I ask you Ms. Rosenberg, on the government’s direct case I take that the defense objected though the evidence about the speech, on the government’s direct case.

    Beatrice Rosenberg:

    Well they had made a motion to dismiss before trial on the ground that the indictment of the Court by the Speech and Debate Clause.

    William J. Brennan, Jr.:

    But what about objections to this —

    Beatrice Rosenberg:

    I don’t — and it had been overruled by the district judge who said that it didn’t do it.

    I don’t recall that every time any piece of evidence came in specifically on that that they made that objection in those terms.

    There were various objections in the Court held that other things questions about why they went further into the conspiracy —

    William J. Brennan, Jr.:

    Was there a motion for acquittal at the government’s case?

    Beatrice Rosenberg:

    Yes, there was in motion for acquittal at the —

    William J. Brennan, Jr.:

    Did that rest on the Speech and Debate Clause in the part?

    Beatrice Rosenberg:

    Well, I think he renewed the motion before trial and I think that — I don’t think that they were focused narrowly on the fact that too much use was made of the speech as such.

    It was generally, there is no question that consistently the defendant has argued by motion to dismiss the motion for acquittal and so on that the whole constitution was [Inaudible]

    William J. Brennan, Jr.:

    So the government makes no point of any failure to object to those —

    Beatrice Rosenberg:

    No.

    He’s raised that point consistently but as I say one of the problems is that to where this has been approached broadly, it’s been approached as if there is prosecution is possible or is it not and I don’t think at any stage really there has been any sharp vote that it’s been mentioned that the defendant uses it in support of his argument and we did talk about in our main brief but there has not been any sharp purpose on the narrow question of —

    Hugo L. Black:

    Hadn’t been any, what?

    Beatrice Rosenberg:

    Sharp protest on the narrow question of whether in this particular trial there was reliance or too much reliance on the contents of the speech.

    Hugo L. Black:

    What would you think about [Inaudible], provided that it should be a crime people to get together and agree among themselves to urge a campaign, to do everything possible, they get Congressman to make speeches on the bill.

    Could that’s be permissible —

    Beatrice Rosenberg:

    Yes, that would be a permissible —

    Hugo L. Black:

    Do you think that would be —

    Beatrice Rosenberg:

    That’s just urging it.

    That’s very different it seems to me from buying somebody.

    Hugo L. Black:

    Well, suppose they have said that they’re going to try to get it done if necessary.

    They had paid for the speech as [Inaudible] that they’re going to do extra work, what about the right to petition?

    Beatrice Rosenberg:

    They have a right to petition but they don’t have the right to bribe.

    Hugo L. Black:

    I understand but bribe means many different things you can give a word of that conduct of bad name.

    Beatrice Rosenberg:

    I think it’s bad.

    Hugo L. Black:

    We had a case that long ago of Noah against somebody and which is — a railroad, they tried everywhere in the world to get enough money and so forth to keep laws from being passed one way or another and [Inaudible] promulgating and we know that they can bring their turn for that.

    Beatrice Rosenberg:

    What we do have Your Honor has it and the Court has upheld that, the people who lobby have to register so that there is and I think —

    Hugo L. Black:

    But registering is quite different from outlawing it.

    Beatrice Rosenberg:

    I think that there’s a big difference also from saying that one may raise money and petition and request a Congressman or any interested economic group has the right to bring [Inaudible]

    Hugo L. Black:

    And hire people, hire people to go and lobby with the Congressman —

    Beatrice Rosenberg:

    That’s right, but I think it is very different situation where and in the sense empathetical to the whole idea that of the right to petition where you have somebody passing money surreptitiously under the table.

    I think its exactly then and the feeling that Congressman do something not because of whatever legitimate political pressures do but for money this is a —

    Hugo L. Black:

    Suppose that’s been get up for fund, I think I have heard of that being done, they get into the corner, they help the Congressman or a senator in connection with his campaigns and things and they want legislation passed and they go to them and asking to get it passed, would that — that be made a crime?

    Beatrice Rosenberg:

    Because that’s their right to petition.

    But this is bringing not a normal political pressure but the pressures of money to bear in a sense to divert the normal political pressures.

    Hugo L. Black:

    Is it — as I understand, suppose this man had been fighting for this bill a long time, he’s [Inaudible] it’s been his bill he knows and to people who also thought that the — you make some speeches on it.

    He says “Well I — I can’t spend no –” and they say “We’ll give you some money to make a speech.”

    You’d say that that could be a crime?

    Beatrice Rosenberg:

    I said that the Congress could make this for him.

    Hugo L. Black:

    You’d know his problem and [Inaudible] I am going to do everything I can for him, they want to stimulate him with what they called something a bonus let’s say, so if he could — he use different —

    Beatrice Rosenberg:

    I think the Congress has to right that we don’t want bonuses and I think the Congress had done so. The Congress has done it since 1853.

    It has the bribery statute on the Congress if then so —

    Hugo L. Black:

    Well it would be quite a different statute wouldn’t it, if it said that no Congressman to accept employment the minute of the service while using Congress.

    Beatrice Rosenberg:

    Oh, the constitution said that, but — well, as in the Executive Department and then they do say the Congressman can’t do certain type of things in their private employment but the Congress has also said and they said it since 1853.

    Every legislature I think of every state the union had said it, we don’t want Congressman voting or making speeches for money.

    Hugo L. Black:

    And now there’s a difference between voting and making speeches, doesn’t it?

    Beatrice Rosenberg:

    I don’t think so.

    Hugo L. Black:

    That the Constitution says something about making speeches.

    Beatrice Rosenberg:

    Well, that this Court said since the time Kilbourn against Thompson that the Speech or Debate Clause includes voting.

    Hugo L. Black:

    A what?

    Beatrice Rosenberg:

    That the Speech or Debate Clause in encompasses voting as well as future debate.

    That’s been decided in Kilbourn against Thompson and I think and since the old Massachusetts case that this Court had cited in Tenney, Coffin against Coffin before Massachusetts.

    William O. Douglas:

    The statute shows action or voting?

    Beatrice Rosenberg:

    The statute says the action on any matter pending but I don’t think the fact — now in the Massachusetts bribery statute for instance specifically mentioned speech but to say that a matter is within the Speech and Debate Clause and then its not within this comprehensive bribery statute it seems to me very inconsistent.

    I think the fact is that I have — it vote, it’s within the Speech and Debate Clause and it — had so been interpreted by this Court from the beginning then there is no constitutional difference between speech or vote and something — there are all kinds of actions that it done we have it right down the line.

    All kinds of action which cannot be questioned in the sense that you can’t show that its bad judgment or that it was done from [Inaudible].

    You have it as to prosecutors, the Courts stated they have — you can’t sue them making their judgment and from now it’s — you have it as the judge, you have it as the Congressman.

    William J. Brennan, Jr.:

    Ms. Rosenberg suppose that a Congressman get up and [Inaudible] with the Congress says, “I want all of you to know that I am a member of the communist party and I believe an overthrow of this government by force and violence.”

    Could he be prosecuted under the membership clause that was provided?

    Suppose he got a $1,000 for making that statement?

    Beatrice Rosenberg:

    That’s different because then he’s being prosecuted for taking a $1,000 to make it.

    I don’t think that’s there’s any difference in saying that a juror votes to acquit because he likes people with red hair and that’s — that there’s nothing anybody can do about it.

    They vote.

    But if a juror vote to acquit because somebody gave him a $1,000 can prosecuted, and exactly this comes within the Speech and Debate Clause but that principle doesn’t seem to me any different.

    It doesn’t seem to me any different if you say this is a perfectly sound accusation which would stand up in any appellant court and which this Court would affirm but you can’t give it for — you can’t take a $1,000 to give it.

    I think that for the purposes of what constitutes questioning there is no essential difference between the judicial privilege and the — there’s never been question that you can’t have people going around bribing jurors, bribing judges.

    And I don’t think why it should be different for Congressman and the point is not what I think, the point is that the Congress had not thought should be a different proponent.

    Hugo L. Black:

    Well, has the Congress said it would reference to a man’s speech, it was raised by the different question with me, the founders have said that I don’t —

    Beatrice Rosenberg:

    Well, then your question is a very narrow one which is when former 205 which was passed in 1862, the Congressman on the board said “This is a comprehensive legislation that we know how to do it.”

    That’s what they said about it at that time.

    It does not in so many words use speech but it uses what they thought — well I think comprehensively with what the Congress thought was comprehensive language.

    And the —

    Hugo L. Black:

    What would they have to a particular that as I recall it they went up to a lot of people who [Inaudible] the Congress.

    Beatrice Rosenberg:

    It was part of it that they certainly use — they specifically used word action, action, to have it action vote or division influence.

    Now this is not to anyone, this is not the conflict of interstate, this is not dealing with what the Congress did as such.

    This is action brought or decision influenced on any question matter for or proceeding which may at anytime be pending in either House of Congress or before any committee thereof or which by law maybe brought before him in his capacity as such member, that’s pretty broad language and it covers the right deal and all the state has similar statutes.

    Earl Warren:

    We’ll recess now.