383 U.S. 169 (1966), 25, United States v. Johnson

Docket Nº:No. 25
Citation:383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681
Party Name:United States v. Johnson
Case Date:February 24, 1966
Court:United States Supreme Court

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383 U.S. 169 (1966)

86 S.Ct. 749, 15 L.Ed.2d 681

United States



No. 25

United States Supreme Court

Feb. 24, 1966

Argued November 10 and 15, 1965




Respondent, a former Congressman, was convicted on several counts of violating the conflict of interest statute (18 U.S.C. § 281) and on one count of conspiring to defraud the United States (18 U.S.C. § 371). The conspiracy charge involved an alleged agreement whereby respondent and another Congressman would attempt to influence the Justice Department to dismiss pending savings and loan company mail fraud indictments. As part of the conspiracy, respondent allegedly delivered for pay a speech in Congress favorable to loan companies. The Government contended and adduced proof to show that the speech was delivered to serve private interests; that respondent was not acting in good faith, and that he did not prepare or deliver the speech as a Congressman would ordinarily do. The Court of Appeals set aside the conviction on the conspiracy count as being barred by Art. I, § 6, of the Constitution, providing that "for any Speech or Debate in either House," Senators and Representatives "shall not be questioned in any other Place," and ordered retrial on the substantive counts.


1. The Speech or Debate Clause precludes judicial inquiry into the motivation for a Congressman's speech, and prevents such a speech from being made the basis of a criminal charge against a Congressman for conspiracy to defraud the Government by impeding the due discharge of its functions. Pp. 173-185.

(a) The Speech or Debate Clause, which emerged from the long struggle for parliamentary supremacy, embodies a privilege designed to protect members of the legislature against prosecution by a possibly unfriendly executive and conviction by a possibly hostile judiciary. Pp. 177-180.

(b) The privilege, which will be broadly construed to effectuate its purposes, Kilbourn v. Thompson, 103 U.S. 168; Tenney v. Brandhove, 341 U.S. 367, was created not primarily to avoid private suits as in those cases, but to prevent legislative intimidation by and accountability to the other branches of government. Pp. 180-182.

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(c) The Speech or Debate Clause forecloses inquiry not only into the "content" of a congressional speech, but into circumstances involving the motives for making it. Pp. 182-183.

(d) Prosecution under a general criminal statute involving inquiry into the motives for and circumstances surrounding a congressional speech is barred even though the gravamen of the offense is the alleged conspiracy, rather than the speech itself. Pp. 184-185.

2. The Government is not precluded from retrying the conspiracy count as purged of all the elements offensive to the Speech or Debate Clause. P. 185.

3. This Court does not review the Court of Appeals' determination that the substantive counts be retried because of the prejudicial effect thereon resulting from the unconstitutional aspects of the conspiracy count, since the Government does not dispute that determination in this proceeding. Pp. 185-186.

337 F.2d 180, affirmed and remanded.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

Respondent Johnson, a former United States Congressman, was indicted and convicted on seven counts of violating the federal conflict of interest statute, 18 U.S.C. § 281 (1964 ed.),1 and on one count of conspiring to

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defraud the United States, 18 U.S.C. § 371 (1964 ed.).2 The Court of Appeals for the Fourth Circuit set aside the conviction [86 S.Ct. 751] on the conspiracy count, 337 F.2d 180, holding that the Government's allegation that Johnson had conspired to make a speech for compensation on the floor of the House of Representatives was barred by Art. I, § 6, of the Federal Constitution, which provides that, "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." The Court of Appeals ordered a new trial on the other counts, having found that the evidence adduced under the unconstitutional aspects of the conspiracy count had infected the entire prosecution.

The conspiracy of which Johnson and his three codefendants were found guilty consisted, in broad outline, of an agreement among Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin and William L. Robinson, who were connected with a Maryland savings and loan institution, whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges. It was further claimed that, as a part of this general scheme, Johnson read a speech favorable to independent savings

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and loan associations in the House, and that the company distributed copies to allay apprehensions of potential depositors. The two Congressmen approached the Attorney General and the Assistant Attorney General in charge of the Criminal Division and urged them "to review" the indictment. For these services, Johnson received substantial sums in the form of a "campaign contribution" and "legal fees." The Government contended, and presumably the jury found, that these payments were never disclosed to the Department of Justice, and that the payments were not bona fide campaign contributions or legal fees, but were made simply to "buy" the Congressman.

The bulk of the evidence submitted as to Johnson dealt with his financial transactions with the other conspirators, and with his activities in the Department of Justice. As to these aspects of the substantive counts and the conspiracy count, no substantial question is before us. 18 U.S.C. § 371 has long been held to encompass not only conspiracies that might involve loss of government funds, but also "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Haas v. Henkel, 216 U.S. 462, 479. No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.3

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The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial. Extensive questioning went on concerning how much of the speech was written by Johnson himself, how much by his administrative assistant, and how much by outsiders representing the loan company.4 The government attorney asked Johnson specifically [86 S.Ct. 752] about certain

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sentences in the speech, the reasons for their inclusion and his personal knowledge of the factual material supporting those statements.5 In closing argument, the

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theory [86 S.Ct. 753] of the prosecution was very clearly dependent upon the wording of the speech.6 In addition to questioning the manner of preparation and the precise ingredients

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of the speech, the Government inquired into the motives for giving it.7

The constitutional infirmity infecting this prosecution is not merely a matter of the introduction of inadmissible evidence. The attention given to the speech's substance and motivation was not an incidental part of the Government's case, which might have been avoided by

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omitting certain lines of questioning or excluding certain evidence. The conspiracy theory depended upon a showing that the speech was made solely or primarily to serve private interests, and that Johnson, in making it, was not acting in good faith, that is, that he did not prepare or deliver the speech in the way an ordinary Congressman prepares or delivers an ordinary speech. Johnson's defense quite naturally was that his remarks were no different from the usual congressional speech, and, to rebut the prosecution's case, he introduced [86 S.Ct. 754] speeches of several other Congressmen speaking to the same general subject, argued that his talk was occasioned by an unfair attack upon savings and loan associations in a Washington, D.C., newspaper, and asserted that the subject matter of the speech dealt with a topic of concern to his State and to his constituents. We see no escape from the conclusion that such an intensive judicial inquiry, made in the course of a prosecution by the Executive Branch under a general conspiracy statute, violates the express language of the Constitution and the policies which underlie it.


The Speech or Debate Clause of the Constitution was approved at the Constitutional Convention without discussion and without opposition. See V Elliot's Debates 406 (1836 ed.); II Records of the Federal Convention 246 (Farrand ed.1911). The present version of the clause was formulated by the Convention's Committee on Style, but the original vote of approval was of a slightly different formulation which repeated almost verbatim the language of Article V of the Articles of Confederation: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress. . . ." The language of that Article, of which the present clause is only a slight modification, is, in turn, almost identical to the English Bill of Rights of 1689:

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That the Freedom of Speech, and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.

1 W. & M., Sess. 2, c. 2.

This formulation of...

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