United States v. Doe, 71-1331

Decision Date07 January 1972
Docket NumberNo. 71-1331,71-1332 and 71-1335.,71-1331
Citation455 F.2d 753
PartiesUNITED STATES of America v. John DOE. Mike Gravel, United States Senator, Intervenor, Appellant. UNITED STATES of America, Appellant, v. John DOE.
CourtU.S. Court of Appeals — First Circuit

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David R. Nissen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., and Warren P. Reese, Asst. U. S. Atty., were on brief, for the United States.

Robert Reinstein, Philadelphia, Pa., and Herbert O. Reid, Sr. with whom Charles L. Fishman, Washington, D. C., was on brief, for Mike Gravel, United States Senator.

Doris Peterson, Peter Weiss, James Reif, and Morton Stavis, New York City, on brief, for Leonard Rodberg, amicus curiae in case No. 71-1335.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

These cross appeals raise important questions as to the extent of the privilege afforded by the Speech or Debate clause of the Constitution. This clause, the separate and concluding part of Article I, Section 6, Clause 1, provides that ". . . for any Speech or Debate in either House, they Senators and Representatives shall not be questioned in any other Place." The issues arise in the context of a motion to limit the testimony that can be presented to a federal grand jury. The facts are these.

A copy of classified Defense Department documents, now widely known as the Pentagon Papers, containing hitherto unpublished facts concerning the background and conduct of the Vietnam War, found itself, unauthorizedly, in the hands of Senator Gravel, the junior senator from Alaska. The Senator was Chairman of the Senate Subcommittee on Public Buildings and Grounds. He called a meeting of the subcommittee, read to it a summary of the high points, and then introduced the entire Papers, allegedly some 47 volumes and said to contain seven million words, as an exhibit. Thereafter, he allegedly supplied a copy of the Papers to the Beacon Press, a Boston publishing house, owned by the Unitarian-Universalist Society, for publication.

These matters and the events preceding them have attracted the attention of a grand jury in the Massachusetts District. The court found, "The crimes being investigated by the grand jury include the retention of public property or records with intent to convert (18 U.S.C. § 641), the gathering and transmitting of national defense information (18 U.S.C. § 793), the concealment or removal of public records or documents (18 U.S.C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. § 371)." (Strictly, the court misused the word "public.")

Among other summoned witnesses were Leonard S. Rodberg, a legislative assistant to Senator Gravel, and Howard Webber, director of M. I. T. Press. Rodberg objected to testifying, on the ground of invasion of his First Amendment rights of freedom of association and freedom of the press, and in addition, on the ground that as a legislative assistant to the Senator, he is protected by the Speech or Debate clause. The Senator himself has not been called, and the Department of Justice has stated that it has no intention of calling him. The court, however, 332 F.Supp. 930, permitted the Senator to intervene in the proceedings for the purpose of arguing that his own privilege under the Speech or Debate clause requires that the subpoenas issued to Rodberg and Webber be quashed, and that a protective order be issued suppressing certain other testimony. The resulting order the Senator, as the present appellant, finds too limited, and the government, as cross-appellant, too broad.

JURISDICTION

The government, correctly, points out that if the subpoena that was sought to be quashed was directed to intervenor, there could be no appeal from the refusal to quash unless he took the further step of refusing to comply, and was adjudicated in contempt. Cobbledick v. United States, 1940, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; United States v. Ryan, 1971, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85. Here, however, the subpoena was not addressed to intervenor, but to third parties, who could not be counted on to risk contempt in order to protect intervenor's constitutional rights. See United States v. Ryan, ante, at 533, 91 S.Ct. 1580. Hence he was "powerless to avert the mischief of the order" unless permitted to appeal it. Perlman v. United States, 1918, 247 U.S. 7, 13, 38 S.Ct. 417, 419, 62 L.Ed. 950. The government's effort to take the case outside the Perlman exception, by arguing that intervenor will not suffer irreparable injury if the grand jury hears the evidence, assumes the correctness of its claims that no injury is cognizable unless and until intervenor is indicted. Perlman, however, illustrates that, to the contrary, a court, in determining whether an intervenor will suffer irreparable injury unless allowed to appeal, should assume his claim to be correct. We hold, therefore, that the order denying intervenor's motion is appealable.

THE ISSUES

The court's order, so far as presently material, provided as follows.

"(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel\'s conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971 nor about things done by the Senator in preparation for and intimately related to said meeting.
"(2) Dr. Leonard S. Rodberg may not be questioned about his own actions on June 29, 1971 after having been engaged as a member of Senator Gravel\'s personal staff to the extent that they were taken at the Senator\'s direction either at a meeting of the Subcommittee on Public Buildings and Grounds or in preparation for and intimately related to said meeting."

This order was preceded by a comprehensive recitation of facts, some of which we do not repeat, and discussion of the legal principles. United States v. John Doe (In re Rodberg), D.C.Mass., 1971, 332 F.Supp. 930. By a subsequent order the court refused further relief, except for a brief temporary stay, which we extended.

The response of both parties is extreme. Intervenor's brief suggests that the entire inquiry is improper.

"There probably is no clearer case of the prostitution of the grand jury process than is daily evidenced here. . . . This Court is thus presented by the government with a flagrant misuse of the subpoena power of the grand jury . . . by the executive. This represents a fundamental perversion of the function of the grand jury. . . ."

The government does not make the rejoinder that intervenor's own action in disclosing documents which were, in his own words, "critical of Executive conduct in foreign affairs," had no conceivable relevance to the functions of the Subcommittee on Public Buildings and Grounds; a matter which would seem self-evident.1 While recognizing that that claim would be (at least largely, see post) irrelevant, it does take the extreme position that while legislators may not be questioned "for" their speech or debate, in the sense of being held accountable, they may be freely questioned "about" them.

"SPEECH OR DEBATE"—THE SCOPE OF THE PRIVILEGE

The areas in which intervenor objects to questioning are three—speech or debate itself, or publication; preparation, or pre-publication, and, finally, republication. We will consider them in that order.

a) Publication

For what he says or does on the floor of the Senate, or before the subcommittee, intervenor is concededly protected by an absolute privilege from all criminal and civil liability. See United States v. Johnson, 1966, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681; Tenney v. Brandhove, 1951, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019. It is equally clear that this protection extends to any written reports of the committee proceedings addressed to Congress, including material unspoken at the hearing but inserted directly into the record. See Kilbourne v. Thompson, 1880, 103 U.S. 168, 204, 26 L.Ed. 377; McGovern v. Martz, D.D.C., 1960, 182 F.Supp. 343, 347. The privilege protects against a claim of irrelevancy, see Cochran v. Couzens, 1930, 59 U.S.App.D.C. 374, 42 F.2d 783, 784, as well as of falsity and malice. The government would argue that intervenor could be questioned "about" his conduct for this very reason, drawing the analogy that one who is immune from prosecution cannot claim the protection of the Fifth Amendment.

In our view this misconceives the scope and purpose of the Speech or Debate clause, which is not principally to protect the person and pocketbook of legislators, but, rather, is to ensure freedom of debate. United States v. Johnson, ante, 383 U.S. at 180-182, 86 S.Ct. 749. Intimidation of a legislator, harassment, embarrassment with the electorate, all may be achieved short of obtaining a criminal or civil judgment. Cf. United States v. Johnson, 4 Cir., 1964, 337 F.2d 180, 191, aff'd, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681. Since these consequences can flow from mere inquiry, the possibility of judicial inquiry could itself serve as an effective deterrent to speaking out against executive policy. Id. Further, although it seems to us relatively less important, the time required to respond to such an inquiry would be inconsistent with another purpose of the Speech or Debate clause, which is "to insure that legislators are not distracted from or hindered in the performance of their legislative tasks." Powell v. McCormack, 1969, 395 U.S. 486, 505, 89 S.Ct. 1944, 1955, 23 L.Ed.2d 491; see Tenney v. Brandhove, ante, 341 U.S. at 377, 71 S.Ct. 783. We cannot accept the government's distinction between questioned "for" and questioned "about."2 Nor do we think that the place of questioning, whether it be before the grand jury or before a petit jury, determines its palatability. The legislator need not answer...

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