United States Servicemen's Fund v. Eastland

• Decision Date: 30 August 1973
• Docket Number: 24412,71-2034,71-1609,No. 24279,71-1693 and 71-1717.,24279
• Citation: 488 F.2d 1252
• Parties: UNITED STATES SERVICEMEN'S FUND et al., Appellants, v. James O. EASTLAND et al. PROGRESSIVE LABOR PARTY et al. v. COMMITTEE ON INTERNAL SECURITY OF the UNITED STATES HOUSE OF REPRESENTATIVES et al., Appellants. NATIONAL PEACE ACTION COALITION et al. v. COMMITTEE ON INTERNAL SECURITY OF the UNITED STATES HOUSE OF REPRESENTATIVES et al., Appellants. PEOPLES COALITION FOR PEACE AND JUSTICE v. COMMITTEE ON INTERNAL SECURITY OF the UNITED STATES HOUSE OF REPRESENTATIVES et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

488 F.2d 1252 (1973)

UNITED STATES SERVICEMEN'S FUND et al., Appellants, v. James O. EASTLAND et al.

PROGRESSIVE LABOR PARTY et al. v. COMMITTEE ON INTERNAL SECURITY OF the UNITED STATES HOUSE OF REPRESENTATIVES et al., Appellants.

NATIONAL PEACE ACTION COALITION et al. v. COMMITTEE ON INTERNAL SECURITY OF the UNITED STATES HOUSE OF REPRESENTATIVES et al., Appellants.

PEOPLES COALITION FOR PEACE AND JUSTICE v. COMMITTEE ON INTERNAL SECURITY OF the UNITED STATES HOUSE OF REPRESENTATIVES et al., Appellants.

Nos. 24279, 24412, 71-2034, 71-1609, 71-1693 and 71-1717.

United States Court of Appeals, District of Columbia Circuit.

Argued January 15, 1973.

Decided August 30, 1973.

As Amended October 5, 1973.

Rehearing Denied January 23, 1974.

COPYRIGHT MATERIAL OMITTED

Nancy Stearns, and Jeremiah S. Gutman, New York City, with whom Philip J. Hirschkop, Alexandria, Va., was on the brief, for appellants in Nos. 24279, 24412 and 71-2034.

Robert L. Keuch, Atty., Dept. of Justice, with whom Richard S. Stolker, Atty., Dept. of Justice, was on the brief, for appellees in Nos. 24279, 24412 and 71-2034. Benjamin C. Flannagan, Atty., Dept. of Justice, also entered an appearance for appellee in No. 24279.

Robert L. Keuch, Atty., Dept. of Justice, with whom Garvin Lee Oliver, Atty., Dept. of Justice, was on the brief, for appellants in Nos. 71-1609, 71-1693, and 71-1717. Benjamin C. Flannagan, Atty., Dept. of Justice, also entered an appearance for appellants in Nos. 71-1609, 71-1693 and 71-1717.

Burt Neuborne, New York City, of the Court of Appeals of New York, with whom Jeremiah S. Gutman, New York City, and Hope Eastman, Washington, D. C., were on the brief, for appellees in Nos. 71-1609, 71-1693, and 71-1717.

Before BAZELON, Chief Judge, TUTTLE,^* Senior Circuit Judge for the Fifth Circuit, and MacKINNON, Circuit Judge.

TUTTLE, Senior Circuit Judge:

This case, combined for argument and consideration on appeal with cases numbered 71-1609, 71-1693 and 71-1717, presents the court with the task of deciding a fundamental constitutional question of grave import to which the Supreme Court has not yet given an explicit answer. The question is: Have the courts of the United States the power to interfere with the subpoena power as exercised by committees of the United States Senate and House of Representatives when the exercise of such power threatens a deprivation of First Amendment rights of freedom of association which can be vindicated in no way other than by court decree?

This difficult question comes to this Court by appeal from denial of an injunction by the trial court. It is an action by United States Servicemen's Fund, et al., v. Eastland, et al., chairman, members and counsel for the Sub-Committee on Internal Security of the Committee of the Judiciary of the United States Senate and the Chemical Bank New York Trust Company. The history of the litigation and its origins, so far as necessary to our consideration of the issues on appeal follows:

On May 28, 1970, there issued over the signature of Honorable James O. Eastland, Chairman, Committee on the Judiciary and Sub-Committee on Internal Security of the United States Senate a subpoena directed to Chemical Bank in New York City commanding it to bring to the Sub-Committee on Internal Security on June 4, 1970, at the committee room, 2300 New Senate Office Building, Washington, D. C., at 10 o'clock a. m.

"pursuant to S.Res. 366, 81st Congress — 2d, as amended and extended, and S.Res. 341, agreed to February 16, 1970, any and all records pertaining to or involving the account or accounts of the United States Servicemen\'s Fund. Such records to comprehend papers, correspondence, statements, checks, deposit slips and supporting documentation, or microfilm thereof within your control or custody or within your means to produce."

On or about June 1, 1970, a complaint was filed by USSF against the stated defendants and an application for temporary restraining order prohibiting the execution of the subpoena was filed with the United States District Court for the District of Columbia. The plaintiffs asserted that they were a non-profit, tax-exempt membership corporation to further the welfare of persons who have served or are presently serving in the military.¹

The challenge to the validity of the subpoena included an attack on the overbreadth of Resolutions 366 and 341, the vagueness and ambiguity of such resolutions and that the subpoena issued under the resolutions

"violates plaintiffs\' rights under the United States Constitution and particular their rights of privacy and their rights of freedom of speech, freedom of press, freedom of association and freedom from unreasonable search and seizure as guaranteed by the First, Fourth, Fifth, Ninth and Tenth Amendments."

The petition also alleged on information and belief that the subpoena was issued against the defendant, Chemical Bank New York Trust Company, rather than directly against the plaintiffs in order to deprive plaintiffs of their rights to protect their private records, such as the sources of their contributions, as they would be entitled to do if the subpoenas had been issued against them directly. It further alleged

"the financial support of USSF, which permits it to continue its activities, in furtherance of the welfare of military personnel, is obtained exclusively through contributions of private individuals and foundations. Plaintiffs believe that if the Chemical Bank is forced, under a threat of contempt of Congress, to comply with the aforesaid subpoena and provide a sweeping array of documents demanded by the Sub-Committee, much of that financial support will be withdrawn and USSF will be unable to continue its constitutionally protected activities."

The petition finally alleged

"unless the enforcement and operation of the subpoena and the resolutions pursuant to which it was authorized are restrained by this court, immediate and irreparable harm will be done to the plaintiffs and to the entire nation by the curbing of freedom of the press and of dissent."

The complaint prayed for a permanent injunction restraining the bank from complying with the subpoena by in any way "disclosing, revealing or delivering any records, papers, correspondence, statements, checks, deposit slips, supporting documents or microfilm" to the committee; and restraining defendant Sub-Committee members and staff counsel from seeking to enforce the said subpoena by use of the power of contempt of Congress or any other means. It also sought a declaratory judgment holding that the aforesaid subpoena is void and illegal under the United States Constitution and that Senate Resolutions 366 and 341 are void and illegal under the United States Constitution.

The case having come on for hearing on plaintiffs' application for temporary restraining order the trial court stated

"upon consideration of the application and argument of counsel in chambers and it appearing to the court that this court lacks subject matter jurisdiction, the plaintiffs lack standing to sue, and that plaintiffs failed to demonstrate probability of success on the merits, it is by the court this first day of June, 1970, ORDERED that plaintiffs\' application for a temporary restraining order be, and the same is, hereby denied."

Thereafter, application was then made to this Court for a stay in the enforcement of the subpoenas and this Court, Judge MacKinnon dissenting, entered the following order:

"This court accords deference to the committees of Congress, a coordinate branch of the Government, and to their authority to conduct investigations and to subpoena witnesses and records in connection with their investigations.

It appears, however, that serious constitutional questions are presented by this litigation which require more time than is presently available for proper consideration. See Stamler v. Willis, 7 Cir., 415 F.2d 1365 (1969). The Second Circuit has, in similar circumstances, involving the same appellees, issued a temporary restraining order in order to assure appropriate consideration by the federal courts in the District of Columbia. Liberation News Service v. Eastland, 2 Cir., 426 F.2d 1379 (No. 34,688, decided May 7, 1970).

In denying temporary relief, the District Court assumed the court entirely lacked jurisdiction. This assumption is doubtful indeed in view of the fact that parties defendant include the cognizant counsel of a committee and the private party to whom plaintiffs have entrusted information. Stamler v. Willis, supra; Hearst v. Black, 66 App.D.C. 313, 87 F.2d 68 (1936).

It appears to the Court that the issues involved, as to the merits of the case, are of such significance that they require at least the kind of consideration and deliberation that would be provided by the procedure of a hearing on an application for injunction, as contrasted with a mere temporary restraining order.

The decisive element in our action to grant a stay is like that which moved the Second Circuit, because unless a stay is granted this case will be mooted, and there is likelihood, that irreparable harm will be suffered by appellants, at 10:00 a. m. this morning.

It is ORDERED by the court that the emergency stay requested by appellants be granted until the District Court has an opportunity fully to consider and to act on this matter, and it is

FURTHER ORDERED by the court that consideration of this case be expedited by the District Court.

Judge MacKinnon is of the opinion that the question is not free from doubt but would deny the stay on the record made before the trial court on the grounds that the subpoena was issued for a valid legislative purpose and that the balancing of the legislative power of Congress, including the ancillary power to investigate to determine what legislation may be necessary, against defendants\' claimed First Amendment rights, leads to the conclusion that the balance prevails in favor of the governmental interest and that plaintif

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