Mr. DIXON. That does raise the next question, as to whether Congress, by advance legislation, could have precluded the Supreme Court ruling in the Adam Clayton Powell case, construing as a matter of constitutional construction the article I, section 5 clause.

Representative DELLENBACK. We won't chase that, Mr. Chairman. Chairman METCALF. I think that's a very interesting question, because the Constitution provides that all crimes should be tried by jury, and we say, "OK, if a Senator or a Congressman commits a crime, he can only be punished by the tribunal." That was mentioned in these cases, and the Supreme Court showed some consideration for Members of Congress, that we could do without in that case.

But suppose we said that a Senator or a Congressman, for a crime such as bribery, or any of the related crimes that might be associated with selling a boat, or distributing favors, should be tried only by the tribunal before Congress, not by jury? Now, what would happen then? There's the kind of conflict that you were talking about—a conflict of two constitutional sections.

Mr. DIXON. That's a good question, Mr. Chairman. Let me respond in this way, by suggesting a direct analogy to the implied power of Congress to punish directly by contempt a person who ignores congressional process, rather than by the congressional statute process, making it a misdemeanor, I believe it is-we can check that to be in contempt of Congress, and have the matter handled by a court process.

There are not, as yet, any constitutional precedents that tell us that Congress lacks a power to punish even a private citizen, by the process of direct contempt, without jury trial, without much of anything else except a vote by the body of Congress concerned.

The last instance of that was the Jurney against MacCracken case in 1935, when in the course, as I recall this, of an airmail contract fraud investigation, an attorney ignored a subpoena duces tecum and burned relevant papers on the roof of the National Press Building. For that he received a direct contempt punishment, and served, I believe, at least 10 days, maybe more, in the District of Columbia jail.

In that kind of a proceeding, there is no due process as we conventionally envision it, no real hearing process. It's sort of an immediate slap on the wrist.

So, by analogy, I would say if Jurney against MacCracken stands unreversed, under the power of Congress to punish directly by contempt, without any judicial process at all, that would certainly suggest by analogy some power of Congress to do as you suggest, by precedent. Chairman METCALF. Congressman Dellenback has raised some very difficult questions.

Representative DELLENBACK. May I just ask one question, and ask the witness to give us information on this-and I won't chase the question at this time.

I think it would be helpful to us, because we are asking you in some of these questions, to answer off the top of your head, and that's a little bit unfair.

I would hope, Mr. Chairman, that we might extend to the witness the request that he expand on any of his answers to these questions, that this might be helpful to us, and his including anything he might be able to give us in commentary on the limitations of our power

legislatively to deal with this question of immunity, over and above the Constitution.

Chairman METCALF. I would hope that he would revise and extend his remarks to qualify some of the flat statements he made, that I don't believe he really meant.

[The following material was subsequently submitted to the committee:]

DEPARTMENT OF JUSTICE, Washington, D.C., April 23, 1973.

MEMORANDUM FOR HON. LEE METCALF, CHAIRMAN, JOINT COMMITTEE ON

CONGRESSIONAL OPERATIONS

Re: Discussion of the Power of Congress to Modify the Scope of Congressional Immunity by Legislation.

As I noted in my written statement and oral testimony before your Committee, the Speech or Debate Clause on Article I, Section 6 and the Supreme Court decisions which interpret it cannot be modified by legislation. There was apparently some misunderstanding as to the meaning of a cryptic sentence contained in the conclusory section of my statement, which was intended only to convey this thought. As I also indicated in my testimony, there would seem to be some room for legislation on congressional immunity, possibly expanding to some degree the immunity already conferred in the Speech or Debate Clause.

For example, the effect of immunity could be obtained with respect to many federal criminal or civil statutes simply by omitting Members of Congress or their aides from the class of people covered by the statute. Presumably, no separate constitutional power is required to effect immunity in this manner. The power to enact a statute must include the power not to enact it, or to omit from its coverage certain classes of individuals. By use of the federal supremacy doctrine articulated in Adams v. Maryland, 347 U.S. 179 (1954). Congress may also have power to immunize Members of Congress regarding their official acts from state civil or criminal proscriptions.

Other bases for legislation expanding congressional immunity have been suggested. In his testimony before your committee on March 27, 1973, former Supreme Court Justice Arthur J. Goldberg suggested that certain provisions of Article I of the Constitution, including section 1 (vesting "[a]ll legislative Powers herein granted . . . in a Congress") and section 8 (necessary and proper clause), granted to Congress the necessary authority to modify by legislation the scope of congressional immunity. The theory would be, as in the case of the implied power of congressional investigation, that the grant of legislative power confers also the power to make such reasonable provisions as may be necessary to effectuate the legislative power. Of course, such a theory cannot be carried too far because the extensive specification of powers by the Founding Fathers logically has some limiting effect on the implied powers doctrine. For example, the limited wording of the Speech or Debate Clause, where the Founding Fathers expressly considered the scope of immunity to confer in criminal matters, would make it difficult to argue that Congress could immunize its members against all criminal prosecution, or grand jury inquiry. Significantly, in the analogous area of Executive privilege, the President has never asserted Executive privilege in regard to grand jury inquiry into the Watergate matter. He pledged full cooperation to the grand jury.

The draft bill proposed by Senator Gravel sought to expand the immunity of Members of Congress and their aides by stripping the federal courts of jurisdiction in all criminal proceedings which relate to a "legislative activity" as defined in the bill. Although there are precedents for Congress removing certain matters from the jurisdiction of the lower federal courts, and even from the jurisdiction of the Supreme Court (Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869)), this approach is not without constitutional problems. Notably, it goes beyond what the Executive has ever claimed for itself. It may run afoul of the separation of powers principle by permitting undue interference by the legis lature in the affairs of the judiciary. There is a discussion of the problems involved in statutory narrowing of federal court jurisdiction in my own book, Democratic Representation (Oxford University Press, 1968), at pages 387-392. Whichever approach to legislation is chosen, it is clear that the power of the Congress to expand congressional immunity is not unlimited. Where an asser

tion of immunity conflicts with constitutionally based principles, the legislative grant of immunity may have to give way. Thus, in situations such as occurred in Dombrowski v. Eastland, 383 U.S. 82 (1967), where the chairman and counsel of a Senate subcommittee were accused of conspiring with state officials to unlawfully seize property and records belonging to the petitioners, constitutional rights (in this case, the fourth amendment right protecting individuals against unreasonable searches and seizures) may be involved. Statutory immunity from civil suits brought to enforce such rights might not be recognized by the courts. Legislatively granted immunity, if overly broad, might also run into conflict with separation of powers principles. Thus, if a Member of Congress is immunized from judicial restraint in connection with activities interfering with the operation of the executive or judicial branches, his claim of immunity may not be upheld. Thus, in an instance such as occurred in United States v. Johnson, 383 U.S. 169 (1966), where evidence was introduced that a Congressman had sought to influence the Department of Justice in carrying out its executive responsibilities, a separation of powers argument might be interposed against the legislatively asserted immunity.

The major restraint on legislation expanding congressional immunity probably turns not on the Constitution, but rather on the policy question of how far and to what extent the Congress wishes to place its membership beyond the criminal and civil laws to which all other citizens are subject. Officials of neither the Executive nor the Judiciary currently possess immunity from prosecution for criminal acts, even where the acts in question relate to their official functions. See, United States v. Manton, 107 F.2d 834 (2d Cir. 1938) (prosecution of former judge from the Second Circuit of Appeals) and Fall v. United States, 49 F.2d 506 (D.C. Cir.), cert. denied, 283 U.S. 867 (1931) (prosecution of former Secretary of Interior).

In considering legislation to expand congressional immunity, Congress may also wish to consider the possible ramifications of such action on the scope of analogous immunity for officials of the Executive and Judiciary. With respect to all three branches of Government, there are strong policy reasons for not extending immunity beyond that essential for the proper functioning of our system of government. There may also be a social cost in terms of the individuals who are harmed by the immunized actions of officeholders or other high government officials.

In short, many considerations must be weighed in order to achieve a proper balance of the legitimate but conflicting instances in this field.

ROBERT G. DIXON, Jr. Assistant Attorney General, Office of Legal Counsel.

Representative DELLENBACK. I would be interested at least in that, and whether you may care to request of him. But if we can get some commentary on what the limits might be, if any at all, whether they extend to both civil and criminal rights, I think this would be helpful as we go forward from here.

Thank you, Mr. Chairman. I apologize.

Chairman METCALF. Congressman Cleveland.

Representative CLEVELAND. Mr. Chairman, I ask that, along with my dialogue and the witness', I can have the precise language of the Gravel and Brewster cases inserted in the record, and Madam Reporter, for your information. I hand these to you. They are found on page 241, and on pages 295 and 296, of the report of the Joint Committee on Congressional Operations Identifying Court Proceedings and Actions of Vital Interest to the Congress, dated December 1972, which I mark here, and I'll give them to you. These are the so-called “errand boy" sections of those opinions that you don't take very seriously-and I take rather seriously.

Mr. DIXON. Mr. Cleveland, I wouldn't say I didn't take them very seriously. I thought they're unpredictable and perhaps not to be overly stressed.

Chairman METCALF. Thank you very much, Mr. Dixon, for your appearance here. Unless there are other questions, without objection, that material will be included in the record.

[The above-mentioned material is as follows:]

Legislative acts are not all-encompassing. The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but "only when necessary to prevent indirect impairment of such deliberations." United States v. Doc. 455. F. 2d 753, 760 (CA1 1972.) Gravel v. United States, 408 U.S. 606, 625 (1972)

It is well known, of course, that Members of Congress engage in many activities other than the purely legislative activities protected by the Speech and Debate Clause. These include a wide range of legitimate "errands" performed for constituents, the making of appointments with government agencies, assistance in securing government contracts, preparing so-called "news letters" to constituents, news releases, speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But is has never been seriously contended that these political matters, however, appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things "generally done in a session of the House by one of its members in relation to the business before it," Kilbourn v. Thompson, supra, at 204, or things "said or done by him as a representative, in the exercise of the functions of that office," Coffin v. Coffin, 4 Mass. 1, 27 (1808). United States v. Brewster, 408 U.S. 501, 512-513 (1972)

Chairman METCALF. Thank you very much, Mr. Dixon. I think that we've had a useful dialogue here, and I thank you for coming up and being so patient. You've waited so long.

Mr. DIXON. Thank you. I've enjoyed spending my fourth anniversary with you.

Chairman METCALF. Stick around. You'll spend some more anniversaries with us.

Mr. DIXON. Thank you.

[The statements referred to at page 232 follow:]

STATEMENT OF JOHN P. SAYLOR, A MEMBER OF CONGRESS FROM PENNSYLVANIA

Legislative immunity encompasses more than the protection of Members of Congress in pursuit of their duties. Ultimately, it guarantees the people's right to know what their government is doing. We are the instruments to serve this purpose.

The framers of our Constitution realized that Members of Congress could not effectively function without the privilege of legislative immunity. However, our Founding Fathers did not invent it. The concept and the right originated in 1399, when members of the British House of Commons began fighting for the idea. The immunity developed as a privilege asserted by the Parliament against the prerogatives of the King, in order to fulfill its functions as an independent branch of the government. In our day, what portion of the Constitution is more crucial to preserve?

The battle raged in England until 1688 when the first, unequivocal recognition of legislative immunity for Parliamentary speech was adopted in The Bill of Rights granted by William and Mary which stated,

"... that the freedom of speech, and debate or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament."

In colonial America, the right was recognized in the various Assemblies; the colonists correctly claimed for themselves as individuals and for their instrumentalities of government, the rights belonging to all Englishmen. Therefore, it was logical for the Articles of Confederation to contain a legislative immunity clause which read, “. . . Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress

66

The Constitutional Convention of 1787 adopted this clause without heated debate or dissent; the only discussion concerned its rewording. As adopted, the clause reads, “. . . and for any speech or debate in either house, they shall not be questioned in any other place . . ." Thomas Jefferson explained the necessity for this fundamental prerogative when he petitioned the Virginia House of Delegates in 1797, to wit:

“... that in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was part of the common law, adopted as a law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance of coercion of the coordinate branches, Judiciary and Executive."

Like all true constitutional governments, our Founding Fathers interpreted legislative immunity as a protection against interference with the individual legislator. The framers of the Constitution believed that it would best serve the interests of all people if Members were permitted unlimited freedom of speech or debate.

The beauty of our Constitution has been its ability to withstand all the tests of time. Its flexibility has permitted contemporary interpretations to guide our country through 200 years of ups and downs. Today, it is imperative that the Constitution be interpreted in favor of the people and their representatives. Without such interpretation, the Constitution will crumble and Congress will become an anachronism. Legislative immunity must, therefore, be an absolute shield against all outside interference with the legislative process. It is an essential condition for the existence and full development of the legislative process. The elimination of outside intervention safeguards the rights of the people and the proper representation of the people hinges on legislative immunity.

Representatives must be able to secure information on the governing process from any source available. If we relied solely upon executive branch information, the people and the Congress would be uninformed or misinformed and at the mercy of the executive.

My legislative immunity must not be judicially threatened or harrassed because I have upset the bureaucratic applecart or stepped on someone's toes. No one man or institution has the right to deny the citizens of the 12th Congressional District of Pennsylvania the proper representation which they deserve.

The less Congress can say and do, the further away the government gets from the people. The elimination of Congressional freedom of action would terminate the flow of information to the people. I do not need to tell you who will fill the void left by absence of congressional power. If Members of Congress are gagged in order to assure governmental stability, then we, in effect, will have created an executive dictatorship. Six hundred years of progressive representative government through a system of checks and balances will be obliterated. If we allow that to happen, Congress will be no better off than the British House of Commons under Richard II in 1399.

To interpret this clause of the Constitution in its strictest sense would not be popular representation-it would be puppet representation. I caution this Committee and the people of this Nation-what we do not know, what we cannot say will hurt us! We are not only fighting to save legislative immunity, we are fighting to save representative government.

STATEMENT OF ANTONIO B. WON PAT, MEMBER OF CONGRESS, TERRITORY OF GUAM, IN SUPPORT OF CONGRESSIONAL FREEDOM OF SPEECH

I heartily endorse the underlying purpose of the hearings before the Joint Committee on Congressional Operations, which is to clarify and solidify the immunity from questioning and prosecution of Members of Congress for their utterances in debate and performance of their other vital legislative activities.