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would be the ultimate for nearly all. How does the Congress decide once you do get to the point of a confrontation. It finally has to be decided by the Senate.

Chairman METCALF. It could be ultimately decided on the floor of the Senate by a roll call vote.

Senator FULBRIGHT. Yes; that is the ultimate way.

Senator GRAVEL. Then we agree.

Chairman METCALF. Thank you very much, Senator. I know we kept you too long.

Without objection, I want to submit the amicus curiae brief in the Gravel case, which was filed by a group of distinguished colleagues, to be made a part of the record.

Senator Gravel, who has been scheduled twice to be heard, has kindly said that he will postpone his appearance. So we will hear Senator Gravel tomorrow.

We will be in recess right now until 10 o'clock tomorrow morning. Thank you all.

[Whereupon, at 12:45 p.m., the hearing recessed, to reconvene at 10 a.m., Wednesday, March 28, 1973.]

:

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-1026

UNITED STATES OF AMERICA,

Petitioner

V.

MIKE GRAVEL, United States Senator,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE SENATE OF UNITED STATES
Amicus Curiae

Of Counsel:

Philip B. Kurland

Edward I. Rothschild 20 South Clark Street

Chicago, Illinois 60670

SAM J. ERVIN, JR

JAMES O. EASTLAND

JOHN O. PASTORE

HERMAN E. TALMADGE

NORRIS COTTON

PETER H. DOMINICK

CHARLES MCC. MATHIAS, JR.

WILLIAM B. SAXBE

Attorneys for United States Senate Washington, D. C. 20510

Washington, D. C. THIEL PRESS 202 393-0625

(i)

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT

ARGUMENT:

I. The Origins of the Speech or Debate Clause II. For the Congressional Privilege to be Effective, it Must Include Legislative Aides III. Dissemination of Information is a Legislative Function

CONCLUSION

APPENDIX

Cases:

TABLE OF AUTHORITIES

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Methodist Federation for Social Action v. Eastland,

141 F. Supp. 729 (D.D.C. 1956).

Powell v. McCormack, 395 U.S. 486

(1969). . .

14

12

19

.12, 13, 16

18

8, 12

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Brief of the United States Government in
Doe v. McMillan, No. 71-1027, D.C. Cir.,
Jan. 20, 1972

Hearings on Executive Privilege: The Withholding
of Information by the Executive Before the
Subcommittee on Separation of Powers,
Committee on the Judiciary, United States
Senate, 92nd Congress, 1st Session (1971)
Wilson, Congressional Government, 303 (1885)

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-1026

UNITED STATES OF AMERICA,

Petitioner

V.

MIKE GRAVEL, United States Senator,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE SENATE OF UNITED STATES
Amicus Curiae

The Senate of the United States hereby appears as amicus curiae pursuant to Senate Resolution No. 280* and with the consent of the Solicitor General of the United States and Senator Gravel. Copies of the letters of consent have been filed with the Clerk's Office.

INTEREST OF THE AMICUS CURIAE

In light of the questions presented, which directly concern the scope and validity of the constitutional privilege created by the "Speech or Debate" Clause of the United States

*The Resolution appears as Appendix A hereto.

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